Jackson v Goldsmith [1950] HCA 22

High Court of Australia Latham C.J. McTiernan, Williams, Webb and Fullagar JJ. Jackson v Goldsmith [1950] HCA 22

ORDER Appeal allowed with costs. Order of the Supreme Court set aside. Judgment on demurrer for defendant in the action.

Cur. adv. vult.

The following written judgments were delivered:—

June 23 Latham C.J.

This is an appeal from a judgment of the Supreme Court of New South Wales upon a demurrer by a defendant A. A. Jackson to a plea by a third party V. L. Goldsmith. The Supreme Court gave judgment in demurrer for the third party, holding that the plea was good. The plea was a plea of estoppel. The estoppel was pleaded to a claim made by Jackson against Goldsmith for contribution or indemnity. In this action one R. B. D. White sued Jackson for damages for an injury suffered by him (White) alleged to be due to the negligence of Jackson in driving a motor cycle whereon White was a passenger. Jackson brought in Goldsmith as a third party under the Law Reform (Miscellaneous Provisions) Act 1946. Section 5 (1) of that Act provides, inter alia, that "Where any damage is suffered by any person as the 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 " In his declaration in the third party proceedings Jackson alleged as against Goldsmith that Goldsmith so negligently drove a motor car that it came into collision with a motor cycle driven by Jackson whereby White, a pillion passenger on the motor cycle, was injured and that the plaintiff White was suing Jackson for damages for injuries thereby suffered. Jackson therefore claimed contribution or indemnity from Goldsmith in respect of any sum which the plaintiff White might recover against him, Jackson. The claim of Jackson so made against Goldsmith was that Goldsmith was, by reason of negligence of which he was guilty, a tort-feasor who, if he had been sued by White, would have been liable for the damage to White in respect of which White was suing Jackson.