PARTIES: RIPPER, Maryte (by herself and as administrator of the estate of David Theo Ripper deceased)

GATENBY, Ian Guy (as executors of the estate of Robert Keith Gatenby deceased)

Insurance - Third-party liability insurance - In general - Relevant principles - Recovery from insurer when insured has died - Deceased covered by insurance contract but not a party to it.

Insurance Contracts Act 1984 (Cth), s51.

Torts - Law of torts generally - Joint or several tortfeasors - Contribution - Generally - Relevant principles - Nature of remedy - Claim for indemnity from insurer.

Wrongs Act 1954 (Tas), ss3(1)(b), 3(3)(b), 3(3)(e).

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, referred to.

Torts - Negligence - Fatal accidents legislation - Defence - Bringing and conclusion of another action for same subject-matter of complaint.

Fatal Accidents Act 1934 (Tas), s6(1).

M'Cabe v Great Northern Railway Co of Ireland [1898] 2 IR 123; Morton v Grand Trunk Railway Co (1904) 8 OLR 372; Erwin v Shannon's Brick, Tile and Pottery Co Ltd (1938) 38 SR (NSW) 555; Avery v London and North Eastern Railway Co [1938] AC 606; Cooper v Williams [1963] 2 QB 567; Jacobson v Taylor (Cosgrove J, 79/1984), referred to.

Judgment Number: [2002] TASSC 45

MARYTE RIPPER (by herself and as administrator of the estate of

David Theo Ripper deceased), KRISTINA FRANCES RIPPER

and ANITA LOUISE RIPPER v HERBERT DAVID TAYLOR GATENBY,

(as executors of the estate of Robert Keith Gatenby deceased)

AUSTRALIAN AVIATION UNDERWRITING POOL PTY LTD (Third Party)

1 This action relates to the fatal crash of a light aircraft on 31 October 1992. The pilot and a passenger were killed. The plaintiffs are the widow and daughters of the passenger, the widow being the administrator of his estate. The defendants are the executors of the pilot's estate. The plaintiffs' claims are for damages pursuant to the Fatal Accidents Act 1934. They allege that the plane crash and the death of the passenger were caused by the negligence of the pilot. In the third party proceedings, the pilot's executors are seeking an indemnity from the third party, alleging that it is bound to indemnify them pursuant to a policy of insurance issued not to the pilot, but to an entity referred to as "Tasmanian Aero Club". The insurer admits that an aviation insurance policy issued by it to the Aero Club existed and, as far as I am aware, has not sought to take any point in relation to privity of contract. It contends that the activities of the pilot, at the time of the crash, were outside the scope of his licence and the policy.

2 This action was instituted by the filing of a writ on 24 August 1994. On 10 March 1995, the plaintiffs commenced a second action in respect of the death of the passenger. The only defendant to that action was the insurer. The plaintiffs sought damages pursuant to the Fatal Accidents Act, and relied on the Insurance Contracts Act 1984 (Cth), s51, in proceeding directly against the insurer. The insurer entered an appearance. Pleadings were exchanged. Particulars were delivered. However, on 24 June 1996 the parties to that action obtained a consent judgment for it to be dismissed, with an order than the plaintiffs pay the insurer's costs in the sum of $3,000. Although an appearance had been entered in this action in June 1995, it seems the plaintiffs' solicitors did not proceed with it until after the judgment had been entered in the second action. The plaintiffs' statement of claim in this action was not delivered until April 1997.

3 The insurer, having been joined as a third party in this action, contends that the bringing and dismissal of the second action preclude the plaintiffs from recovering damages in this action because of the Fatal Accidents Act, s6(1), which reads as follows:

"Not more than one action under this Act shall lie for and in respect of the same subject-matter of complaint."

4 Alternatively, the insurer contends that, the second action having been brought and dismissed, the Wrongs Act 1954 operates in such a way as to relieve it from any possible liability.

