Unsworth v Commissioner for Railways

The plaintiff's husband was fatally injured when a motor car in which he was a passenger, driven by the appellant, ran into some railway trucks which had been stopped at a level crossing in consequence of a collision with a semi-trailer. The jury assessed the total damages suffered by the widow and children in consequence of the fatality at £5,615. The jury's findings establish that the collision between the motor car and the railway trucks was caused by the combined negligence of the appellant and respondent, and that their shares of blame are respectively fifteen and eighty-five per cent. The jury also found that the motor car was the property of the plaintiff and her husband and was being driven by the appellant as the agent of the deceased.

In the action, the trial judge gave judgment on the cause of action under s. 12 for the plaintiff against Norman Unsworth, the appellant, for £5,615 and against the Commissioner for Railways, the respondent, for £1,700.

It would appear that the judgment for £1,700 was given against the respondent upon the view that an action under s. 12 of The Common Law Practice Acts 1867 to 1940 Q. is within the case referred to by the words "if the personal injury results in death" in s. 121 of The Railways Acts 1914 to 1955 Q., the limit of damages recoverable against the respondent therefore being £2,000; and upon the view that the damages recoverable by the plaintiff from the respondent should be reduced to £1,700 under s. 10 (4) of The Law Reform (Tortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act of 1952 Q., because of the negligence of Norman Unsworth, whose share of the blame was fifteen per cent. As already stated Norman Unsworth was driving the motor car in the course of his authority as the deceased's agent. It follows from this fact that his negligence must, so far as the claim against the Commissioner for Railways is concerned, be imputed to the deceased. ( Salmond on Torts, 12th ed. (1957), p. 456.) There is no appeal against either judgment which was given for the plaintiff.

The judgment which was entered in the proceedings for contribution in respect of such judgment is as follows: - "And it is further adjudged that should Norman Unsworth pay the said sum of £5,615 he shall then be entitled to recover by way of contribution the sum of £1,700 from the Commissioner for Railways whose liability to the plaintiff in respect of the said sum of £1,700 shall be discharged by such recovery; and should the Commissioner for Railways pay the said sum of £1,700, the Plaintiff shall then be entitled to recover only the sum of £3,915 from the defendant Unsworth so that in no event shall the plaintiff be entitled to recover a total amount of more than £5,615 by way of damages". The appellant seeks an order that this judgment be set aside and that in lieu thereof judgment be entered whereby the appellant would be entitled to recover contribution from the respondent up to the limit of eighty-five per cent of £5,615, or alternatively, of £2,000.

For the purposes of this appeal, the judgment given for the plaintiff against the appellant for £5,615 and against the respondent for £1,700 determines conclusively the amount recoverable from them respectively for the damage suffered by the widow of the deceased in consequence of his death, in respect of which the respondent and the appellant have been held liable. It is not in my opinion within the power of the Court under s. 6 of The Law Reform (Tortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act of 1952 to increase by a judgment for contribution the liability of a defendant in excess of the damages which are recoverable from him by the plaintiff. The judgment for contribution under appeal imposes upon the respondent the whole burden of the damages which are recoverable from him by the plaintiff. It is true that such judgment does not throw upon the appellant a burden which is limited to his share of responsibility for the damage suffered by the plaintiff and children for whose benefit she sued. But as the contribution recoverable by the appellant from the respondent cannot be determined otherwise than upon the basis that £1,700 only is recoverable by the plaintiff from the respondent in respect of the relevant damage, I think that it cannot be held not to be just and equitable under s. 6 of The Law Reform (Tortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act of 1952, so far as the appellant is concerned, to throw upon the respondent the whole burden of that amount. In view of the determination, by the judgment in the action against the respondent of his liability in respect of such damage at £1,700, I think that no more favourable judgment for contribution could be given in the appellant's favour than that he should recover by way of contribution from the respondent an amount equal to the damages recoverable by the plaintiff from the respondent.

The judgment for £1,700 against the respondent is final and conclusive of the amount of damages recoverable against the respondent. I therefore find it unnecessary to decide whether it proceeded upon a right construction of s. 121 of The Railways Acts in respect of the questions whether that section applies to an action under s. 12 of The Common Law Practice Acts or to a claim for contribution under Pt. II of The Law Reform (Tortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act.

