Fri, 14 Oct 2005 08:58:19 -0400
Contribution - Royal Brompton
not quite sure that my comments in the following paragraphs are
responsive to your message. If not I apologize. I understand your
point in stating that the decisions of the architect to grant the
extensions could have been challenged via arbitration. But, those
decisions were either right or wrong. If right, then the architect
couldn't have been liable for damages or contribution at all, regardless
of whether the contractor had any liability to the hospital.
you are saying that the HL in RB
essentially held that there was different damage because the contractor's
misconduct (which caused delay) put the hospital to increased expense
while the architect's misconduct deprived the hospital 'only' of
the remedy to recoup that increased expense, then I agree with you
that that's the substance of the HL's distinction. And, if the application
of the UK contribution provisions, properly interpreted, is contingent
on each of the wrongdoers having caused the same damage in the sense
stated by the HL, then the formal result in the case can't be criticized
given the finding that they did not. The legislation says what it
if we are required to look at the consequences of the wrongdoers'
misconduct as a criterion for the application of the legislation,
we could ask ourselves whether it was necessary for the HL to find
that the damage caused by the contractor was the delay in construction
(essentially the increased cost of that delay) and the architect
the loss of remedy against the contractor for at least some portion
of that increase. That is, we can ask ourselves whether the HL had
to go back to the traditional analyses of the difference between
damage (injury) and damages (the award for the injury). We could
ask ourselves why the HL didn't ask itself, given the remedial purpose
of the legislation, if the real question was something in the form
of "what was the loss that was sustained by the hospital, assuming
actionable causative misconduct on the part of both contractor and
architect?". If that had been the question, wouldn't the answer
be the extra amount paid by the hospital for the construction which
wouldn't have been paid but for the misconduct of both?
what it's worth, there's an aside in Glanville Williams Joint
Torts which I believe equates "damage" and "damages"
in apportionment contexts for contributory fault apportionment.
It's been mentioned by the HL in Platform
Home Loans Ltd v. Oyston Shipways Ltd and Others 
UKHL 10, albeit in a dissent. If that's the case for contributory
fault, it probably should be the same for contribution. In Platform,
the HL dealt with the meaning of "damage" in the Law Reform
(Contributory Negligence) Act 1945. Lord Cooke (I think the dissent
doesn't relate to the point under discussion) - wrote:
in his Joint Torts and Contributory Negligence (1951)
Glanville Williams said at p. 118 that in short the word "damage"
in section 1(1) "comprises any item of loss that would have
been recoverable as damages at common law apart from the claimant's
own fault." He repeated the proposition at p. 317.
have to remember that we're dealing with indivisible damage in contributory
fault cases - the injured person's contributory fault and the wrongdoers'
fault each caused all of the damage. What the injured person recovers
is the value of the injury, less the share corresponding to his
degree of fault. But the damage is still the entire injury, not
the amount recoverable from the wrongdoers. So, Williams, by stating
that 'damage' in the Act meant the amount recoverable, equated damage
that as it may, much of the problem in contribution analyses (in
my view) stems from the extent to which the scope of contribution
rights between wrongdoers is made to depend on aspects of the characterization
of the injured person's claims against each of the wrongdoers. That's
the wrong focus. Unfortunately, the form of the various apportionment
statutes effectively forces the courts to engage in the characterizations
of the injured persons cause(s) of action. The point that may not
have come through clearly in the general ODG messages, but was made
separately to me by Andrew in a summary that I'll quote, is that
contribution analyses make more sense if the criterion is "would
payment by D1 reduce D2's liability pro tanto? This certainly seems
closer to the unjust enrichment concept that contribution is ultimately
Bennett Best Burn LLP
Original Message -----
From: "michael furmston"
Sent: Thursday, October 13, 2005 10:11 AM
Subject: Royal Brompton
hesitate to intervene in the fascinating discussion about contribution
but the discussion of the Royal
Brompton case may go off on the wrong basis because of
a misunderstanding of the construction contract position position.
The decision of the architect as to extensions of time was not
dispositive. It could have been challenged in a subsequent arbitration.
In my experience such decisions are often challenged and often
held to be wrong though more usually where they are in favour
of the employer.
The possible claim against the contractor for delay had been settled
as part of the global settlement. There was a conceivable claim
against the architect that he had negligently granted an unjustified
extension of time. If this could be shown it would damage the
employer by putting him in a worse position in the settlement
negotiations than if the extension had not been given. HL thought
this a different kind of damage from having the building finished
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