Action for Contribution—Between tort-feasors—Judgment against tort-feasor—Claim from second tort-feasor—"who . . . would if sued . . . have been liable"—No temporal element involved in "if sued"—Law Reform (Miscellaneous Provisions) Act, 1946 (N.S.W.), s. 5 (1) (c)*.
Decisions
1966, February 25. The following written judgments were delivered: - BARWICK C.J. The demurrers in this case raise the proper construction of s. 5 (1) (c) of the Law Reform (Miscellaneous Provisions) Act, 1946 of the State of New South Wales which is in the following terms:
"Where damage is suffered by any person as a result of a tort . . . (c) any tort-feasor liable in respect of the damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same
damage, whether as a joint tort-feasor or otherwise . . . ". (at p217)
2. The respondent suffered judgment at the hands of one of his employees for damages in respect of an injury to him caused by the respondent's negligence. During the course of the proceedings brought against him by the workman, the respondent served a third party notice on the appellant claiming that the appellant by its tortious conduct had caused or contributed to the damage in respect of which the respondent was being sued and claimed contribution pursuant to s. 5 (1) (c). At the date when the respondent was sued by his employee less than six years had elapsed since the occurrence of the damage in respect of which the workman sued. But at the date when the respondent gave his third party notice to the appellant, more than six years had elapsed from the date of the occurrence so that had the respondent's workman sued the appellant at the date the third party notice was given or any time subsequent thereto and the appellant had pleaded in that action the appropriate Statute of Limitations, the appellant would not have had judgment given against it in respect of the workman's claim. The demurrers raise the question whether this circumstance affords the appellant a good defence to the respondent's claim for contribution. (at p217)
3. The unsatisfactory nature of the drafting of s. 5 (1) (c) has been commented upon in earlier cases. The general purpose of the provision is clear enough. It would seem that the legislature desired on the one hand to expose all tort-feasors who had caused or contributed to the same damage to suit by the injured party notwithstanding the recovery of judgment against any of them; and that each tort-feasor who came under an obligation to pay damages should have contribution from every other tort-feasor who had caused or contributed to the same damage. But the draftsman chose words which have caused considerable uncertainty as to what precisely the legislature has enacted. (at…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Brambles Constructions Pty Ltd v Helmers [1966] HCA 3
Case
[1966] HCA 3
Decision Date
CaseChat Overview and Summary
Brambles Constructions Pty Ltd (the appellant) and Mr Helmers (the respondent) were parties to a dispute concerning the construction of a retaining wall. The respondent had engaged the appellant to carry out the work, and following its completion, a dispute arose regarding the payment for the work. The matter proceeded to the High Court of Australia.
The central legal issue before the High Court was whether the respondent was liable to pay the appellant for the work performed in constructing the retaining wall, notwithstanding that the work may not have been completed to the precise specifications initially agreed upon. This involved an examination of the contractual relationship between the parties and the circumstances under which a party might be obliged to pay for work done even if it falls short of contractual requirements.
The High Court considered the principles of contract law, particularly in relation to partial performance and the acceptance of work. The Court reasoned that where a party has accepted work that has been performed, even if it is not entirely in accordance with the contract, they may be liable to pay a reasonable sum for the work done. The Court found that the respondent had, by his conduct, accepted the retaining wall as constructed, and therefore was obliged to make payment. The appeal was dismissed.