In my opinion the appeal should be dismissed with costs.

This is an appeal from a judgment of the Supreme Court of Queensland (Stanley J.). The judgment was pronounced on the trial of an action with a jury, and was founded on the verdict of the jury, but no objection has been taken to the competency of the appeal, and it would appear that no such objection lies. The reason is that no attack is made on any of the findings of the jury, and the only question raised is as to the judgment which ought to have been entered upon those findings. The rule laid down in Musgrove v. McDonald [1] and applied on a number of occasions since, is based on the view that this Court can do no more than the trial judge could have done at the stage when he gave judgment. It was thus stated by Dixon J. in McDonnell & East Ltd. v. McGregor [2] : "If the court below takes a general verdict or findings from a jury and if, after having done so, it has no authority under the law governing its procedure to interfere with the verdict or findings of the jury or to disregard them but is required to give effect to them, then this Court stands in a like position and cannot go behind the verdict or findings" [3] . The position is different where, as here, the findings of the jury are accepted by the appellant and his only contention is that an erroneous judgment was entered upon those findings.

1. (1905) 3 C.L.R. 132. 2. (1936) 56 C.L.R. 50. 3. (1936) 56 C.L.R., at p. 54.

The case arises out of a collision between a motor car and a train at a railway level crossing on the Brisbane-Ipswich road at about 12.30 a.m. on 19th August 1953. The car was being driven by the appellant, Unsworth. The collision resulted in the death of one Allan George King, who was a passenger in the car. The action was commenced by Mary Eileen King, the widow of Allan George King and the executrix and sole beneficiary under his will. There were two defendants - the Commissioner for Railways and Unsworth. The plaintiff sued on two causes of action. The first was based on s. 15D of The Common Law Practice Acts 1867 to 1940 Q., which follows s. 1 of the Law Reform (Miscellaneous Provisions) Act 1934 Imp., and which, so far as material, provides that on the death of any person after 16th October 1940 all causes of action vested in him shall survive for the benefit of his estate. The second cause of action was based on ss. 12 et seq. of The Common Law Practice Acts which reproduce the provisions of Lord Campbell's Act. On this cause of action the plaintiff sued for the benefit of herself and three infant children.

Before considering further the course of the proceedings in the action it is desirable to refer to the two Queensland statutes out of which the questions argued on this appeal arise. The first is The Law Reform (Tortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act of 1952. Section 5, so far as material, provides that "where damage is suffered by any person as a result of a tort (c) Any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise." Section 6 of the same Act, so far as material, provides: - "In any proceedings for contribution under this Part of this Act the amount of the contribution recoverable from any person shall be such 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 ". The second relevant statutory provision is contained in s. 121 (1) of The Railways Acts 1914 to 1955, which, so far as material, provides: - "In any action brought against the Commissioner to recover damages or compensation in respect of personal injury, the Court or jury shall not find or assess nor shall judgment be given or entered for the plaintiff for any amount of money exceeding the amount following, that to say, - If the personal injury results in death, two thousand pounds ". The section also limits the amount recoverable in cases where the injury does not result in death.

In pursuance of s. 5 (c) of The Law Reform Act, and in accordance with the Rules of the Supreme Court of Queensland, each of the two defendants in the action delivered to the other a third party notice claiming contribution. The notices were in identical terms. Each defendant gave notice to the other that he "claims to be entitled to contribution from you in respect of any sum which the plaintiff may recover herein against him to the extent of such amount as may be found by the Court to be just and equitable having regard to your responsibility for such damages on the ground that your negligence contributed to the happening of the abovementioned collision."

