Zanfra v. Duncan and another, Civ. Cases 20-A-67, 21-A-67 and 11-A-68, 26/8/68, Platt J.

Zanfra v. Duncan and another, Civ. Cases 20-A-67, 21-A-67 and 11-A-68, 26/8/68, Platt J.

            The plaintiff commenced this action for damages for personal injuries. The action arose out of an accident which took place between two cars, one driven by Carlo Zanfra and the other driven by the 1^st Defendant and belonging to the 2^nd defendant. The plaint was brought within the period of limitation, relevant to an action for damages fro personal injuries, namely one year. The two defendants sought by third party procedure to make Carlo Zanfra the third party in the action and claimed against him contribution by virtue of the provisions of the Law Reform Fatal Accidents and Miscellaneous Provisions Ordinance Cap. 360, in respect of any judgment or judgments which might be obtained by the plaintiff against the defendants jointly or severally because of the 3^rd party have alleged negligence. The 3^rd party argued that the plaintiff could not bring an action against him even if that was desired, as the period of limitation over an action for personal injuries i.e. one year, had been exceed. Therefore 3^rd party must have the same defence as against the defendants which he could have had against the plaintiff. On the other hand it was argued that the 3^rd party had no such defence o limitation as against the defendants because the action then against him was one for contribution and not for personal injuries. It was conceded that the limitation period in a case of claim for contribution is three years.  

            Held: (1) “Where the plaintiff elects to sue a single though joint tortfeasor and does not sue a second,  then even if the defendant sued joins a third party to the action in order to obtain contribution, the third party does not become a defendant in the main suit. Where third party proceedings are taken, the third party only becomes a defendant, if the plaintiff himself seeks to make him so. Therefore the third party here Carlo Zanfra not being a defendant to the main suit, is not directly concerned with the question of the claim for personal injuries as are the two defendants upon the record. (cf. Orderly rule 21 with rule 23 and the position of B.O.A.C. as both defendants and third party in GEORGE WIMPEY v. B.O.A.C. (1955) A.C. 169). The third party having been joined is concerned primarily with the question whether he is liable to pay contribution to the defendants. The main purpose of this procedure is to save unnecessary expense to, and it may also safeguard the position of the defendants in view of the fact that if there were a second suit for contribution, the defendants might find themselves embarrassed by decisions taken in the second suit different to those reached in the first.” (2) The attractive nature of third party procedure does not change the basic position that a suit for contribution by the defendant is, as it were, being heard at the same time as a suit for personal injuries brought by the plaintiff against that defendant. Therefore whatever may be the position between the defendants and the plaintiff in this case concerning limitation, that period of limitation does not pertain to the question of contribution between the defendants and the third party.” (3) The right to contribution of the defendant is a separate matter and could have been taken on a separate case within the three year period. According I uphold the submission of the defendants that the right to contribution against the third party is not time barred, and that the defence adopted by the third party is not sound and is therefore rejected. (4) “The directions therefore which I give are that the issues raised by the notice to the third party and arising out of his defence to that notice be tried together with the issues arising on the main suit ……