| DAMAGES — Contribution — Entitlement — Proceedings taken against wrong person — Mistake leading to that person accepting liability — Judgment entered — Whether recovery of contribution available against person who should have been sued — Civil Liability (Contribution) Act 1978, ss 1, 2, 6
BRB (Residuary) Ltd v Connex South Eastern Ltd [2008] EWHC 1172 (QB); [2008] WLR (D) 177
QBD: Cranston J: 23 May 2008
Where proceedings had been taken to the point of judgment against a person who had not been the correct defendant, that person might recover under the Civil Liability (Contribution) Act 1978 against the person who should have been the defendant.
Cranston J so held when allowing a claim by BRB (Residuary) Ltd against Connex South Eastern Ltd for contribution in relation to the settlement of proceedings brought under the Fatal Accidents Act 1976 by the widow of a railwayman who had died of mesothelioma caused by exposure to asbestos during the course of his employment.
One effect of the privatisation of the railways was that the defendant had become the deceased’s employer, but there had been in operation an indemnity under which the claimant was liable to meet certain claims against the defendant. In the mistaken belief that the indemnity applied in the particular circumstances, the claimant had admitted liability in the Fatal Accidents Act proceedings and judgment had been entered against it. The mistake was discovered before the damages were finally settled. At that stage the defendant was not admitting liability, but later accepted that it would have been liable.
CRANSTON J said that the requirement in s 1(1) of the 1978 Act that the persons concerned must be “liable in respect of the same damage” was met, because the test under s 6(1) was whether there was an entitlement to recover compensation from that person in respect of the damage, and, whatever the prior position had been, the claimant had been liable from the date of the judgment because the judgment itself gave rise to liability. Arab Monetary Fund v Hashim The Times, 17 June 1993 was authority for the proposition that a claim in contribution could be resisted if there had been a collateral defence to the underlying claim arising out of its facts, but that was limited by the pleadings relating to that underlying claim, and no such defence had been available in the present matter. It was not correct to say that the claimant’s payment of the damages was a voluntary payment which had failed to discharge the defendant’s liability: the payment had been made under the compulsion of the judgment and would have to be brought into account in any claim by the widow against the defendant. No estoppel arose against the claimant, because the factual position did not make it appropriate to draw any inferences as to how the defendant was induced to act, and in any event, as the defendant accepted that the damages, as settled, were not excessive, the defendant had suffered no detriment. Judgment would be for the amount of those damages and for the widow’s costs in pursuing her proceedings, but it would not be just and equitable, under s 2(1), to include the claimant’s costs in those proceedings. |