5 On 30 May 2002 Underwood J made consent orders in the following terms for the making of preliminary determinations in respect of the arguments raised by the insurer:

"i That the Court determine whether the Plaintiffs are prohibited from bringing or maintaining this action, as a result of the provisions of section 6(1) Fatal Accidents Act 1934 in that the Plaintiffs have bought [sic] and concluded another action in this Honourable Court, based on the same matters pleaded by them by Action No 335/1995;

ii In the alternative, that the Court determine whether the third party is relieved from liability to make any contribution to the Defendant [sic] as a result of accord having been reached with the Plaintiff [sic] herein, by virtue of the Judgment entered in favour of the Third Party in Action No 335/1995 as aforesaid in accordance with the provision of the Wrongs Act 1954 (Tas) section 3 and section 5."

6 Although order (ii) purports to require a determination as to whether the third party is relieved from liability to make "contribution", the pilot's executors' claim against it is not for contribution but for a complete indemnity. Plainly order (ii) was intended to require a determination as to whether the insurer was relieved from liability in respect of that claim for an indemnity. I will treat it as having that meaning.

Fatal Accidents Act 1934, s6(1)

7 The insurer contends that both actions were brought by the plaintiffs "in respect of the same subject-matter of complaint" within the meaning of s6(1). They were brought by the same plaintiffs. In both actions, it was alleged that the aircraft crash and the death of the passenger were caused by the negligence of the pilot. The particulars of negligence in the two statements of claim are similar but not identical. Each statement of claim alleges that, as a result of the death of the passenger, the plaintiffs have been deprived of his support and maintenance, and the benefit of his services.

8 At common law, the dependent relatives of a person who died as a result of a tort had no right to sue the tortfeasor for damages. The law was reformed in England by the enactment of Lord Campbell's Act in 1846. Similar legislation has been enacted in many other jurisdictions. The Fatal Accidents Act is the Tasmanian version of Lord Campbell's Act.

9 The Fatal Accidents Act has copied the procedural provisions in Lord Campbell's Act. With a view to administrative simplicity, it provides for only one action to "lie for and in respect of the same subject-matter of complaint": s6(1). That action is to "be for the benefit of the members of the family": s5. That is to say, the claims of every dependant are required to be included in a single action. Section 5 goes on to provide that, subject to the Act, the action is to "be brought in the name of the executor or administrator of the person deceased". Under s8, an action can be brought in the name of the beneficiaries if the executor or administrator does not sue within six months after the death of the deceased, or if there is no executor or administrator. Since all dependants' claims are joined in one action, it is possible for a defendant to make a single payment into court, without specifying the shares into which it is to be divided: s9.

10 There are several reported cases concerning situations in which two actions were brought in respect of a single death. In Morton v Grand Trunk Railway Co (1904) 8 OLR 372, two women brought actions under the Ontario equivalent of Lord Campbell's Act, each claiming to be the widow of the same dead man. The defendants applied for an order staying or dismissing one of the actions, or for an order consolidating them. At first instance, that application was dismissed, but on appeal the Divisional Court (Meredith CJCP, McMahon and Teetzel JJ) decided that the proper course was for the claims of both "widows" and their children to be prosecuted in the first action, with the second action being stayed.

11 In Erwin v Shannon's Brick, Tile and Pottery Co Ltd (1938) 38 SR (NSW) 555, separate actions were brought, first by the father of the deceased and then by his mother. The father, without the authority or consent of the mother, compromised and settled his action without formally discontinuing it, and apparently without any judgment being entered. He had not made or prosecuted any claim for the benefit of the mother in his action. The mother's action was instituted after the settlement. The defendant pleaded that the mother's claim was barred because her claim could have been litigated in the first action and that that action had been settled by the father in consideration of a payment to him. Jordan CJ, with whom Davidson and Bavin JJ agreed, held that that plea disclosed no matter in bar of the mother's action. The defendant had not pleaded that the father's action was still pending, and that the mother's claim ought to be prosecuted in that action. The judgment concerned only the effect of a settlement which the mother had neither authorised nor ratified. It was open to the mother to seek to have her claim litigated in the father's action, which had not been discontinued or dismissed.

