Transcript CLAIMS FOR CONSEQUENTIAL PECUNIARY LOSS

The Civil Liability Act – The Current
Position on Proportionate Liability
and Causation
Richard Douglas SC
Rick Oliver
Kevin Holyoak
Richard – CLA Proportionate Liability: the
concept, apportionable claim, concurrent
wrongdoer, manner of apportionment,
contribution and indemnity exclusion between
defendants.
Rick – CLA Proportionate Liability: identifying
wrongdoers, pleading obligations, directions
hearings, impact on UCPR offers.
Kevin – CLA Causation, in particular the common
law contrast on the decided authorities.
Comparative Provisions
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Civil Liability Act 2003 (Qld) Ch 2 Pt 2.
Civil Liability Act 2002 (NSW) Pt 4.
Wrongs Act 1958 (Vic) Pt IVAA.
Law Reform (Contributory Negligence and
Apportionment of Liability) Act 2001 (SA) Pt 3.
Civil Liability Act 2002 (WA) Pt 1F.
Civil Liability Act 2002 (Tas) Pt 9A.
Civil Law (Wrongs) Act 2002 (ACT) Ch. 7A.
Proportionate Liability Act 2005 (NT)
Comparative Provisions (cont’d)
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Trade Practices Act 1974 (Cth) Pt VIA.
Australian Securities & Investments
Commission Act 2001 Pt 2 Div 2 Sub-div
GA.
Corporations Act 2001 (Cth) Ch 7 Pt 17.10
Div 2A.
Comparative Provisions (cont’d)
Cth Acts – apportionable claim: damages for M
& D conduct.
• State and Territory Acts – apportionable claims:
damages for State M & D conduct or for “breach
of duty”.
• Similar but not synonymous drafting in States
and Commonwealth.
• Qld Act applies to any “breach of duty”
(presumably including a State M & D conduct
contravention) occurring on or after 1 March
2005: s 4(3) and s 82.
•
Operative Principles
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Common law solidary liability – where two or more defendant parties
causatively liable, jointly or concurrently, for the same loss or damage,
whatever the cause of action, adjudication ensues against each in full
measure despite any common law or statutory apportionment between
the defendants.
Statutory Proportionate liability – where two or more defendants are
causatively liable for the same loss or damage, a court apportions
responsibility for the proven damages between them as concurrent
wrongdoers upon a consideration of what is “just” or like touchstone,
adjudication re each going only for the apportioned sum and no more
and with contribution precluded between them.
Proportionate liability shifts to the plaintiff, from the solvent defendant
or defendants, the risk of inability to recover contribution from any
insolvent or uninsured liable defendant or third party.
Operative Provision
31 Proportionate liability for apportionable claims
(1) In any proceeding involving an apportionable claim—
(a) the liability of a defendant who is a concurrent wrongdoer in relation to the
claim is limited to an amount reflecting that proportion of the loss or
damage claimed that the court considers just and equitable having regard
to the extent of the defendant’s responsibility for the loss or damage; and
(b) judgment must not be given against the defendant for more than that
amount in relation to the claim.
…
(3) In apportioning responsibility between defendants in a proceeding the
court may have regard to the comparative responsibility of any
concurrent wrongdoer who is not a party to the proceeding.
(4) This section applies to a proceeding in relation to an apportionable
claim whether or not all concurrent wrongdoers are parties to the
proceeding.
Operative Provision (cont’d)
7 Provisions relating to operation of Act
…
(3) This Act, other than chapter 2, part 2 and chapter
3, does not prevent the parties to a contract from
making express provision for their rights, obligations
and liabilities under the contract (the express
provision) in relation to any matter to which this Act
applies and does not limit or otherwise affect the
operation of the express provision.
(4) Subsection (3) extends to any provision of this Act
even if the provision applies to liability in contract.
…
Operative Provisions (Cont’d)
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Section 31 has sequential operation.
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In a sole or multiple defendant case in which no
apportionable claim is pleaded (by plaintiff or defendant),
solidary liability applies.
•
In a sole defendant case in which an apportionable claim is
pleaded, but no concurrent wrongdoer is identified, solidary
liability applies.
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In a sole or multiple defendant case in which apportionable
and non-apportionable claims are pleaded, and if the/a
defendant and others (defendant or not) are concurrent
wrongdoers, proportionate liability applies to the claims and
solidary liability applies to the non-apportionable claims.
Pt 2 Exceptions
28 Application of pt 2
…
(3) This part does not apply to a claim—
(a) arising out of personal injury; or
(b) by a consumer.
(4) Also, this part does not apply to a claim to
the extent that an Act provides that liability for
an amount payable in relation to the claim is
joint and several.
