Royal Brompton Hospital NHS Trust v Hammond (No. 3)

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD BINGHAM OF CORNHILL,LORD MACKAY OF CLASHFERN,LORD STEYN,LORD HOPE OF CRAIGHEAD,LORD RODGER OF EARLSFERRY
Judgment Date25 Apr 2002
Neutral Citation[2002] UKHL 14

[2002] UKHL 14

HOUSE OF LORDS

Lord Bingham of Cornhill

Lord Mackay of Clashfern

Lord Steyn

Lord Hope of Craighead

Lord Rodger of Earlsferry

Royal Brompton Hospital National Health Service Trust
and
Hammond

And Others

(Appellants)
and
Taylor Woodrow Construction (Holdings) Limited
(Respondents)
LORD BINGHAM OF CORNHILL

My Lords,

1

Section 1(1) of the Civil Liability (Contribution) Act 1978 provides:

"Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise)."

This appeal turns on the interpretation of the six words I have emphasised and their application to the facts of this case. I am indebted to my noble and learned friend Lord Steyn for his account of the factual, contractual and legislative background to the case, which I adopt and need not repeat.

2

The law has for many centuries recognised the existence of situations in which, if B is called upon to discharge a legal obligation owed to A, fairness demands that B should be entitled to claim a contribution from other parties subject with him to that obligation. Thus a rule first developed to cover parties to a common maritime adventure was over time extended to cover co-sureties, co-trustees, co-contractors, partners, co-insurers, co-mortgagors, co-directors and co-owners (see Goff & Jones, The Law of Restitution, 5th ed, (1998) pp 394, 399, 409, 413, 415, 421, 424, 425 and 427). The common link between all these situations was the obvious justice of requiring that a common liability should be shared between those liable.

3

The advent of the motor car however highlighted a situation in which B, if called upon to discharge a liability to A, could not seek any contribution from others also subject to the same liability to A. The old rule in Merryweather v Nixan (1799) 8 TR 186 forbade claims for contribution or indemnity between joint tortfeasors and a more recent decision in The Koursk [1924] P 140 showed that even where independent acts of negligence by different parties resulted in one injury and gave rise to a cause of action against each party there could be no contribution between them. The Law Revision Committee in its Third Interim Report (Cmd 4637) of July 1934 addressed this problem. In paragraph 7 of its report the committee said:

"We think that the common law rule should be altered as speedily as possible.

The simplest way of altering the law would seem to be to follow the lines of Section 37(3) of the Companies Act [1929], and to give a right of contribution in the case of wrongs as in cases of contract.

If this were done, joint tortfeasors in the strict sense would be given a right of contribution inter se. We think, however, that such a right might with advantage also be conferred where the tort is not joint (ie, the same act committed by several persons) but where the same damage is caused to the Plaintiff by the separate wrongful acts of several persons. This is the position which frequently arises where the plaintiff sustains a single damage from the combined negligence of two motor car drivers, and recovers judgment against both …

We think therefore that when two persons each contribute to the same damage suffered by a third the one who pays more than his share should be entitled to recover contribution from the other."

The committee included the following among its recommendations:

"(II)Any person who is adjudged to be liable to make any payment … in respect of an actionable wrong may recover contribution … from any other person who has been made liable in respect of the same wrong, or who, if sued separately, would have been so liable, unless …

(III)Where two or more persons have committed independent wrongful acts which have been the cause of the same damage they shall have the same right to contribution among themselves but subject to the same exception as in the case of persons liable in respect of the same wrong."

