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Is this because the insurer could have subrogated to the builder's rights against the sub-contractor but the broker could not?

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From: Andrew Tettenborn
Sent: 14 December 2001 09:06
Subject: [RDG:] contribution

Contribution buffs may like to look at the CA's decision in Hurstwood v MGA, 21/11/01 (available on Casetrack), with its expansive interpretation of what counts as the "same damage" within the Civil Liability (Contribution) Act 1978.

Builder's subcontractor does a bum job, and as a result the builder is liable to the client for the cost of clearing up the mess. Builder's insurance broker has blundered, as a result of which Builder is uninsured and has to sub up out of his own pocket. Can Broker get contribution / indemnity from Subcontractor on the basis that the latter would have been liable to Builder? CA, reversing TCC, say Yes. Basically, all that matters is that payment by either party would in fact reduce/ cancel the other's liability: if it would, contribution is available.

Interestingly, it was conceded by counsel that payment by Broker to Builder would relieve Subcontractor, even though payment by Underwriter (which Broker had negligently deprived Builder of) would not have done so because of the collateral source rule.

Andrew