…
Personal Injury Exception
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Term “personal injury” defined widely in Schedule 1 (eg
includes death).
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Plainly a plaintiff’s claim for damages and a defendant’s
claim against another defendant or third party for
statutory or common law (not contractual) indemnity or
contribution would be excluded.
Personal Injury Exception (cont’d)
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According to the Explanatory Memorandum to
the introducing Professional Standards Bill 2004:
This will preclude application of the provisions in not
only direct claims by injured people, but also in
contribution proceedings between responsible parties
and related third party proceedings.
•
Remains faintly arguable, in the case of the
defendant having an independent cause of
action, for damages comprising PI claim against
two or more defendants or third parties,
proportionate liability applies because the
subject matter of such cause of action is
economic in character: Allianz v Wentworthville
13 ANZ Ins Cas 61-598.
Consumer Exception
Section 29
In this part—
…
consumer means an individual whose claim is based on
rights relating to goods or services, or both, in
circumstances where the particular goods or services—
(a) are being acquired for personal, domestic or household use or
consumption; or
(b) relate to advice given by a professional to the individual for the
individual’s use, other than for a business carried on by the
individual whether solely or as a member of a business
partnership.
…
Consumer Exception (cont’d)
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Domestic Acquisition exception carries subjective (“are
being acquired”), not objective acquisition test (cf TPA s
4B – “ordinarily acquired for personal etc”), e.g. tractor
purchased for mowing acreage; installation services for
large domestic water tank or bore.
Professional services exception not direct nexus (“goods
or services relate to”) and further such services can be
for commercial purposes as long as not “for a business”,
e.g. solicitor’s advice in a PI case, on land sale or to
executor; valuer’s advice to executor; accountant’s
advice on setting up and maintaining a private
superannuation trust; personal investment advice.
Apportionable Claim
28 Application of pt 2
(1) This part applies to either or both of the
following claims (apportionable claim)—
(a) a claim for economic loss or damage to property in
an action for damages arising from a breach of a
duty of care;
(b) a claim for economic loss or damage to property in
an action for damages under the Fair Trading Act
1989 for a contravention of section 38 of that Act.
…
Arising from a Breach of a Duty of
Care
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Schedule 2:
duty means—
(a) a duty of care in tort; or
(b) a duty of care under contract that is concurrent and
coextensive with a duty of care in tort; or
(c) another duty under statute or otherwise that is
concurrent with a duty of care mentioned in paragraph
(a) or (b).
duty of care means a duty to take reasonable
care or to exercise reasonable skill (or both
duties)
Arising from a Breach of a Duty of
Care (cont’d)
•
No refuge in TPA s 74 (1) in respect of due skill and care
warranties (cf s 74(2)) due to subs (2A) which applies to
contracts entered into after 13 July 2004.
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Previously s 74 prevailed under Constitution s 109: Wallis v
Downard 179 CLR 388.
•
Explanatory Memorandum in Treasury Legislation
Amendment (Professional Standards) Bill:
1.15 The amendments will seek to ensure that State and Territory
reforms of the law of contract are not undermined.
Arising from a Breach of a Duty of
Care (cont’d)
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74 Warranties in relation to the supply of services
(1) In every contract for the supply by a corporation in the course of a
business of services to a consumer there is an implied warranty that the
services will be rendered with due care and skill and that any materials
supplied in connexion with those services will be reasonably fit for the purpose
for which they are supplied.
…
(2A) If:
(a) there is a breach of an implied warranty that exists because of this section
in a contract made after the commencement of this subsection; and
(b) the law of a State or Territory is the proper law of the contract;
the law of the State or Territory applies to limit or preclude liability for
the breach, and recovery of that liability (if any), in the same way as it
applies to limit or preclude liability, and recovery of a liability, for breach
of another term of the contract.
Arising from a Breach of a Duty of
Care (cont’d)
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A salient question is this: in the event that:—
(a)a plaintiff, against a sole defendant, pleads a
claim expressly founded on a cause of action
not involving breach of a duty to take
reasonable care nor entailing statutory
“misleading or deceptive conduct”;
(b) one of the latter causes of action is
available, factually and legally, to the plaintiff
to recover the same damages;
(c) a “concurrent wrongdoer” is identified,
(d) the defendant pleads (b) and (c);
Is proportionate liability invoked?
Arising from a Breach of a Duty of
Care (cont’d)
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The better (but contentious) answer to the above
question is in the negative.
