Brambles Constructions Pty Ltd v Helmers [1966] HCA 3

High Court of Australia Barwick C.J. McTiernan, Kitto, Windeyer and Owen JJ. Brambles Constructions Pty Ltd v Helmers [1966] HCA 3

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1966, Feb. 25 Barwick C.J.

The demurrers in this case raise the proper construction of s. 5 (1) (c) of the Law Reform (Miscellaneous Provisions) Act, 1946 of the State of New South Wales which is in the following terms:

Where damage is suffered by any person as a result of a tort

(c) any tort-feasor liable in respect of the 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 .

The respondent suffered judgment at the hands of one of his employees for damages in respect of an injury to him caused by the respondent's negligence. During the course of the proceedings brought against him by the workman, the respondent served a third party notice on the appellant claiming that the appellant by its tortious conduct had caused or contributed to the damage in respect of which the respondent was being sued and claimed contribution pursuant to s. 5 (1) (c). At the date when the respondent was sued by his employee less than six years had elapsed since the occurrence of the damage in respect of which the workman sued. But at the date when the respondent gave his third party notice to the appellant, more than six years had elapsed from the date of the occurrence so that had the respondent's workman sued the appellant at the date the third party notice was given or any time subsequent thereto and the appellant had pleaded in that action the appropriate Statute of Limitations, the appellant would not have had judgment given against it in respect of the workman's claim. The demurrers raise the question whether this circumstance affords the appellant a good defence to the respondent's claim for contribution.