12 A comment was made as to the impossibility of bringing a second action in Avery v London and North Eastern Railway Co [1938] AC 606. In that case the benefits for the families of a number of deceased workers had been maximised by some relatives pursuing claims under the Workmen's Compensation Act 1925 and by others claiming under the Fatal Accidents Act 1846. Lord Macmillan, with whose reasoning Lord Russell of Killowen agreed, said, at 619:

"... it still remains essential that one action only shall be brought and if any individual who has a claim is not either a plaintiff or mentioned in the particulars as a person on whose behalf the action is brought, so much the worse for that individual; he cannot bring a second action against the wrongdoer."

13 In Cooper v Williams [1963] 2 QB 567, separate actions were brought by the deceased's illegitimate daughter and his widow. The daughter's claim was compromised, and a consent order made staying all further proceedings in her action. The widow's writ was issued after the making of that order, and met with a defence that she was not entitled to proceed because only one action lay. She applied successfully for leave to intervene in the daughter's action, and for the removal of the stay. The Court of Appeal held that those orders had been properly made. At 581, Lord Denning MR said in relation to the widow's solicitors:

"They seem to have thought that she could pursue her claim for dependency separately from the child's action. In that they were clearly wrong."

14 In Jacobson v Taylor (Cosgrove J, 79/1984) the plaintiff had instituted an action in which judgment had been entered against her as a result of her failing to comply with an order for the answering of interrogatories. She brought a second action. Cosgrove J held, at 6, that she was entitled to do so in the light of the House of Lords' decision in Birkett v James [1978] AC 297, her first action having been dismissed without a determination on the merits.

15 In M'Cabe v Great Northern Railway Co of Ireland [1898] 2 IR 123, two actions were commenced under Lord Campbell's Act. The first was brought by a son of the deceased in his capacity as one of her next of kin. After the writ was issued, that plaintiff's brother obtained letters of administration and instituted a second action against the same defendants in his capacity as administrator of the estate of the deceased. He then moved for a stay of the first action. Boyd and Kenny JJ dismissed the motion, on the basis that the first writ had been issued in good faith at a time when there was no executor or administrator. As to the courses open to counsel for the defendants, Kenny J said at 126 - 127:

"He can either plead, as he says, in the second action, that there is a properly constituted suit for the same subject-matter pending, or move to stay the further proceedings in that action."

It is noted at the end of the report of that case, at 127, that the administrator appealed, and that his appeal was dismissed.

16 None of these cases concerned a situation where two actions had been instituted under Lord Campbell's Act or its equivalent, and one had proceeded to judgment either on the merits or by consent. It may very well be that Lord Macmillan was correct in Avery in saying that a second action cannot be brought against the wrongdoer. But here it was the second action that was dismissed, and it was not brought against the alleged wrongdoer or his executors, but against someone else's insurer.

17 Prior to an amendment in 1997, which is of no present significance, the Insurance Contracts Act 1984 (Cth), s51, read as follows:

(a) the insured under a contract of liability insurance is liable in damages to a person (in this section called the 'third party');

(b) the insured has died or cannot, after reasonable enquiry, be found; and

(c) the contract provides insurance cover in respect of the liability:

the third party may recover from the insurer an amount equal to the insurer's liability under the contract in respect of the insured's liability in damages.

(2) A payment under subsection(1) is a discharge, to the extent of the payment, in respect of:

(a) the insurer's liability under the contract; and'

(b) the liability of the insured or of his legal personal representative to the third party.

(3) This section does not affect any right that the third party has in respect of the insurer's liability, being a right under some other law of the Commonwealth or under a law of a State or Territory."

18 I think it is clear from the wording of s51(2) and (3) that Parliament did not intend the bringing of an action pursuant to s51(1) to extinguish the right of a claimant (ie, the person referred to in the section as the "third party") to bring a separate action against the insured in respect of the insured's liability. The liability of the insurer under a policy will often be less than the liability of the insured to such a claimant as the result of an excess, a deductible, a limit on the cover provided pursuant to the policy, or a term of the policy relating to some other matter. That is recognised by s51(2). The Insurance Contracts Act was enacted following the publication of the Australian Law Reform Commission Report No 20 "Insurance Contracts", which included the following at 210 (par340) in relation to the recommendations that gave rise to s51:

"These recommendations leave unaffected the third party's right to bring an action against the insured himself."