The action came on for hearing before Stanley J. Having regard to the obvious potential difficulties created by the statutes and the third party notices, his Honour, with the concurrence of counsel for all parties, submitted eleven questions to the jury, which the jury answered. No general verdict was taken. It is not necessary to set out all the questions and answers. It is enough to state the last six findings of the jury. These were: - "6. That the Commissioner for Railways was guilty of negligence by his servants or agents. 7. That the defendant Norman Unsworth was guilty of negligence. 8. That the collision between the car and the train was due to the combined effect of negligence on the part of the Commissioner for Railways by his servants or agents and on the part of the defendant Norman Unsworth. 9. That it is just and equitable to allot eighty-five per cent of the responsibility for the negligence causing the collision to the Commissioner for Railways and fifteen per cent of the responsibility to Norman Unsworth. 10. That the expectation of life of Allan George King should be valued at the total sum of Five Hundred Pounds (£500). 11. That as a result of the death of Allan George King - (a) the sum of £1,865 represents the total loss suffered by his widow Mary Eileen King; (b) the sum of £1,075 represents the total loss suffered by his child Valmai Eileen King; (c) the sum of £1,275 represents the total loss suffered by his child Patrick Allan King; (d) the sum of £1,400 represents the total loss suffered by his child Kathleen Margaret King." The total of the amounts thus allocated by the jury on the claim under Lord Campbell's Act is £5,615. It should be mentioned that the jury also found, in answer to a question, that "at all material times the defendant Norman Unsworth was driving the motor car as the authorized agent of Allan George King, acting within the scope of his authority as such agent". Nothing now turns on this finding, though I shall have to mention it in passing later.

The learned trial judge, before pronouncing judgment on the findings of the jury, considered certain questions of law. He held that both the claim under s. 15D of The Common Law Practice Acts and the claim under Lord Campbell's Act were claims "to recover damages or compensation in respect of personal injury" within the meaning of s. 121 of The Railways Acts. This view would appear at first sight to be relevant only as between the plaintiff and the commissioner, but, so far as the claim under Lord Campbell's Act is concerned, it was challenged by the appellant Unsworth in manner which will appear.

His Honour next considered whether The Law Reform Act of 1952 bound the Crown or the commissioner (see s. 8 (1) of The Railways Acts), and he referred to the recent decision of the Full Court of South Australia in Hall v. Bonnett [1] . Without deciding as to the position of the Crown generally, he held that the commissioner was bound by, and entitled to the benefit of, The Law Reform Act. He also held, in effect, that, although the claim under s. 15D of The Common Law Practice Acts and the claim under Lord Campbell's Act were brought in the one action, they constituted two distinct claims, to each of which the limit of £2,000, imposed by s. 121 of The Railways Acts was applicable. Finally his Honour held that the claim under Lord Campbell's Act was, for the purposes of s. 121, a single claim on which not more than £2,000 could be recovered against the commissioner: it could not be regarded as involving four claims, one by the widow and one by each of the three children. On none of these points was his Honour's decision challenged on this appeal, and no ground for challenge suggests itself.

His Honour then pronounced his judgment. On the claim under s. 15D of The Common Law Practice Acts he gave judgment for the plaintiff against Unsworth for £540 5s. 0d. (being the amount awarded by the jury for loss of expectation of life plus £40 5s. 0d. for funeral expenses) and against the commissioner for £459 4s. 3d. (being eighty-five per cent of £540 5s. 0d.) with a provision for contribution as between Unsworth and the commissioner in the proportion of fifteen per cent and eighty-five per cent. The reason why his Honour gave judgment against the commissioner for only eighty-five per cent of the total damages assessed is to be found in the finding of the jury that Unsworth was driving the car as agent for the deceased. The deceased being thus responsible for Unsworth's negligence, the plaintiff's damages against the commissioner were reduced by fifteen per cent under s. 10 of The Law Reform Act of 1952, which alters the common law in relation to contributory negligence. There is no challenge to this part of the judgment.

As to the claim under Lord Campbell's Act, what his Honour said was: "On the s. 12 claims, in my opinion judgment should be given for the plaintiff against Unsworth for £5,615 allocated as found by the jury, and against the Railway Commissioner for £1,700 allocated between the widow and children in the proportions found by the jury; provided that, if Unsworth pays the said sum of £5,615, he shall be entitled to recover by way of contribution £1,700 from the Railway Commissioner, and, if the commissioner shall pay the said sum of £1,700, the plaintiff shall not be entitled to recover more than £3,915 from Unsworth, and that in no event shall the plaintiff be entitled to recover an amount of more than £5,615 by way of damages." The formal judgment entered was in accordance with this pronouncement. From this part of the judgment Unsworth now appeals. The plaintiff has not been made a party to the appeal, the only respondent being the Commissioner for Railways.

