Drinkwater v Kimber: CA 1952

The female plaintiff had been injured in a collision caused by the concurrent negligence of her husband and the defendant. She could not succeed in a negligence action against her husband, so the defendant could not recover under the Law Reform (Married Women and Tortfeasors) Act 1935 any contribution to the damages awarded against the defendant to the wife. To overcome this difficulty, by a counter claim against the husband the defendant sought contribution under the Act of 1945.
Held: The defendant could not recover under the Act of 1945. That Act gave the defendant no claim against the husband in respect of the wife’s injuries and the defendant’s liability to the wife was not ‘damage’ suffered by him within the meaning of section 1(1). The Act did not give the defendant a cause of action against the husband; it did not purport to create any new variety of claim; it seemed clear that the word ‘damage’ referred to that which was suffered and for which a ‘claim’ might be made and for which ‘damages’ are recoverable. If the section applied, the court would have to record the total damages which would have been recoverable by the defendant from the husband if the defendant had not been at fault. If the defendant had not been negligent the total damages recoverable would have been nil. To award andpound;135, being the contribution claimed from the husband, would have been ‘a strange phenomenon of contraction.’


Morris LJ, Singleton LJ


[1952] 2 QB 281


Law Reform (Contributory Negligence) Act 1945 1(1)


England and Wales

Cited by:

CitedPlatform Home Loans Ltd v Oyston Shipways Ltd and others HL 18-Feb-1999
The plaintiffs had lent about 1 million pounds on the security of property negligently valued at 1.5 million pounds. The property was sold for much less than that and the plaintiffs suffered a loss of 680,000 pounds. The judge found that the . .
Lists of cited by and citing cases may be incomplete.

Damages, Negligence

Updated: 12 May 2022; Ref: scu.190064