19 When Lord Campbell's Act was enacted in 1846, and when the Fatal Accidents Act was enacted in 1934, I do not think it was contemplated that there would be statutory short-cuts of the type now found in the Insurance Contracts Act, s51. When the Tasmanian Parliament provided that "Not more than one action under this Act shall lie for and in respect of the same subject-matter of complaint", it was seeking to avoid multiple actions being brought by various dependants of a single deceased person against the same alleged tortfeasor. Multiple actions would have involved risks of inconsistent verdicts, duplication of expense in litigating the same issues in two or more actions, and risks of new claimants emerging after defendants had paid damages and made financial arrangements based on assumptions that litigation was concluded. I therefore think s6(1) should be interpreted as prohibiting only a second or subsequent action seeking damages under the Act from the same alleged tortfeasor in respect of the death of the same deceased.

20 Further, I do not think it can be said that the plaintiffs' action against the insurer was for, or in respect of, "the same subject-matter of complaint" as their action against the pilot's executors. Their "complaint" against the insurer was that it had a contractual duty which it had not discharged, and that they were entitled to recover from the insurer a sum of money calculated by reference to their entitlement to damages. Their "complaint" against the pilot's executors was that the pilot had negligently caused the death of the passenger, and that they had suffered damage as a result.

21 For these reasons, I consider that the plaintiffs' action against the insurer was not an action prohibited by s6(1). If I am wrong as to that, the insurer was entitled to have that action, being the second to be instituted, dismissed. It did not defend the action on the basis that it was barred by s6(1), nor is there any suggestion that it was even aware at the time of the consent judgment of this action having been instituted. But I do not know what motivated the plaintiffs or their solicitors to consent to the dismissal of the second action. One possibility - and it is only a possibility - is that they considered it to be barred by s6(1). If it was so barred, and the insurer was therefore entitled to have it dismissed, it could not possibly follow that its dismissal by consent barred the plaintiffs from recovering in their original action.

22 In my view, the plaintiffs' claim fell outside the scope of the Insurance Contracts Act, s51, because the pilot was not "the insured" within the meaning of that section. The policy was issued to the Tasmanian Aero Club. The pilot, although not a party to the contract of insurance (ie, the policy), may have had a right to recover any loss from the insurer in accordance with that contract pursuant to the Insurance Contracts Act, s48. However, ss48(2)(a), 48(2)(b), and 48(3) each refer to the person with whom the insurer has contracted, as distinct from a person to whom the insurance cover extends who is not a party to the contract of insurance, as "the insured". The meaning of s51 is not affected by the non-exhaustive definition of the noun "insured" in s11 ("insured and insurer include a proposed insured and a proposed insurer, respectively"). The noun "insured" does not ordinarily refer to a person who is covered by someone else's insurance policy. There is nothing in the Insurance Contracts Act, nor in the report of the Australian Law Reform Commission that gave rise to it, to suggest that a wider meaning of the word was intended in s51. I therefore conclude that the noun "insured" in s51 refers only to a party to a contract of insurance, and does not include another person to whom the insurance cover provided by the contract extends. Thus, the plaintiffs had no right to proceed directly against the insurer under s51.

23 On that basis also, the insurer was entitled to have the second action dismissed. The plaintiffs had sued the wrong defendant. In my view the Fatal Accidents Act, s6(1) was not intended by Parliament to prohibit the bringing or continuing of an action against an appropriate defendant after an action against a wholly inappropriate defendant with no liability for damages had been dismissed. This is another reason why the dismissal of the second action does not operate to bar the plaintiffs from recovering their original action.