The contention of the appellant is that he is entitled to receive by way of contribution from the commissioner not eighty-five per cent of £2,000, which is £1,700, but eighty-five per cent of £5,615, which is £4,772 15s. 0d. He maintains that his claim for contribution is not an action to recover damages or compensation in respect of personal injury within the meaning of s. 121 of The Railways Acts, and that the limit imposed by that section on the amount recoverable from the commissioner does not apply to his claim. He is, in my opinion, right in this contention. It may be conceded that, although his claim to recover contribution was made not in a separate action but by way of third party notice in the plaintiff's action, it was equivalent to a proceeding by way of action and should be regarded as an action within the meaning of s. 121. It is true that some support for the contrary view might be thought to be found in what was said by Bankes L.J. in Tuckwood v. Rotherham Corporation [1] . I feel no doubt, however, that the correct view on the point which arose in that case is the view suggested by Atkin L.J. [2] . But the proceeding was not, in my opinion, an action to recover damages or compensation. The proceedings to which those words refer are, I think, proceedings taken to enforce liability for acts or omissions which are wrongful as against the person taking those proceedings. Proceedings to obtain contribution in pursuance of the new statutory right given by The Law Reform Act are not such proceedings.

1. (1921) 1 K.B. 526, at p. 532. 2. (1921) 1 K.B., at p. 540.

The view above expressed receives strong support from the decision of the Court of Appeal in Tuckwood v. Rotherham Corporation [3] , to which reference has already been made, and from the decision of the Full Court of New South Wales in Nickels v. Parks [4] . Those decisions seem to me to be clearly correct, and, although they were decided under different statutes, I think that they directly cover the present case. With regard to the opinion expressed by O'Bryan J. in Australian National Airways Pty. Ltd. v. Vines [5] I am of opinion that the doubt expressed by Coppel A.J. in Knowles v. Sheen [6] was well founded. The opinion of O'Bryan J. was expressed in the course of a trial with a jury, and his Honour does not seem to have been referred either to Tuckwood v. Rotherham Corporation [3] or to Nickels v. Parks [4] . The matter is put very clearly by Jordan C.J. in the latter case [7] . His Honour observes that Tuckwood's Case [3] was not cited to Birkett J. in Merlihan v. A. C. Pope Ltd. [8] , which was not followed by Cassels J. in Hordern-Richmond Ltd. v. Duncan [9] .

1. (1921) 1 K.B. 526. 2. (1948) 49 S.R. (N.S.W.) 124; 65 W.N. 273. 3. (1950) V.L.R. 510, at p. 512. 4. (1953) V.L.R. 109, at p. 110. 5. (1921) 1 K.B. 526. 6. (1948) 49 S.R. (N.S.W.) 124; 65 W.N. 273. 7. (1948) 49 S.R. (N.S.W.), at pp. 129, 130; 65 W.N., at p. 276. 8. (1921) 1 K.B. 526. 9. (1946) K.B. 166. 10. (1947) K.B. 545.

The above conclusion, however, is not the end of the matter. If it were the end of the matter, it would lead to the very remarkable result that the commissioner might be liable to a plaintiff only to the extent of £2,000, but liable to pay many thousands of pounds by way of contribution to another tortfeasor. In other words, he might, where he was only partly responsible for the damage, be compelled to pay much more than if he were solely responsible for it. But the conclusion so far reached means only that s. 121 does not operate directly to limit the amount recoverable by the appellant from the commissioner by way of contribution. We have still to turn to s. 5 (c) of The Law Reform Act to see what the appellant's rights against the commissioner are. His right is to recover "contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage". Mr. Mylne said that the commissioner was another tortfeasor who was liable with Unsworth for the wrongful causing of the death of King, and that s. 5 (c) had no bearing on the quantum of the contribution recoverable. But it is, in my opinion, clearly implicit in s. 5 (c) that the amount of the liability to pay contribution cannot be greater than the amount of the primary liability. Contribution can only be recovered from one who "is, or would if sued have been, liable" to pay damages to the person injured. A person cannot be said to be so liable except to the extent to which damages can be recovered from him at law. In any case, I do not think that it could be lawfully held to be "just and equitable" within the meaning of s. 6 of The Law Reform Act that a person should be ordered to pay by way of contribution to another tortfeasor a larger amount than he could be compelled to pay to the person injured.

