Here in Chambers we often run points past each other. 'Can I have your view on liability?' the enquirer will ask or, 'do you have time for a quick quant?' (They don't ask me, of course, because I don't do that kind of thing.) Out will come the road plans depicting the scene of the accident and an involved debate will ensue as to what the cyclist could or could not have seen before turning left, or what ever. Or if quantum proves tricky, a collection of photographs will be proffered showing the injured knee together with a doctor's report explaining how a promising dancing career has been cut short. Generally members of chambers are flattered to be asked their opinion and enter into an exchange of views with enthusiasm.
When I recently grappled with a problem which seemed determined to defeat me, I wandered along the corridor, looking for enlightenment. 'Can I trouble you with my point on contribution?' I asked one of our many cerebral types. The resulting look of horror said it all. Looking at injured knees is one thing, but trying to work out what the Civil Liability (Contribution) Act 1978 means is something very different.
At its simplest the Act enables defendants, (architects, for example,) to join in other parties to the action (such as contractors or sub-contractors) if they are liable for the same damage claimed by a plaintiff, such as an employer, and to obtain from them a contribution towards the total bill. It is not, however, easy to know what is meant by 'liable for' and 'the same damage'.
Two cases illustrate the problems. In Birse Construction v Haiste, the contractor agreed to design and construct a reservoir for a water authority. It engaged designers to prepare the design. An employee of the water authority administered the project as engineer. When the reservoir proved defective, the contractor agreed to build a new one. It then claimed against the designer for negligent design. The designer claimed a contribution from the engineer (with whom it had no contract) under the Act, on the basis that if it was liable, then so was the engineer. The Court of Appeal did not agree. It distinguished between the damage suffered by the water authority (a defective reservoir) and the damage suffered by the designer (financial liability for it). The damage caused by the engineer was not 'the same damage' as the damage caused by the designer.
More recently, in Oxford University v Tarmac, the university engaged a contractor to build a pharmacology unit, and an architect to design it. When defects in the construction were not adequately remedied, the university sued its architect. The architect claimed a contribution towards the university's damages, from the contractor, under the Act. The contractor relied on the final certificate. It said that this was conclusive evidence that the university had no claim against it and it was not 'liable' to it. tcc Judge Humphrey Lloyd qc agreed. So although the contractor may be responsible for the defects, the final certificate operated as an evidential bar and precluded the university from establishing liability in law.
In the old days, after Anns v Merton and Junior Books, owners of defective buildings used to sue everyone who had the slightest connection with the project, even the local authority. The defendants would pass the hat round, each contributing to the total damages according to the part they believed they played in the building's downfall. Nowadays plaintiffs single out the likely defendant with more care. The restrictions on liability generally and these recent interpretations of the Civil Liability (Contribution) Act may well mean that they will continue to face the music alone.