George Wimpey & Company Ltd v B.O.A.C.
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SINGLETON,LORD JUSTICE DENNING,LORD JUSTICE MORRIS |
| Judgment Date | 27 July 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J0727-3 |
| Docket Number | 1951 L. No. 999. |
| Court | Court of Appeal |
| Date | 27 July 1953 |
[1953] EWCA Civ J0727-3
Lord Justice Singleton
Lord Justice Denning and
Lord Justice Morris
In The Supreme Court of Judicature
Court of Appeal
Counsel for the Appellants (George Wimpey & Company, Ltd.): MR. KENNETH DIPLOCK, Q. C., and MR. STANLEY REES, instructed by Messrs Stanley & Co.
Counsel for the Respondents (British Overseas Airways Corporation, Third Party): MR. L.G. SCARMAN, instructed by Messrs J.H. Milner & Son.
On the 28th July, 1949, John Little-wood was employed by the British overseas Airways Corporation (the Corporation). He was working upon a vehicle known as a fork lift when a lorry belonging to George Wimpey & Company, Ltd. (Wimpeys) came into collision with it.
On the 26th April, 1951, Littlewood commenced proceedings against Wimpeys claiming damages for personal injuries which he alleged sere due to the negligence of their driver.
On the 20th June, 1951, Wimpeys delivered their Defence, which denied negligence and alleged that the accident was due to negligence of a servant of the Corporation.
On the 6th July, 1951, Wimpeys served a Third Party Notice upon the Corporation claiming contribution or indemnity.
On the 12th November, 1951, Wimpeys delivered their Statement of Claim against the Corporation, and the Corporation delivered their Defence thereto on the 28th November, 1951.
On the 4th February, 1952, the Plaintiff, pursuant to leave, amended his Writ and Statement of Claim by adding the Corporation as Defendants in the action. Both in the Third party proceedings and in their Defence to the Statement of Claim, as amended, the Corporation pleaded Section 21 of the Limitation Act, 1929, as one of their defences. It was said that at the time of the collision their servants were acting in intended execution of the Civil Aviation Act, 1946. Mr. Justice Parker held that this was so, and it is not now in dispute.
The action came on for hearing in January, 1953, and the judgment of Mr. Justice Parker which was given on the 5th February, was in favour of the plaintiff against Wimpeys. The Judge held that Section 21 of the LimitationAct provided a defence to the claim against the Corporation, and that the action failed as against them. Thereupon fee had to consider the claim of Wimpeys against the Corporation for contribution. Upon that claim the Judge held that Wimpeys Here not entitled to an Order for contribution against the Corporation, though but for the defence under section 21 he could have given judgment against them in the action, and in the Third party proceedings would have ordered them to contribute one-third of the damages.
Wimpeys appeal to this Court upon this last part of the judgment, and it is submitted that the Corporation ought to be ordered to make contribution.
The right to contribution in the circumstances of this case depends upon Section 6, sub-section (1) (c), of the Law Reform (Married Women and Tortfeasors) Act, 1935, which I read: "Where damage is suffered by any person as a result of a tort …(c) any tort-feasor liable in respect of that 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, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought." The machinery by which the right can be enforced is provided by Order 16 (a).
The decision of Mr. Justice Parker on the claim to contribution was based entirely on the wording of Section 6, subsection (1) (c). He held that the claim to contribution failed on the ground that it had not been shown that the Corporation was a tortfeasor who either "is liable, or would have been liable if sued". It is said on behalf of Wimpeys that the finding of the Judgethat the responsibility for the collision was to the extent of one-third upon the Corporation is sufficient to entitle Wimpeys to an Order for contribution, that their cause of action against the Corporation only arose upon judgment against them An the action; if it were otherwise, it was argued, the rights of the Defendant against the Third Party could be defeated by the plaintiff.