Mr. Mylne sought a way of escape from this position by maintaining that the plaintiff in the action (Mrs. King) was in law entitled to recover (though she has not in fact recovered) against the commissioner the full amount of £5,615 awarded by the jury. He said that an action under Lord Campbell's Act was not an "action to recover damages or compensation in respect of personal injury" within the meaning of s. 121 of The Railways Acts, and that that section had, therefore, no application to the plaintiff's claim. But I agree with the view of Stanley J. on this point. I would concede that the natural reading of the words "action brought to recover damages or compensation in respect of personal injury" is to read them as referring to personal (i.e. physical) injury to the plaintiff himself or herself. But the prepositional phrase "in respect of" is wider that the preposition "for", and the words are capable of referring to cases where the cause of action arises out of personal injury but the plaintiff is someone other than the person injured. And the specific reference to personal injury resulting in death is decisive, in my opinion, to show that the introductory words of the section include actions under Lord Campbell's Act.

Mr. Mylne finally contended, on the assumption that s. 121 applied to the plaintiff's claim, that she was entitled to recover against the commissioner not £1,700 but £2,000, and that Unsworth was therefore entitled to recover by way of contribution from the commissioner not £1,700 but £2,000. The first part of this argument is, in my opinion, correct. I think that the judgment for the plaintiff against the commissioner ought to have been for £2,000, and not for £1,700. Stanley J. arrived at the latter sum by taking eighty-five per cent, which was the jury's assessment of the proportional responsibility of the commissioner, and applying it to the maximum amount (£2,000) which s. 121 allowed the plaintiff to recover. I can, with respect, see no justification for this. It seems clear to me that the correct course in such a case is to ascertain the amount for which the commissioner would be liable to the plaintiff apart from s. 121, and then, if the amount so ascertained exceeds £2,000, give judgment for £2,000: cf. Marks v. Victorian Railways Commissioners [1] .

The question remains whether effect can be given to this view in favour of the appellant on this appeal. As matters stand, the amount of the commissioner's liability to the plaintiff is fixed by her judgment against the commissioner at £1,700, and, as I have said, one tortfeasor cannot, in my opinion, be compelled to pay by way of contribution to another tortfeasor a greater sum than he is liable to pay to the person who has suffered the wrong. It follows that, while the amount of the plaintiff's judgment against the commissioner stands at £1,700, the appellant Unsworth cannot recover from the commissioner by way of contribution any greater sum by way of contribution than £1,700. On this aspect of the case, however, I agree with what is said by Taylor J. in the judgment prepared by him, and I agree with the order proposed by him.

In this appeal we are concerned with the problem of what orders for contribution, if any, should be made as between tortfeasors liable in respect of the same damage where the extent to which one of them is liable is limited by statute and where the jury's estimation of the victim's damages exceeds the prescribed limit. The problem, it may be said, represents yet another "product of the uncertainty" of the relevant legislation: Bitumen and Oil Refineries (Australia) Ltd. v. Commissioner of Government Transport [2] .

The bare facts which raise the problem may be shortly stated. Mary Eileen King (hereinafter referred to as the plaintiff) brought an action in the Supreme Court of Queensland for the benefit of herself and her children to recover damages for the loss sustained as the result of the death of her husband and their father. His death, it was alleged, resulted from the negligence of the defendant Unsworth, who is the present appellant, and that of the other defendant, the Commissioner for Railways in Queensland. Immediately prior to his death the deceased was travelling in a motor vehicle which collided at night-time with some unlighted trucks then standing on the commissioner's railway line at a level crossing. Unsworth was the driver of the motor vehicle in which the deceased was travelling and he was in control of the vehicle as the servant or agent of the deceased. Prior to the trial each defendant served upon the other a notice claiming an order for contribution pursuant to s. 5 (3) of The Law Reform (Tortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act of 1952.

In view of a number of difficulties which arose at the trial the learned trial judge thought it desirable to submit particular issues of fact to the jury and, apparently, with the approval of the parties this course was adopted. It is unnecessary to set out the findings of the jury in detail for sufficient foundation for an approach to the problems which remain for us to consider may be provided by saying that the jury found that the death of the deceased had resulted from the combined effect of the negligence of both defendants and that it was just and equitable to apportion the responsibility for the casualty as to eighty-five per cent to the commissioner and as to fifteen per cent to the defendant Unsworth. Thereafter the jury assessed the total loss suffered by the plaintiff and her children at £5,615.

