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In respect of that damage

Bowcliff PL v QBE Insurance (Aust) Ltd. [2011] NSWCA 18 21.02.11. per Handley AJA.
[11] Section 5(1)(c) of the [Law Reform (Miscellaneous Provisions)] 1946 Act provides:

(c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise ..."

[15] The fundamental point about para (c) is that it only deals with claims for contribution. The text quoted above [11] is quite clear.

[16] The liability "in respect of that damage" in the first line of para (c) is liability to the plaintiff. This is the damage referred to in the opening words of s 5(1) which govern the whole section: "Where damage is suffered by any person as the result of a tort."

[17] The new right conferred on tortfeasors by para (c) was to recover contribution "from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage." The liability of "any other tort-feasor" referred to is liability to the plaintiff, and the hypothetical suit ("who if sued") is one brought by the plaintiff.

[18] Although the phrase "in respect of" normally has a wide meaning, it can have a narrow meaning in an appropriate context: State Government Insurance Office v Rees [1979] HCA 52, 144 CLR 549 at 553-4 per Stephen J, and at 560-1 per Mason J.

[19] Section 5(1)(c) gives relevant judgments a wider operation than they have under the general law. As the James Hardie [James Hardie and Co Pty Ltd v Seltsam Pty Ltd [1998] HCA 78, 196 CLR 53] case established, the section makes a final judgment in favour of a defendant against the plaintiff binding on other tortfeasors liable for the same damage although they were not parties to the judgment.

The principles were stated by Gaudron and Gummow JJ at paras [34]-[35]:

"34 ... the relationship between the two limbs in par (c) is that identified by Barwick CJ in Brambles Constructions PL v Helmers [1966] HCA 3, 114 CLR 213, 218-9. The persons against whom there is an entitlement to recover contribution are (i) those who have come under an obligation to pay money in respect of the same damage and (ii) those who, not having been sued by the injured party, would, had they been sued, have been found to have caused or contributed to the same damage by a tortious act.

"35 The first limb of s 5(1)(c) identifies those who ... have been sued by the injured party but fixes only upon those who have been made liable. The second limb identifies those who would, if sued at any time, have been liable, not those who were sued but obtained the entry of judgment in their favour, whether by consent or otherwise. There is no third category which identifies a person from whom contribution may be recovered by reference to the circumstance that this person has been sued and has been held not liable."

[20] The consent judgment in favour of QBE in the cross-claim by ACP did not bring QBE within the category of persons who have relevantly been sued and held not liable.


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