Wrongs Act 1954, s3

24 The insurer relies on the Wrongs Act, s3, which includes the following relevant subsections:

"3 - (1) Where damage is suffered by a person as the result of a wrongful act -

(a) judgment recovered against a person who is liable in respect of that damage is not a bar to an action against any other person who would, if sued by the person by whom the damage was suffered at the time when the cause of action arose, have been liable in respect of the same damage;

(b) if more actions than one are brought in respect of that damage by or on behalf of the person by whom it was suffered, or for the benefit of the estate, or of a dependant, of that person, against persons who are liable in respect of the damage the sums recoverable under the judgments given in those actions by way of damages shall not, in the aggregate, exceed the amount of the damages awarded by the judgment first given; and in any of those actions, other than that in which judgment is first given, the plaintiff is not entitled to costs unless the court is of the opinion that there was reasonable ground for bringing the action;

(c) a person who is liable in respect of that damage may recover contribution from any other person who is, or would, if sued by the person by whom the damage was suffered at the time when the cause of action arose, have been, liable in respect of the same damage but so that no person is entitled to recover contribution under this section from a person who is entitled to be indemnified by him in respect of the liability in respect of which the contribution is payable;

(d) a person may recover contribution or indemnity from another person who is, or would, if sued by the person by whom the damage was suffered at the time when the cause of action arose, have been, liable in respect of the same damage by settling with the person by whom the damage was suffered and thereafter commencing or continuing an action against the other person, in which case the first-mentioned person shall satisfy the court that the amount of the settlement was reasonable, and if the court finds that the amount of the settlement was excessive it may fix the amount at which the claim should have been settled.

(2) In proceedings for contribution under this section, the amount of the contribution that is recoverable from a person shall be such amount as may be found by the court to be just and equitable, having regard to the extent of that person's responsibility for the damage, and, for the purposes of this section, the court has power to exempt a person from liability to make contribution, or to direct that the contribution to be recovered from a person shall amount to a complete indemnity.

(3) A release of, or accord with, one person granted or made by a person by whom damage is suffered -

(a) does not discharge another person unless the release so provides; and

(b) relieves the person to whom it is granted or with whom it is made from liability to make contribution to another person -

and has effect to reduce the claim of the person by whom damage is suffered -

(c) in the amount of the consideration paid for the release or accord;

(d) in any amount or proportion by which the release or accord provides that the total claim of that person shall be reduced; or

(e) to the extent that the person to or with whom the release or accord is granted or made would have been liable to make contribution to another person if the total claim of the person by whom damage is suffered had been paid by the other person -

25 The insurer contends that s3(1)(b) operates to relieve it from liability. Its argument as to s3(1)(b) can be summarised as follows:

(i) The plaintiffs allege that damage was suffered by them as a result of one or more "wrongful acts", being the wrongful acts or omissions of the pilot.

(ii) More than one action has been brought in respect of that alleged damage.

(iii) Both actions were brought by the persons by whom that damage was allegedly suffered, namely the plaintiffs.

(iv) Both actions were brought against persons allegedly liable in respect of that damage, namely the pilot's executors and the insurer.

(v) Therefore the sums recoverable under judgments given in the two actions by way of damages must not, in the aggregate, exceed the amount of the damages awarded by the judgment first given.

(vi) The amount of damages awarded by the judgment first given was zero.

(vii) Therefore the maximum amount recoverable by the plaintiff under judgments in both actions must be zero, and they can recover nothing in this action.

26 However, in my view, s3(1)(b) was intended by Parliament only to apply if some amount was awarded by way of damages in the first of two or more judgments. The words, "the amount of the damages awarded by the judgment first given" reflect an unstated assumption that damages were in fact awarded by the judgment first given. If, as was the case with the consent judgment obtained by the insurer in the plaintiffs' second action, no damages were awarded, the factual situation to which s3(1)(b) was intended to apply does not exist, and s3(1)(b) has no application.

27 The insurer also relies on s3(3)(b). Its argument in relation to that provision can be summarised as follows:

(i) The obtaining of the consent judgment amounted, within the meaning of s3(3), to an accord with one person, namely the insurer, made by the persons by whom the damage was allegedly suffered, namely the plaintiffs.

(ii) That accord therefore relieved the person with whom it was made, namely the insurer, from liability to make contribution to another person.

(iii) The insurer therefore cannot be liable to make contribution to the pilot's executors.