It is convenient to mention at this stage that the defendant commissioner claimed to be entitled in the plaintiff's action to the benefit of the limitation provided by s. 121 (1) of The Railways Acts 1914 to 1955. That provision is in the following terms: - "In any action brought against the Commissioner to recover damages or compensation in respect of personal injury, the Court or jury shall not find or assess nor shall judgment be given or entered for the plaintiff for any amount of money exceeding the amount following, that is to say, - If the personal injury results in death, two thousand pounds; If the personal injury results in permanent disablement, two thousand pounds; If the personal injury results in temporary disablement, one thousand pounds". Again, the commissioner claimed that by reason of the provisions of s. 10 of The Law Reform Act, judgment could not be entered against him for any sum in excess of £1,700. In the result his Honour directed judgment against the commissioner for a total sum of £1,700 and against Unsworth for £5,615 and further directed that should Unsworth satisfy the judgment against him he should then be entitled to recover by way of contribution from the commissioner the sum of £1,700.

The defendant Unsworth now appeals against so much of his Honour's order as contained these directions and raises the following contentions. Initially it is said that the plaintiff's action was not, within the meaning of The Railways Acts, an "action brought against the Commissioner to recover damages or compensation in respect of personal injury" and, therefore, that the statutory limit set out in s. 121 (1) was inapplicable. Alternatively, it is said that s. 121 (1) had no application to the appellant's claim for contribution either directly or indirectly. That is to say that the claim for contribution was not, itself, a claim to recover damages or compensation in respect of personal injury and, further, that even if the plaintiff's rights against the commissioner were subject to the prescribed limit, this consideration should not affect the appellant's right to recover a "just and equitable contribution" to his own liability. Finally, it is said that there was, in any event, no warrant for reducing the amount of the commissioner's contribution to £1,700.

There is abundant authority for the proposition that a cause of action of the character given by s. 12 of The Common Law Practice Acts 1867 to 1940 is not "an action to recover damages or compensation in respect of personal injury": see British Colombia Railway Co. v. Gentile [1] ; Union Steamship Co. of New Zealand Ltd. v. Mary Robin [2] ; Nunan v. The Southern Railway Co. [3] and Victorian Railways Commissioners v. Speed [4] . If, therefore, the effect of s. 121 (1) of The Railways Acts is, merely, to prescribe limits to the damages which may be recovered in actions of that character there can be no ground for thinking that the plaintiff's judgment against the commissioner should be limited to the sum of £2,000. But upon examination it seems clear beyond doubt that the operation of s. 121 (1) is more extensive. True enough the opening words of the section speak only of actions brought to recover damages or compensation in respect of personal injury but when read as a whole it is seen that the section expressly deals with cases where personal injury results in death. In such cases the limit is £2,000. But when personal injury results in death there can, strictly speaking, be no subsisting cause of action for damages in respect of personal injury. It is, however, quite clear that the section was intended to prescribe a limit upon the amounts recoverable in any action against the commissioner for damages sustained as the result of the death of any person following upon personal injury. That being so, it is impossible to read the sub-section as applying merely to actions for damages in respect of personal injury. Rather it should be read as applying to any action for damages in respect of personal injury or in respect of the death of any person as the result of personal injury. This was the view of the learned trial judge and in my opinion he did not err in reaching this conclusion.

1. (1914) A.C. 1034. 2. (1920) A.C. 654. 3. (1924) 1 K.B. 223. 4. (1928) 40 C.L.R. 434.

The next question is whether the appellant's claim against the commissioner was "an action to recover damages in respect of personal injury". Clearly it was not. The cause of action given by s. 5 (3) of The Law Reform Act, is of an entirely different character; it is, in effect a claim for a partial indemnity, and, although one of the ingredients which must be established is that the person against whom the claim is made is a person "who is, or would if sued have been, liable in respect of the same damage", it is in no sense an action to recover damages in respect of personal injury. This view is inherent in such cases as Tuckwood v. Rotherham Corporation [1] ; George Wimpey and Co. Ltd. v. British Overseas Airways Corporation [2] and Nickels v. Parks [3] . In support of the contrary of this proposition some reliance was placed upon observations made in Hall v. Bonnett [4] , but the reasons given by the Full Court of South Australia for the answer to the second question raised by the case stated are directly opposed to the respondent's submission on this point.