Effect was given to these recommendations in section 6(1)(c) of the Law Reform (Married Women and Tortfeasors) Act 1935 which provided:

"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.…"

4

The Law Revision Committee's Third Interim Report and section 6(1)(c) were directed only to the liability, as between each other, of those who had committed tortious acts, whether jointly or concurrently. This limited field of application came in time to be recognised as a weakness, for section 6(1)(c) did not apply to wrongdoers other than tortfeasors and did not apply if only one of the wrongdoers was a tortfeasor. This was one of the weaknesses addressed by the Law Commission in its Report on Contribution (Law Com No 79) published in March 1977. A number of recommendations were made with the main aim of widening the jurisdiction given to the courts by the 1935 Act (paragraph 81) and specific recommendations were made:

"(a) … that statutory rights of contribution should not be confined, as at present, to cases where damage is suffered as a result of a tort, but should cover cases where it is suffered as a result of tort, breach of contract, breach of trust or other breach of duty …

(d) … that the statutory right to recover contribution should be available to any person liable in respect of the damage, not just persons liable in tort …"

In the draft bill appended to its report the Law Commission proposed a subsection (in clause 3(1)) which differed from section 1(1) of the 1978 Act quoted at the outset of this opinion only in its reference to the time when the damage occurred, a reference which has been omitted in the subsection as enacted. The words which I have emphasised at the outset were included in the Law Commission draft. Section 1(1) of the 1978 Act is supplemented by section 6(1):

"A person is liable in respect of any damage for the purposes of this Act if the person who suffered it … is entitled to recover compensation from him in respect of that damage (whatever the legal basis of his liability, whether tort, breach of contract, breach of trust or otherwise)."

This differs more obviously, at least in wording, from the interpretation clause proposed by the Law Commission:

"(1)For the purposes of this Act -

(a) a person is liable in respect of any damage if he is subject to a duty enforceable by action to compensate for that damage, whether or not he has in fact been held to be so liable in any action actually brought against him; and

(b) it is immaterial whether he is liable in respect of a tort, breach of contract, breach of trust or on any other ground whatsoever which gives rise to a cause of action against him in respect of the damage in question."

5

It is plain beyond argument that one important object of the 1978 Act was to widen the classes of person between whom claims for contribution would lie and to enlarge the hitherto restricted category of causes of action capable of giving rise to such a claim. It is, however, as I understand, a constant theme of the law of contribution from the beginning that B's claim to share with others his liability to A rests upon the fact that they (whether equally with B or not) are subject to a common liability to A. I find nothing in section 6(1)(c) of the 1935 Act or in section 1(1) of the 1978 Act, or in the reports which preceded those Acts, which in any way weakens that requirement. Indeed both sections, by using the words "in respect of the same damage", emphasise the need for one loss to be apportioned among those liable.

6

When any claim for contribution falls to be decided the following questions in my opinion arise:

At the striking-out stage the questions must be recast to reflect the rule that it is arguability and not liability which then falls for decision, but their essential thrust is the same. I do not think it matters greatly whether, in phrasing these questions, one speaks (as the 1978 Act does) of "damage" or of "loss" or "harm", provided it is borne in mind that "damage" does not mean "damages" (as pointed out by Roch LJ in Birse Construction Ltd v Haiste Ltd [1996] 1WLR 675, at p 682) and that B's right to contribution by C depends on the damage, loss or harm for which B is liable to A corresponding (even if in part only) with the damage, loss or harm for which C is liable to A. This seems to me to accord with the underlying equity of the situation: it is obviously fair that C contributes to B a fair share of what both B and C owe in law to A, but obviously unfair that C should contribute to B any share of what B may owe in law to A but C does not.

  • (1) What damage has A suffered?

  • (2) Is B liable to A in respect of that damage?

  • (3) Is C also liable to A in respect of that damage or some of it?

7

Approached in this way, the claim made by the Architect against the Contractor must in my opinion fail in principle. It so happens that the Employer and the Contractor have resolved their mutual claims and counterclaims in arbitration whereas the Employer seeks redress against the Architect in the High Court. But for purposes of contribution the parties' rights must be the same as if the Employer had sued both the Contractor and the Architect in the High Court and they had exchanged contribution notices. The question would then be whether the Employer was advancing a claim for damage, loss or harm for which both the Contractor and the Architect were liable, in which case (if the claim were established) the court would have to apportion the common liability between the two parties responsible, or...

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