I repeat that which I have already said – he position is to be determined by Section 6, sub-section (1) (c), of the 1935 Act. It appears to me that the draftsman of the sub-section had in mind a suit in which there were one or more Defendants, and it was sought to provide that after judgment in the action contribution could be ordered as between the Defendants, and, further, that a tortfeasor who had not seen sued in the action, but who was brought in as Third party, might be ordered to make contribution if he would have been liable in respect of the same damage if he had been sued. In that way the natural meaning of the word "liable" in the first line of the sub-section is "held liable", and the words "who is…liable" two lines later would have the same meaning. I am prepared to assume that the meaning of "liable" ought not to be limited to "held liable", end that if a tortfeasor paid a claim he might have a right to contribution. In such a case he would have to prove: (a) That he was a tortfeasor; and (b) that he was liable at the time he paid. And it would be open to the one against whom contribution was claimed to raise any defence which was open to the one who claimed contribution.
The action by the Plaintiff was not commenced until 21 months after the commission of the tort. At that time an action against the Corporation could not have succeeded if Section 21 of the Limitation Act was pleaded. They were not held to be liable in the action in which they were subsequently added as Defendants. Mr. Diplocksought to establish that they were in the position of a tortfeasor who would, if suad, have been liable in respect of the same damage. Now I find difficulty in treating a tortfeasor who has been sued as though he had not been sued. And I find still greater difficulty in treating such a tortfeasor as one who would have been liable if he had been sued when he is sued in the action and is held not to be liable. I cannot see how a Judge who has held that a Defendant is not liable can immediately thereafter say that he would have been liable if he had been sued. The claim of Wimpeys can only succeed if one is to read into the sub-section after the word "sued" some such words as "in time" or "before any period of limitation had run". There may be omissions in the sub-section; it may not have provided for every eventuality; but it is not legitimate to introduce words into the subsection. A reasonable interpretation can be given to it as it stands, though it does not go as far as it might have done. The claim does not fall within either limb of the sub-section. The duty of the Court is to apply the sub-section as it stands, not to extend it. I agree with the judgment of Mr. Justice Parker.
That is all that it is necessary to say for the determination of this appeal, but as much time was devoted to argument upon section 21 of the Limitation Act, 1939, perhaps I ought to say something upon it. One question which was raised is as to the time at which the cause of action of a Defendant against a Third Party arises. In Merlihan v. Pope, which is reported in 1946 1 King's Bench Division at page 166, a case rather like this, Mr. Justice Birkett held that the cause of action accrued on the commission of the tort. It is right to say that authorities were not cited to him. In a later case, Hordern-Richmond, Ltd. v. Duncan, reported in 1947 1 King's Bench Division at page 545, Mr. Justice Cassels took a different view, with which Mr. Justice Parker agreed in the judgment now under appeal. The adoption of the view of Mr. Justice Birkett would lead to simplification, for there seems to the something incongruous in the position of two Defendants who are sued in respect of an accident when one puts (or both put) forward a claim to contribution and it can be said that the cause of action of the Plaintiff arises on the date of the accident and the cause of action as to contribution arises on a later date (or dates). None the less, it is difficult to see what cause of action a person who is indirectly involved in an accident has if he has suffered no damage. If he is sued he can make use of the Third-Party procedure. It may be that his cause of action accrues when the Writ in the action is served upon him – but that was not argued – and I am content to adopt the view of Mr. Justice Parker that the cause of action arises when the Defendant is held liable, that is, when judgment is given against him, and that order 16 (a) is merely machinery for the convenient determination of the position which may arise subsequently. This is in accordance with the decision in Wolmerhausen v. Gullick, which is reported in 1893 2 Chancery Division at page 514 (see page 529); and in the ordinary case it avoids the possibility of any injustice to a Defendant as against a Third Party.
The form of Order in use in contribution cases where both are Defendants provides that, on one Defendant paying the whole, he shall be at liberty to enter judgment against the other for the proportion of damages and costs found against him.
Mr. Diplock submitted that a claim to contribution did not fall under, and was not affected by, Section 21 of the Limitation Act. He cited in support the decision ofthe Court of Appeal in Tuckwood v. Mayor, Etc., Rotherham, reported in 1921 1 King's Bench Division at page 526. The claim in that case arose under Section 6, sub-section (2), of the Workmen's Compensation Act, 1906, and it was...
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