1. (1921) 1 K.B. 526. 2. (1955) A.C. 169. 3. (1948) 49 S.R. (N.S.W.) 124; 65 W.N. 273. 4. (1956) S.A.S.R. 10.

The views already expressed make it necessary to consider a question which, upon the language of s. 5 (c) of The Law Reform Act, presents considerable difficulty. The question is whether the appellant, in pursuit of his right to contribution, is entitled to recover from the commissioner a sum in excess of that which the plaintiff was entitled to recover against the latter in her action. For the commissioner it is said with some force that it would create an anomalous situation if it should be held that his liability to contribute can exceed the amount of his original liability to the plaintiff whilst the appellant, on the other hand, points out that, in pursuing the cause of action created by s. 5 (c), it is unnecessary for him to show more than responsibility on the part of the commissioner for "the same damage" and, thereupon, to recover a contribution to his own liability which is "just and equitable having regard to the extent of" the commissioner's "responsibility for the damage". The latter expression the appellant interprets - and rightly so - not as a reference to the extent to which the commissioner might be made liable to pay damages to the plaintiff but as a reference to his degree of blameworthiness for the injuries which resulted in the death of the deceased.

The difficulty results, of course, from the fact that in drafting ss. 5 and 6 a situation of the character which now presents itself was not contemplated. These provisions take no account of the possibility that the liability of one of two tortfeasors to an injured party may be limited whilst that of the other is not and, although it may be thought easy to perceive reasons why the commissioner's liability to make a contribution should not exceed the amount of his original liability, one may seek in vain to discover in the language of ss. 5 and 6 any clearly expressed intention that this should be so. On the contrary it is, one may think, a problem to which the provisions pay no attention whatsoever. Moreover whichever way the problem be resolved anomalies will be created. If the commissioner's contentions are rejected the result will be that his liability as a person only partly responsible for personal injuries may well exceed the liability to which he would be subject if wholly responsible. On the other hand, as the appellant says, if the commissioner's contentions are accepted the result will be that the appellant, whose degree of responsibility was assessed at fifteen per cent only, will be called upon to meet the bulk of the damages recoverable by the plaintiff. In answer to this the commissioners says that the appellant's negligence rendered him liable at the suit of the plaintiff for the full amount of her damages, that apart from the statute he would have no right to recover a contribution of any kind and that the contribution now recoverable cannot exceed the amount of the commissioner's original liability. But the appellant contends that the statute quite plainly was intended to effect, ultimately, a just and equitable apportionment between two or more tortfeasors responsible for the same damage and that the basis of the apportionment is the degree of blameworthiness in each of those responsible and nothing more. That being so it is, it is said, of no consequence that the commissioner's original liability could not have exceeded £2,000. These are, however, not the only anomalies produced by the language of ss. 5 and 6 in cases such as the present. For instance the effect of sub-ss. (a) and (b) of s. 5 is to preserve to an injured person a right to maintain a claim for damages against one of two joint tortfeasors notwithstanding that judgment has already been recovered against the other. But s. 5 (b) provides that in any such case "the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of damages awarded by the judgment first given". The same restriction applies of course where successive actions are brought against tortfeasors whose separate acts of negligence have produced the same damage. Accordingly if the plaintiff's action had been brought against the commissioner only her subsequent rights against the appellant to recover damages would have been restricted to the sum of £2,000. It may, I think, fairly be said that no such anomalous result was intended but it is a result which the language of the sub-section clearly produces.