28 Counsel for the pilot's executors submitted that their claim against the insurer is not a claim for contribution within the meaning of s3. If the insurer is under any liability at all, it has a contractual liability, pursuant to the policy issued to the Tasmanian Aero Club, to provide an indemnity to the pilot's executors in respect of their liability to pay damages to the plaintiffs out of the pilot's estate. If the plaintiffs are entitled to recover damages from the pilot's estate as a result of his negligence, and if the insurer is obliged under the policy to indemnify the executors, the executors are entitled to recover from the insurer an indemnity in respect of the plaintiffs' damages, to the extent that the policy provided cover. Although the pilot was not a party to the contract of insurance, his executors may proceed against the insurer pursuant to the Insurance Contracts Act, s48(1). The only remedy that they can have is an indemnity. The extent of the indemnity is governed by the contractual terms of the policy as to excesses, deductibles, maximum cover, and so forth.

29 The claims of the pilot's executors against the insurer are made in a third party notice and a statement of claim, both dated 20 October 1997. Neither is an example of perfection in drafting. The third party notice recites "that this action had been brought by the Plaintiff [sic] against the Defendants for damages in negligence ...", and goes on to say, "THE DEFENDANTS claim to be indemnified or entitled to contribution by you in respect of the said claim of the Plaintiffs against the Defendants on the ground either that the whole of the responsibility for such losses and damages (if any) as may have been sustained by the Plaintiffs are wholly or alternatively, substantially due by you". The document goes on to say that the claimed grounds of the defendants' entitlement to relief are more particularly pleaded in their statement of claim. The statement of claim pleads the policy, facts relevant to the cover provided by the policy, the crash, the death of the pilot and the passenger, the making of a claim on the policy, and the denial of liability by the insurer. The prayer for relief, which found its way into par8 of the statement of claim, includes the following:

(a) A Declaration that the Third Party is bound to indemnify R K G [the pilot] and/or the Assured [the Tasmanian Aero Club] in accordance with the provisions of the said Policy.

Despite the fact that the third party notice refers to contribution, and the fact that the statement of claim seeks a declaration as to an indemnity, and damages, but not an indemnity, I think it is clear enough that the pilot's executors' claim against the insurer is a claim for an indemnity, pursuant to the policy, in respect of any liability to the plaintiffs for damages.

30 A "liability to make contribution", within the meaning of s3(3)(b), is something very different from an insurer's liability to indemnify a person covered by a policy in respect of a liability for damages. Plainly, s3(3)(c) refers to the liabilities to make contribution that were created by s3(1)(c) and s3(1)(d).

31 At common law, when a person suffered damage as a result of the torts of two or more tortfeasors, those tortfeasors were unable to claim contribution from one another: Merryweather v Nixan [1799] EngR 669; (1799) 8 TR 186; 101 ER 1337. The law in relation to contribution between tortfeasors was reformed, first in England in 1935, and subsequently in all Australian jurisdictions. The Tasmanian Parliament enacted the Tortfeasors and Contributory Negligence Act 1954, which has since been renamed as the Wrongs Act. As originally enacted, s3(3)(b) read as follows:

"A release of, or accord with, one joint tortfeasor granted or made by a person by whom damage is suffered -

(b) relieves the joint tortfeasor to whom it is granted or with whom it is made from liability to make contribution to another joint tortfeasor ...".

32 By s4, the law relating to a plaintiff's contributory negligence was also reformed, so that a plaintiff's damages could be reduced because of contributory negligence "to such extent as the court thinks just and equitable, having regard to the claimant's share in the responsibility for the damage".

33 In Astley v Austrust Ltd (1999) 197 CLR 1 the High Court held that the equivalent legislative provision in South Australia did not operate so as to make contributory negligence a partial defence to a claim for damages for breach of a contractual duty of care. To overcome the effects of that decision, the 1954 Act was amended by the Tortfeasors and Contributory Negligence Amendment Act 2000. It was then that the Act was renamed the Wrongs Act. The amendments were retrospective: Wrongs Act, s5. They included amendments to s3, which relates to contribution, so as to produce that section's present wording. But the nature of a claim for contribution is still governed by the provisions of s3(2). It is of critical significance that that subsection provides that "the amount of the contribution that is recoverable from a person shall be such amount as may be found by the court to be just and equitable, having regard to the extent of that person's responsibility for the damage".

