George Wimpey & Company Ltd v B.O.A.C.
| Jurisdiction | England & Wales |
| Judge | Viscount Simonds,Lord Porter,Lord Reid,Lord Tucker,Lord Keith of Avonholm |
| Judgment Date | 01 December 1954 |
| Judgment citation (vLex) | [1954] UKHL J1201-2 |
| Date | 01 December 1954 |
| Court | House of Lords |
[1954] UKHL J1201-2
Viscount Simonds
Lord Porter
Lord Reid
Lord Tucker
Lord Keith of Avonholm
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause George Wimpey and Company Limited against British Overseas Airways Corporation; that the Committee had heard Counsel, as well on Thursday the 21st, as on Monday the 25th, days of October last, upon the Petition and Appeal of George Wimpey and Company Limited, of Hammersmith Grove, in the County of London, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 27th of July 1953, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of British Overseas Airways Corporation, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 27th day of July 1953, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
On the 28th July, 1949, one Littlewood, an aircraft cleaner, was injured in the course of his employment by the Respondent British Overseas Airways Corporation, whom I will call B.O.A.C., as the result of a collision between the vehicle in which he was travelling and a motor lorry owned by the Appellants, George Wimpey & Company Ltd., whom I will call Wimpeys, and driven by their servant.
On the 26th April, 1951, more than a year after the accident, Littlewood issued a writ against Wimpeys claiming damages on the ground that the accident was caused by the negligence of their servant.
By their defence delivered on the 20th June, 1951, Wimpeys denied negligence and alleged that the collision was due to the negligence of the driver of the vehicle for which B.O.A.C. were responsible and on the 6th July, 1951, issued a third party notice addressed to B.O.A.C. claiming contribution or indemnity under section 6 (1) ( c) of the Law Reform (Married Women and Tortfeasors) Act, 1935, in respect of Littlewood's claim in the action.
On the 12th February, 1952, more than 2 1/2 years after the accident, Littlewood, having obtained leave to join B.O.A.C. as co-defendants with Wimpeys in the action, delivered an amended Statement of Claim wherein he alleged negligence and breach of statutory duty under section 26 of the Factories Act, 1937, against B.O.A.C.
In their defence to Littlewood's claim in the action and to Wimpeys' claim in the third party proceedings B.O.A.C. denied negligence and breach of statutory duty and further pleaded that the claims were barred by lapse of time by reason of the provisions of the Limitation Act, 1939.
It is admitted that B.O.A.C. are a "public authority" for the purposes of the last mentioned Act. Littlewood's action against Wimpeys and B.O.A.C. and the third party proceedings having been heard together by Mr. Justice Parker (as he then was) that learned Judge held,
(A) that Littlewood was entitled to judgment in the action against Wimpeys for £1,436 12s. damages with costs on the ground of the negligence of Wimpeys' servant,
(B) that B.O.A.C. were entitled to judgment against Littlewood on the ground that his claim against them was barred by s. 21 of the Limitation Act, 1939,
(C) that Wimpeys were two thirds to blame and B.O.A.C. one third to blame for the collision which caused Littlewood's injuries, and
(D) that in the third party proceedings B.O.A.C. were entitled to judgment against Wimpeys on the ground (which will be considered in more detail) that the latter's claim for contribution did not come within s. 6 (1) ( c) of the 1935 Act.
Wimpeys appealed from that part of the judgment which is stated under (D) above and their appeal was dismissed by the Court of Appeal (Singleton and Morris L.JJ. dissentiente Denning L.J.).
At the hearing of the action and of the appeal two questions were raised, upon which there was no argument before your Lordships, the first as to the date upon which Wimpeys' right to contribution arose and the second as to the period of limitation in respect of a claim for contribution against a public authority under s. 21 of the Limitation Act, 1939. I am content to assume that the right to contribution arose at any rate not earlier than the date when the existence and amount of Wimpeys' liability to Littlewood was ascertained by judgment and that the relevant period of limitation was six years.
The third question remains and it turns upon the true construction of s. 6 (l) of the Act of 1935.
That sub-section so far as relevant provides as follows:
"6.—(1) Where damage is suffered by any person as a result of a tort (whether a crime or not)—
( a) judgment recovered against any tort-feasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tort-feasor in respect of the same damage;
( b) …
( 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…."
It may at once be observed upon this sub-section that, whereas paragraph ( a) relates to the rights of the injured person and substantially alters the law to his advantage, paragraph ( c) relates to the rights of tort-feasors inter se and, to a greater or less degree according to the interpretation which is put upon it, alters the law for the benefit of the tort-feasor who alone has been sued or against whom alone judgment has been recovered. How far Parliament has proceeded upon this path depends on the language of the Act. If I find its meaning sufficiently clear, I do not think it right to depart from it upon a speculation that it might have been wiser or more consistent to proceed further.
The question of construction, as I see it, is whether s. 6 (1) ( c) can according to its natural meaning be so interpreted as to admit a claim for contribution by one tort-feasor against another when that other has been sued by the injured person and held not liable. I agree with Parker J. and Singleton and Morris L.J.J., in thinking that it cannot.
It appears to me that the first matter for consideration is what is the meaning of the word "liable" where it is secondly used in s. 6 (1) ( c) and I think it is plain beyond argument that it means held liable in judgment. No other meaning can reasonably be attributed to it in the context "would if sued have been", for these words make a suit the condition of liability. I do not therefore think it necessary to discuss what the paragraph might mean, if, as has been suggested, the word "liable" bore some other significance, the precise legal content of which I do not find it easy to define, such as "responsible at law". If the word "liable" where secondly used in paragraph ( c) bears the meaning which I have ascribed to it, I should be reluctant to give it any other meaning where it is first used in the same paragraph, nor do I think it unreasonable that the right of contribution between tort-feasors should be limited to the case where he who seeks contribution has himself been sued to judgment. In the view which I take it is immaterial whether the word, where first used, has the same meaning or another: if it were necessary for me to decide it. I should say it had the same meaning.
The question then can be simply stated. Contribution is recoverable from one who in an actual suit by the injured man has been held liable by judgment: it is recoverable from one who, if sued, would in that hypothetical suit have been held liable. Is it also recoverable from one who has been actually sued by the injured man and held not liable? It happens in the case under appeal that the reason why the party from whom contribution was claimed was held not liable was because the Limitation Act was successfully pleaded. But this is irrelevant to the issue. The same question would arise if the claimant tort-feasor alleged that the defence, though it succeeded on the merits, was successful only because the case had been inadequately presented or even because the Judge or jury had taken a wrong view of it. It appears to me that a construction leading to such a result should only be accepted if the language fairly admits of no other meaning. But, so far from this being the case, in my opinion the subsection plainly contemplates two classes only of persons from whom contribution can be claimed, viz.: those who have been sued and those who have not been sued but would, if sued, be held liable. If the intention had been to include a third class of persons who, having been already sued and found not liable, might yet in hypothetical proceedings be sued a second time and then found liable (an extravagant intention, as it appears to me, to impute to the Legislature) I should have expected to find it expressed in clear and appropriate language. Not only is it not so expressed, but on the contrary I find in the words actually used the clear indication that the class of persons who "if...
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