The legislative provisions are difficult but on the whole I am inclined to the view that the commissioner's contentions on this point should be accepted. It is true that his liability to make a contribution does not depend upon the circumstance that he is liable to the same extent as the appellant; it is sufficient if he is "liable for the same damage". It is true also that the language of s. 5 (c) has been chosen without regard to the difficulty which arises in the present case. But the right to contribution is dependent upon the fact of liability and it seems reasonably clear that if the plaintiff had recovered judgment against the commissioner for the sum of £2,000 and the commissioner had thereupon paid that sum to her the appellant could not, thereafter, have succeeded in his claim to recover a contribution. In such circumstances it would then have been impossible for the appellant to contend that the commissioner was a person "who is, or would if sued have been, liable in respect of the same damage". If this is so it would be anomalous to a degree to hold that he may now be required to contribute a sum in excess of that amount. This solution of the problem may be regarded as somewhat unsatisfactory but, if it is, it is because the language of the sub-section is obscure and incapable of ready application to the circumstances of cases such as the present. But, on the whole, the provision assumes the existence of a liability in the party from whom a contribution is sought and may fairly be taken to intend that, within the limits of that liability only, he may be called upon to make a contribution to the first tortfeasor.

The final question is whether the plaintiff was precluded by the provisions of s. 10 (1) of The Law Reform (Tortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act from recovering a verdict against the commissioner for more than £1,700, that is to say, eighty-five per cent of £2,000. The proposition that she was rests upon the view that the sum of £2,000 was, within the meaning of that sub-section, the amount of "damages recoverable" against the commissioner and that by reason of Unsworth's negligence as the servant or agent of the defendant the plaintiff's right to recover against the commissioner was limited to eighty-five per cent of that sum. It is, I think, clear that s. 10 (1) does not so operate. What that sub-section does is to enable a plaintiff to recover a proportion of his damage from a negligent defendant notwithstanding his own contributory negligence and it is apparent from the provisions of proviso (b) and those of sub-s. (6) of s. 10 that the initial assessment of the "damages recoverable" is to be made without regard to the existence of any statutory limit as to amount of which the defendant may, ultimately, take advantage. This was the view taken by a majority of the Full Court of Victoria in Marks v. Victorian Railways Commissioners [1] and in my opinion it is the correct view.

This means that the learned trial judge was in error in entering judgment against the commissioner in the sum of £1,700 only but since this judgment, whilst it stands, is the full measure of both the commissioner's original liability and his liability to contribute, the appellant's final point must also fail unless it is possible for us in these proceedings to increase the amount of that judgment to £2,000. There may be thought to be some difficulties in the way of doing this for the plaintiff did not appeal and, indeed, was not a party to the appeal. Again it may be thought doubtful whether an appeal against this part of his Honour's order is competent at the suit of the appellant. But he was a party to the original action and it is undeniable that he had an interest in maintaining that the death of the deceased was caused either wholly or partly by the negligence of the commissioner: cf. Hanson v. Wearmouth Coal Co. [2] and Walter H. Wright Pty. Ltd. v. The Commonwealth [3] . Equally, on the views already expressed, he had a direct interest in maintaining that the commissioner's liability was unlimited as to amount or, alternatively, limited only to the extent of £2,000. That being so he had, in my opinion, a right of appeal against that part of his Honour's order. The question whether judgment against the commissioner should have been limited to £1,700 was fully argued before us and both parties treated this point as before us and regarded the notice of appeal as sufficient to raise the point. In the circumstances I am of the opinion that we should increase the amount of the judgment against the commissioner unless the absence of the plaintiff makes it impossible for us to adopt this course.

1. (1939) 55 T.L.R. 747. 2. (1958) V.R. 318, at p. 321.

Rule 5 of the Appeal Rules provides that a notice of appeal shall be served upon every party "affected by the relief sought" by notice of appeal or "interested in maintaining so much of the judgment as is appealed from" and it is clear that the plaintiff should have been served with the notice of appeal. But it is equally clear that if she had been made a respondent she would have been a consenting party. We may, of course, even at this stage direct that she be added as a respondent (O. 70, r. 29) and, on the whole, I feel that, subject to the appellant taking the necessary steps to join her as a respondent to the appeal and obtaining and filing a memorandum of her consent, we should make an order giving appropriate relief to the appellant. Subject to this being done the appeal should be allowed and the order of the learned trial judge varied by substituting "£2,000" for "£1,700" wherever appearing and by making such consequential variations in the order as may be rendered necessary by such substitution. In the event of the plaintiff failing or refusing to consent to such an order the appellant should have liberty upon notice to her and to the commissioner to restore the appeal to the list for such further or other order as may be appropriate.