34 The words "that person's responsibility for the damage" refer to the causation of damage. In that sense, the insurer had no responsibility for the damage said to have been suffered by the plaintiffs. The pilot's executors' claim against the insurer is simply not a claim for such contribution as may be found by the Court to be just and equitable, having regard to the extent of the insurer's responsibility for the plaintiffs' damage. It is a claim for an indemnity pursuant to an insurance policy and the Insurance Contracts Act, s48.

35 Counsel for the insurer, Mr Morgan, referred me to Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 in another context. Anshun supports the view that a contractual indemnity claim is something different from a claim for contribution under apportionment legislation like the Wrongs Act, s3. Anshun concerned an injury to a man named Soterales. He sued the owner and hirer of a crane. They claimed contribution from one another. Soterales succeeded against both of them. The jury apportioned liability on the basis that the owner pay 90 per cent of the damages and the hirer 10 per cent. There was a contract between the owner and the hirer entitling the owner to a complete indemnity from the hirer. It sued on that contract in a second action. The High Court held that it was estopped from doing so. At 596, Gibbs CJ, Mason and Aickin JJ said:

"Indeed, by making a claim for contribution the Authority asserted a right which was inconsistent with the right which it asserts in the present action. In the Soterales action it might have asserted a right to indemnity and in the alternative a right to contribution. Instead, for reasons which have not been explained, the Authority confined itself to the claim for contribution."

36 Because the pilot's executors' claim against the insurer is not a claim for contribution under the Wrongs Act, s3, the argument based on s3(3)(b) must fail.

37 The insurer also relies on s3(3)(e). Its argument in relation to that provision can be summarised as follows:

(i) The obtaining of the consent judgment amounted, within the meaning of s3(3), to an accord with one person, namely the insurer, made by the persons by whom the damage was allegedly suffered, namely the plaintiffs.

(ii) That accord had the effect of reducing the claims of the plaintiffs.

(iii) The amount of the reduction had to be determined according to s3(3)(c), s3(3)(d), or s3(3)(e), whichever resulted in the greatest reduction.

(iv) The extent of the reduction under s3(3)(e) would be the extent to which the insurer (the person with whom the accord was made) would have been liable to make contribution to the pilot's executors if the total claim of the plaintiffs had been paid by the pilot's executors.

(v) If the total claim of the plaintiffs had been paid by the pilot's executors, and if the pilot's activities at the time of the crash were not such as to take him outside the scope of the policy, the insurer would have been liable to indemnify the pilot's executors fully, subject to any provisions of the policy as to excesses, deductibles, limits on cover, and so forth.

(vi) The amount by which the claim against the insurer is reduced under s3(3)(e) is therefore equal to the maximum amount that it could have been liable to pay.

(vii) Therefore s3(3)(e) must operate to extinguish the claims of the plaintiffs, at least to the extent to which the insurer was liable under the policy to provide an indemnity.

(viii) The obtaining of the consent judgment therefore resulted in any liability of the insurer being extinguished, and in the pilot's executors' liability (if any), being reduced to such part of the plaintiffs' damages (if any) as was irrecoverable under the policy.

38 This argument depends for its validity on the assumption that the words "would have been liable to make contribution" in s3(3)(e) relate not only to a liability under s3 to pay by way of contribution "such amount as may be found by the court to be just and equitable, having regard to the extent of ... responsibility for the damage", but also to a payment by way of total or partial indemnity pursuant to an insurance policy. Once again, I think the reference to having been liable to make contribution should be interpreted, because of the context, as relating only to contribution claims under s3, and not to indemnity claims not made under s3.

39 Mr Morgan drew my attention to the fact that, under s3(2), the Court may "direct that the contribution to be recovered from a person shall amount to a complete indemnity". The legislation in other jurisdictions as to contribution between tortfeasors gave rise to a series of authorities to the effect that contribution may amount to a full indemnity: McGrath v Fairfield Municipal Council [1985] HCA 33; (1985) 156 CLR 672 at 678 - 680; Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd [1986] HCA 34; (1986) 160 CLR 626 at 670. However it by no means follows that s3, which is concerned with responsibility for the causation of damage and the apportionment of blame, should be interpreted as applying to liabilities to indemnify pursuant to insurance contracts and the law relating to insurance.

