Davis v Commissioner for Main Roads [1968] HCA 10

High Court of Australia Barwick C.J. McTiernan, Kitto, Menzies and Windeyer JJ. Davis v Commissioner for Main Roads [1968] HCA 10

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1968, Mar. 11 Barwick C.J.

In this matter I have had the advantage of reading the reasons for judgment prepared by my brother Menzies. As I agree with his construction of cl. 7 of the agreement between the parties and with his reasons for reaching his conclusions, there is no need for me to do more than concur in his opinion that this appeal should be dismissed.

McTiernan J.

I am of opinion that the conclusion of the Court of Appeal of the Supreme Court of New South Wales is right. I concur in the reasons for judgment of my brother Menzies and I cannot usefully add anything.

Kitto J.

The appellant, being sued by the Commissioner for Railways for having negligently caused damage to one of the Commissioner's locomotives by a collision between the locomotive and a motor vehicle at a public crossing of a railway line, claimed in third-party proceedings contribution from the respondent in respect of any sum which the Commissioner might recover in the action. The statutory basis of the claim to contribution was the provision made by s. 5 (1) (c) of the Law Reform (Miscellaneous Provisions) Act, 1946 N.S.W. that any tortfeasor liable in respect of damage suffered by a person as a result of the tort 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; and the appellant's case as pleaded was that a cause of the collision was negligence on the part of the respondent for which he would have been liable if the Commissioner for Railways had sued him. The statutory provision, however, is qualified, and the respondent pleaded that the qualification applied to the case. It is in these words: " so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought." By demurrer proceedings in the Supreme Court the question was raised whether the terms of a certain contract between the appellant and the respondent did entitle the respondent to be indemnified by the appellant in respect of "the liability in respect of which the contribution is sought", namely the liability of the respondent to the Commissioner for Railways.