Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Mason and Murphy JJ.

DILLINGHAM CONSTRUCTIONS PTY. LTD. v. STEEL MAINS PTY. LTD.

(1975) 132 CLR 323

27 June 1975

Tort

Tort—Contribution between tortfeasors—Right of tortfeasor liable in respect of damage suffered as result of tort to recover contribution from another tortfeasor who if sued would have been liable in respect of same damage—Action by workman against employer for damages for personal injury—Claim by defendant against plaintiff's former employer for contribution on ground that while in its employ plaintiff suffered injury of like kind to that subject of present action—Whether maintainable—Law Reform (Miscellaneous Provisions) Act, 1946 (N.S.W.), s, 5(1)(c).

Decisions

June 27.
The following written judgements were delivered:-
BARWICK C.J. A workman in the employ of Steel Mains Pty. Ltd. (the cross-claimant) sued that company in the Supreme Court of New South Wales for damages for personal injuries received by him in the course of his employment and as the result of the negligence of his employer. The cross-claimant paid its workman workers' compensation, and filed a defence to the workman's action; but it also filed a cross-claim against Dillingham Constructions Pty. Ltd. (the cross-defendant) for contribution or indemnity in respect of any sum its workman might be awarded in the action and also in respect of the workers' compensation payment made by the cross-claimant. (at p324)

2. The basis of the cross-claim as set out therein was that the plaintiff in the action had been employed by the cross-defendant at a time prior to the commencement of his employment by the crossclaimant, and that whilst so employed had suffered by the negligence of his then employer injuries of a like kind to those for which the plaintiff was now suing in the action. The cross-defendant, the now appellant, moved the Supreme Court for an order striking out the cross-claim on the ground that it disclosed no reasonable cause of action. (at p325)

3. The cross-defendant's motion was heard by the Master of the Supreme Court, before whom it appeared that the plaintiff in the action had sued the cross-defendant in the Supreme Court for negligence in causing his personal injuries. In that proceeding, the workman had claimed for loss of earning capacity and the enjoyment of life by reason of the injuries received in the cross-defendant's employment, disabilities which he conceded ended at a date which was prior to his employment by the cross-claimant. The proceedings by the workman against the cross-defendant were settled by the entry of a verdict for the workman for a stated sum which, less the amount of workers' compensation paid, was duly paid to him. (at p325)

4. The Master, for reasons which I need not discuss, refused to strike out the cross-claim (1973) 1 NSWLR 175 . On appeal to a judge of the Supreme Court, the cross-claim was struck out, as "so obviously untenable that it cannot possibly succeed" (1973) 1 NSWLR 598, at p 602 . (at p325)

5. The cross-claimant brought…