Unsworth v Commissioner for Railways [1958] HCA 41

High Court of Australia McTiernan A.C.J. Fullagar and Taylor JJ. Unsworth v Commissioner for Railways [1958] HCA 41

ORDER Order that the appellant be at liberty to add the plaintiff in the action, Mary Eileen King, as a respondent to this appeal. Subject to the said Mary Eileen King being added as a respondent to the appeal and to the appellant obtaining and filing a memorandum of her consent hereto * The consent of Mary Eileen King, the plaintiff in the action, to be added as a respondent to the appeal was filed in the Brisbane Registry of the High Court on 30th October, 1958, and she was added as a respondent. , order that the appeal be allowed and that the order of the Supreme Court of Queensland be varied by substituting £2,000 for £1,700 wherever appearing and by making such consequential variations in the order as may be rendered necessary by such substitution. In the event of the said Mary Eileen King failing or refusing to consent as aforesaid the appellant is to be at liberty upon notice to her and the Commissioner for Railways to restore the appeal to the list for such further or other order as may be appropriate. The costs of the appellant of and incidental to the appeal to be paid by the respondent Commissioner for Railways.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 28 McTiernan A.C.J.

The appellant and respondent were parties to proceedings for contribution which were determined at the trial of this action pursuant to O. XVII of The Rules of the Supreme Court of Queensland: such proceedings were under Pt. II of The Law Reform (Tortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act of 1952. The provisions of the Act as to contribution, now material, are:—"5. Where damage is suffered by any person as a result of a tort (c) 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 ". "6. In any proceedings for contribution under this Part of this Act the amount of the contribution recoverable from any person shall be such as may be found by the Court to be just and equitable having regard to the extent of that person's responsibility for the damage ". The appeal is brought against a judgment which was given in the above-mentioned proceedings for contribution relating to the damages which were found by the jury on the claim in the action based on s. 12 of The Common Law Practice Acts 1867 to 1940 Q. This section is textually like s. 1 of the Fatal Accidents Act 1846, commonly referred to as Lord Campbell's Act. The plaintiff in the action is not a party to the appeal. The appellant and respondent were the defendants to the action.