Humble v Hooper Motor Co Pty Ltd - [2000] WADC 109

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HUMBLE -v- HOOPER MOTOR CO PTY LTD & ANOR [2000] WADC 109

CORAM: WISBEY DCJ

HEARD: 19 APRIL 2000

DELIVERED : 28 APRIL 2000

FILE NO/S: CIV 1784 of 1999

BETWEEN: GREGORY HUMBLE
Plaintiff
AND
HOOPER MOTOR CO PTY LTD
Defendant
SHIRE OF BUSSELTON
Third Party

Catchwords:

Torts - Joint or several tortfeasors - Contribution - Liability in respect of "same damage" - Whether third party caused same injury

Legislation:

Law Reform (Contributory Negligence & Joint Tortfeasors) Act 1947 s7(1)(c)

Result:

Application allowed and third party notice struck out

Representation:

Counsel:

Plaintiff:     No Appearance
Defendant:     Mr J R Criddle
Third Party                   :     Mr P McCann

Solicitors:

Plaintiff:     No Appearance
Defendant:     J R Criddle
Third Party                   :     Phillips Fox

Case(s) referred to in judgment(s):

Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323
Mahoney v J Kruschich (Demolitions) Pty Ltd (1985) A Tort Rep 80-320

Case(s) also cited:

Nil

WISBEY DCJ: On 5 May 1999 Gregory Humble (the plaintiff) issued a writ against his employer Hooper Motor Co Pty Ltd (the defendant) claiming damages for personal injuries sustained by him in the course of his employment with the defendant in or about June 1995.
In the statement of claim filed 10 June 1999 the plaintiff alleged that in or about June 1995, whilst in the course of his employment as a motor mechanic/assistant service manager, he suffered severe back pain whilst carrying out mechanical repairs to vehicles positioned on a hoist in the workshop.
The injuries allegedly sustained by the plaintiff are particularised in para 7 of the statement of claim as:
(a)large central L5/S1 disc protrusion;
(b)severe lumbar back pain (a symptom not an injury);
(c)disc bulge at L4/5 level.
The plaintiff claimed that the injuries truncated his social and vocational activities.
In the defence filed 2 July 1999 the defendant denied negligence; admitted that the plaintiff sustained a disability entitling him to benefits pursuant to the Workers Compensation & Rehabilitation Act 1981; and otherwise put the plaintiff to the proof of injury, loss and damage. It is to be noted that the pleading does not deny that the plaintiff did not sustain the injuries alleged in the statement of claim, or suggest that there was a recurrence or aggravation of a pre‑existing condition.
On 1 July 1999 the defendant filed and served a third party notice to the Shire of Busselton (the third party) claiming contribution or indemnity pursuant to s7(1)(c) of the Law Reform (Contributory Negligence & Joint Tortfeasors) Act 1947. The notice asserted that on 6 July 1992, whilst in the employ of the third party, the plaintiff "suffered an injury to his lumbar spine". The notice then asserted that "the Third Party is a tortfeasor which, if sued by the plaintiff, would have been liable to him for the same damage as that allegedly suffered by the plaintiff as a result of the defendant's alleged negligence". There is no express allegation in the notice that:
1.the injury to the plaintiff's lumbar spine was a consequence of the negligence of the Third Party; or
2.that the injury sustained by the plaintiff in the employ of the Third Party was the same, or one of the same injuries particularised in the plaintiff's action against the defendant (it is pleaded as an aggravation of the "injury" sustained in the employ of the defendant).
On 13 September 1999 the third party applied to strike out the third party notice as failing to disclose a reasonable cause of action, and that application came before the Deputy Registrar on 25 November 1999. The argument essentially concerned the relationship of the facts to s7(1)(c) of the Law Reform (Contributory Negligence & Tortfeasors) Contribution Act 1947 which relevantly states:
"Where damage is suffered by any person as a result of a tort … 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 … ."
The third party asserts that there is no suggestion that the damage suffered by the plaintiff in the employ of the third party, is the same damage as that central to the plaintiff's cause of action against the defendant.
The third party relied upon the decision of the High Court in Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323. As the headnote indicates the circumstances of that case were that:
"A workman sued his employer for damages for personal injury suffered by him in the course of his employment and alleged to have been caused by the defendant's negligence. The defendant sought contribution from a former employer of the plaintiff on the ground that while in the earlier employment the plaintiff had suffered injury due to the negligence of that employer of a like kind to that for which he now sued."
The Court held that the relevant section of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (an identical provision to s7) dealt only with the case of joint or concurrent tortfeasors in relation to the same injury, and did not apply where there were successive injuries, unrelated both in occasion and in cause, by tortfeasors where each was not a tortfeasor in respect of both those injuries.
The Deputy Registrar considered that Dillingham had effectively been overruled by Mahoney v J Kruschich (Demolitions) Pty Ltd (1985) A Tort Rep 80-320. A reading of each decision demonstrates clearly that there is no difference in point of principle; the difference being as to the application of the facts to the principle enunciated. The Court made it clear in Mahoney that concurrent tortfeasors whose acts or omissions occur successively rather than simultaneously, may both be held liable for the same damage if the damage is a foreseeable consequence of both torts, although one is liable only for some of the damage for which the other is liable. It pointed out that a negligent tortfeasor would be liable for the consequences of a plaintiff's subsequent injury, even if the subsequent injury was tortiously inflicted, if the subsequent tort and its consequences were themselves properly regarded as foreseeable consequences of the first tortfeasor's negligence, or if the chain of causation has not been broken by a novus actus interveniens. There is no suggestion in Mahoney that the principle enunciated in Dillingham, namely that the relevant section does not apply where there are successive injuries, unrelated both in occasion and in cause, is not good law.
The defendant relies upon Mahoney's case, and asserts that if, upon the trial of the third party issue, it is established that all or part of the plaintiff's pleaded injuries are a foreseeable consequence of the events that occurred on 6 July 1992, then provided negligence is established, it will be entitled to contribution. It says that on basis the notice is competent.
Order 19 rule 1 of the Supreme Court Rules requires that a third party notice contain a statement of the nature and grounds of the claim made against the third party. That is, although in summary form, it must articulate the cause of action against the third party. The notice under consideration does not do that, and that deficiency on its own is probably sufficient to dispose of this application. Quite apart from that deficiency, when one has regard to the pleaded issues in the principal action, there is no suggestion by the defendant that the plaintiff's injuries, which are an essential part of the cause of action, were other than a result of the defendant's negligence. That is the basis on which this action proceeded to consent judgment in favour of the plaintiff.
In all the circumstances the notice should be struck out.