40 In a written outline of his submissions, Mr Morgan relied on Anshun (supra), arguing that the plaintiffs could have joined both the executors and the insurer in one action, and that they should not be permitted to proceed against the executors after proceeding to judgment in their action against the insurer. This argument was not referred to in Mr Morgan's oral submissions. I reject it. Anshun establishes that a party who refrains from raising a claim closely connected with the subject matter of an action is estopped from raising that claim in a second action. It is distinguishable. It concerns a situation where separate claims are sought to be litigated in separate actions between the same parties. Here we have a situation where claims in respect of the same damage were made by the plaintiffs in different actions against different defendants.

41 Mr Morgan submitted that the consent judgment in favour of the insurer determined once and for all that the insurer was not, within the meaning of s3(1)(c), a person who "would, if sued by the person by whom the damage was suffered at the time when the cause of action arose, have been liable" in respect of the plaintiffs' alleged damage. The entry of that consent judgment no doubt gave rise to an estoppel, but Mr Morgan's submission gives rise to questions as to who is estopped, and as to what matters they are estopped from disputing.

42 The proper approach to the determination of such questions is succinctly stated in Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3 edn, at par39, as follows:

"Though consent judgments and orders are decisions and their operative parts binding, it may not be clear what questions were concluded. The court will examine the available evidence to ascertain the matters in dispute. Any issue which the parties recognised was the subject of the litigation and was fundamental to the judgment or order will be conclusively determined. Where, however, there are no such materials neither party is estopped from disputing anything but the actual judgment or order."

43 No defence based on the Fatal Accidents Act, s6(1) was pleaded in the second action. Mr Morgan tendered an answer to an interrogatory, and correspondence between the insurer's solicitors and the plaintiffs' solicitors. Those documents establish, in my view, that the insurer was unaware of the first action. I think it follows that the consent judgment did not determine any issue between the plaintiffs and the insurer as to the right of the plaintiffs to bring and continue the second action while the first action was pending. But otherwise I have no evidence that establishes that the parties intended the consent judgment to determine any particular issue or issues.

44 The issues in the concluded action included the question whether the passenger's widow had been appointed as the administrator of his estate, the question whether the plaintiffs had suffered damage in consequence of the passenger's death, the question whether the plaintiffs had the right to proceed directly against the insurer under s51, and the question whether the policy provided cover in the circumstances in which the aircraft crashed. The evidence before me does not establish which, if any, of these issues the parties considered fundamental to the consent judgment that they obtained. It is therefore not possible for me to make a finding that any of those issues were conclusively determined by that judgment. In these proceedings, the insurer bears the onus of establishing any defence based on res judicata or cause of action estoppel. It has not discharged that onus. The existence of the consent judgment does not establish that the insurer is not, within the meaning of the Wrongs Act, s3(1)(c), a "person who ... would, if sued by the person by whom damage was suffered at the time when the cause of action arose, have been liable in respect of the same damage".

45 The unavailability to the plaintiffs of the remedy conferred by the Insurance Contracts Act, s51, does mean that the insurer is not such a person. However, the consequence of that is that no claim for contribution under the Wrongs Act, s3, may be brought by the pilot's executors against the insurer. But that is not the claim that they are advancing against it. They are claiming an indemnity pursuant to an insurance contract and the Insurance Contracts Act, s48.

46 Mr Morgan made a submission to the effect that it would be inappropriate for the Court to allow a possibility of inconsistent judgments to arise, and that a judgment in the present action holding the insurer liable to indemnify the pilot's executors would be inconsistent with the consent judgment in the concluded action. I think there would be no inconsistency in such a situation, since the inapplicability of the Insurance Contracts Act, s51, to the plaintiffs' claims made the dismissal of the concluded action the only proper result for it.

47 For these reasons, I make determinations as follows:

1 The plaintiffs are not prohibited from bringing or maintaining this action as a result of the provisions of the Fatal Accidents Act 1934, s6(1), and the bringing and conclusion of action no 333 of 1995.

2 The third party is not relieved from liability to the defendants as a result of accord having been reached with the plaintiffs by virtue of the judgment entered in its favour in action no 335 of 1995 and the operation of the Wrongs Act 1954, ss3 and 5.