A joint tortfeasor could escape liability in contribution proceedings if it had been unsuccessfully sued by the injured person in an action brought outside the relevant limitation period. Where a court has to decide between two competing cases, if the arguments are fairly evenly balanced that interpretation should be chosen which involves the least alteration of the existing law.
An employee of BOAC, had been injured in a collision between a vehicle owned by BOAC and another owned by Wimpey. He sued Wimpey, who now claimed a contribution against BOAC. The claimant later joined BOAC, but outside a special one year limitation period under the 1939 Act. The judge had found BOAC one third liable, but that they then escaped liability, the claim against them being time barred. At the Court of Appeal LLJ Denning and Singleton compared the situation with that of co-sureties, and that a six year period applied.
Held: The decision and discussion was limited firmly to the point of statutory construction under section 6(1)(c) of the 1935 Act.
Viscount Simonds: ‘My Lords, at the hearing of the action and of the appeal two questions were raised, upon which there was no argument before your Lordships, the first as to the date upon which Wimpeys’ right to contribution arose and the second as to the period of limitation in respect of a claim for contribution against a public authority under section 21 of the Limitation Act, 1939. I am content to assume that the right to contribution arose at any rate not earlier than the date when the existence and amount of Wimpeys’ liability to Littlewood was ascertained by judgment and that the relevant period of limitation was six years.’ The concept of being ‘held liable’ by a judgment for the purpose of setting time running in a claim for contribution involved the ascertainment of the quantum of the liability.
Lord Porter: ‘The quantum having been determined, the only question is: can the party against whom judgment has been given recover contribution from the other who was in part the cause of the injury?’ and ‘Substantially, their view was that Wimpeys were under no liability until judgment was given against them, that their cause of action arose then and not until then, and accordingly their cause of action against B.O.A.C. arose at that date. I need not, I think, set out the authorities and reasoning upon which these opinions are founded except to refer to such cases as Wolmershausen v. Gullick and Robinson v. Harkin, both of which were claims to contribution between co-sureties, and M’Gillivray v. Hope, which was a claim involving the right of present and former employers to contribution inter se in respect of damages awarded to a workman employed by them consecutively.
If this view be true, Wimpeys’ liability did not come into existence until judgment had been given against them, and therefore they had whatever was the appropriate period of limitation from that date. What that appropriate period may be – whether it is a year because B.O.A.C. is a public authority and the action is brought in respect of any act, neglect or default or whether it is six years, because the claim is not in respect of any act, neglect or default, but for contribution – is immaterial in the present case inasmuch as Wimpeys made their claim to contribution in the original action before judgment was given.’
Lord Keith of Avonholm: ‘My Lords, your Lordships are not now concerned with a question which was considered in the courts below, namely, when the cause of action in the claim for contribution accrued. It is conceded, in conformity with the view taken by the Court of Appeal, that the cause of action accrued at earliest at the date when judgment was given in favour of Littlewood against the appellants.’
Judges:
Lord Reid, Lord Keith of Avonholm, Viscount Simonds, Lord Porter
Citations:
[1955] AC 169, [1954] 3 WLR 932, [1954] 3 All ER 661
Statutes:
Law Reform (Married Women and Tortfeasors) Act 1935, Limitation Act 1939 21
Jurisdiction:
England and Wales
Citing:
Cited – Wolmershausen v Gullick 1893
Claim for contribution between co-securities. Wright J reviewed the development of the entitlement to contribution from Justinian’s statement of it, through its application by the custom of the City of London in the time of Queen Elizabeth to the . .
Appeal from – Littlewood and George Wimpey and Co Ltd v British Overseas Airways Corporation CA 1953
The words ‘liable to pay’ in s 3 carried their usual meaning as ‘responsible in law’. . .
Cited by:
Cited – Director of Public Prosecutions v Gomez HL 3-Dec-1992
The defendant worked as a shop assistant. He had persuaded the manager to accept in payment for goods, two cheques which he knew to be stolen. The CA had decided that since the ownership of the goods was transferred on the sale, no appropriation of . .
Cited – Aer Lingus v Gildacroft Ltd and Another CA 17-Jan-2006
The claimant had been found liable to pay damages for personal injury, and now sought contribution from the defendants. The defendants said that they were out of time since the contribution action had been commenced more than 2 years after the . .
Cited – Ronex Properties v. John Laing Construction Ltd CA 1983
The court considered a claim for contribution between tortfeasors. Donaldson LJ said: ‘The starting point of this submission is that a cause of action for contribution, under the Law Reform (Married Women and Tortfeasors) Act 1935, arises at the . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Torts – Other, Damages, Limitation
Updated: 30 April 2022; Ref: scu.214211
