Lampitt v Poole Borough Council (Taylor, Third Party)
| Jurisdiction | England & Wales |
| Judgment Date | 14 May 1990 |
| Date | 14 May 1990 |
| Court | Court of Appeal (Civil Division) |
Joint Tortfeasors - Contribution - New rights - Breach of duty of care arising prior to new provision - Damage occurring after repeal of previous provision - Whether “any obligation assumed” referring to negligence claim - Whether excluding right to claim contribution -
The plaintiffs were the owners of a house and extension constructed in 1968 and 1969 under the supervision and inspection of the defendants and to the design of the first third party, an architect. In 1981 cracking due to subsidence first appeared rendering the premises dangerous to the health and safety of the plaintiffs. In proceedings for negligence brought by the plaintiffs, the defendants claimed contribution from the first third party, who resisted the claim on the ground that the defendants' liability rested on breaches of “an obligation assumed by them” before the Civil Liability (Contribution) Act 1978 came into force on 1 January 1979, so that the claim against him was excluded by section 7(2)F1 of the Act, and since the resulting damage occurred only after that date, any claim under section 6 of the
On appeal by the third party:—
Held, dismissing the appeal, that since the defendants had no acquired or accrued right under the Act of 1935 when it was repealed, section 16 of the
The following cases are referred to in the judgment of Lord Donaldson of Lymington M.R.:
George Wimpey & Co. Ltd. v. British Overseas Airways Corporation [
Stott v. West Yorkshire Road Car Co. Ltd. [
The following additional cases were cited in argument:
Abbott v. Minister for Lands [
Falcon v. Famous Players Film Co. Ltd. [
Hamilton Gell v. White [
Overseas Tankship (U.K.) Ltd. v. Morts Dock and Engineering Co. Ltd. (The Wagon Mound) [
Reg. v. West London Stipendiary Magistrate, Ex parte Simeon [
Watkinson v. Hollington [
APPEAL from Judge Young Q.C. sitting on official referee's business.
By a third party notice dated 16 December 1988 the defendants, Poole Borough Council, claimed under the
On 18 May 1989 Judge John Davies Q.C., sitting on official referee's business, ordered a trial of a preliminary issue as between, inter alios, the defendants and the first third party whether the defendants were entitled to claim contribution from the first third party under the Act of 1935. On 14 December 1989 Judge Young Q.C., sitting on official referee's business, held that the Civil Liability (Contribution) Act 1978 did not deprive the defendants of the right to contribution under the Act of 1935, and that such rights were preserved by section 16 of the
By a notice of appeal dated 3 January 1990 the third party appealed with leave of the judge on the grounds that (1) the judge was wrong in law in holding that the defendants were entitled to claim contribution under the Act of 1935; (2) the judge was wrong in law in holding that the provisions of section 7 of the Civil Liability (Contribution) Act 1978 did not restrict the right of the defendants to claim contribution under the Act of 1935 and (3) that the judge was wrong in law in holding that the defendants had an accrued right to contribution against the third party prior to 1 January 1979.
By a respondent's notice dated 19 January 1990 the defendants contended that the judge's decision be affirmed on the additional grounds that the judge ought to have directed himself that the defendants were entitled to claim contribution from the third party under the Act of 1935 because (1) the Civil Liability (Contribution) Act 1978 simply substituted provision for the Act of 1935 in a modified form and (2) by reason of section 17 of the
On the hearing of the appeal the Court of Appeal granted the defendants leave to withdraw their concession made to the judge that they could not claim contribution under the Civil Liability (Contribution) Act 1978 and to amend their third party notice and respondent's notice accordingly.
The facts are stated in the judgment of Lord Donaldson of Lymington M.R.
Augustus Ullstein for the first third party. There was no right of contribution between joint tortfeasors prior to the
The defendants did not have an accrued right to contribution prior to 1 January 1979. The claim in the plaintiffs' action is in negligence and the plaintiffs had no cause of action against either the defendants or the third party until 1981, when the damage to the property occurred: see Overseas Tankship (U.K.) Ltd. v. Morts Dock and Engineering Co. Ltd. (The Wagon Mound) [
The defendants' right to contribution under the Act of 1935 is not therefore saved by section 16 of the
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