• Examples of non-apportionable claims are
damages for breach of some prescriptive
contractual obligation, implied SGA terms in the
tort of nuisance or upon one of the raft of
contraventions of, or causes of action under Pt V
Divs 1, 1A, 2A and Pt VA of the Trade Practices
Act 1974(Cth) other than ss 52 and 74 which
are, or end up being apportionable.
Arising from a Breach of a Duty of
Care (cont’d)
“The application of the CL Act depends on there being both an apportionable claim
and concurrent wrongdoers in respect of that claim. In the ordinary way, it would not
be in the interests of the plaintiff having a non-apportionable claim against one deeppocketed defendant to plead material facts that might show the existence of an
apportionable claim and concurrent wrongdoers. A clear example is a plaintiff
having a claim against a contractor for breach of an express contractual
warranty to hand over the works by the time limited for practical completion (as
extended from time to time) free of defects. A claim in respect of defective works
(and/or for late delivery) could be brought for breach of that promise. In terms, it
would not be an apportionable claim.
However, the defendant might wish to allege that its breach of contract was the result
of negligence: negligently failing to manage and undertake the works, and negligently
failing to use reasonable care and skill in and about their execution.... Who owns the
litigation? ... It is hard to see why the application of the statutory regime
(which, after all, was introduced to serve the interests of prospective
defendants and their insurers) should be governed by the ingenuity of those
who plead plaintiffs’ causes of action. Put in less emotive language: the question
should fall to be answered by considerations of substance rather than form.”
[Emphasis Added]
Per McDougall J “Proportionate Liability and Construction Litigation”(2006) 22 BCL 396
Arising from a Breach of a Duty of
Care (cont’d)
[29] As the respondents observed, in drafting the provisions of Pt VIAA of the Wrongs Act, the
legislature deliberately chose to define "apportionable claim" by reference to an action for
damages arising from a failure to take reasonable care. The provisions do not require that the
claim itself be a claim in negligence or for a breach of duty — it only requires that the claim
arise from a failure to take reasonable care. The expressions "arising from" or "arising out
of" are of wide import — see the discussion in A Stephenson, "Proportional Liability in Australia
— The Death of Certainty in Risk Allocation in Contract" (2005) 22(1) ICLR 64 at 71 to 73, and
generally B McDonald, "Proportionate Liability in Australia: the Devil in the Detail" (2005) 26(1)
ABR 29.
[30] In my view, Pt IVAA could apply in the circumstances of this proceeding according to its own
terms. Where a claim brought by an applicant does not have as one of its necessary elements any
allegation of failing to take reasonable care, an additional enquiry into the failure to take
reasonable care may become relevant in the course of a trial to determine the application of Pt
IVAA. Even though the claims in this proceeding themselves do not rely upon any plea of
negligence or a "failure to take reasonable care" in a strict sense, a failure to take
reasonable care may form part of the allegations or the evidence that is tendered in the
proceedings. At the end of the trial, after hearing all the evidence, it may be found that Pt
IVAA applies. [Emphasis added]
Dartberg Pty Ltd v Wealth Care [2007] FCA 1216 per Middleton J
Arising from a Breach of a Duty of
Care (cont’d)
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In the absence of unequivocal language, Pt 2 ( TPA
likewise) ought not be construed as emasculating a
common law right, namely solidary liability apropos a
pleaded non-apportionable cause of action,
notwithstanding an apportionable cause of action could
have been pleaded, and concurrently founds liability.
Election for best remedy is hardly novel, e.g. pre-2001
contract plea and pre-2004 TPA s 52 plea to avoid
contrib. neg.
This view underscored by the fact that the Act, in s 31(2),
expressly caters for the circumstance of there being both
apportionable and non-apportionable claims propounded
by a plaintiff in the same proceeding:
Arising from a Breach of a Duty of
Care (cont’d)
31 Proportionate liability for apportionable claims
…
(2) If the proceeding involves both an apportionable claim
and a claim that is not an apportionable claim—
(a) liability for the apportionable claim, to the extent it
involves concurrent wrongdoers, is to be decided in
accordance with this part; and
(b) liability for the other claim, and the apportionable
claim to the extent it is not provided for under paragraph
(a), is to be decided in accordance with the legal rules, if
any, that, apart from this part, are relevant.
…
Arising from a Breach of a Duty of
Care (cont’d)
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Take, for example, a plaintiff (commercial or private) claiming
damages from a sole defendant professional for breach of an
express prescriptive contractual obligation paid for handsomely (e.g.
due diligence entailing specific document scrutiny) to detect fraud or
asset complement before settling a transaction.
The defendant pleads and proves that if it is liable to the plaintiff,
such liability could have been pleaded and proved by the plaintiff as
a contractual breach of duty to exercise reasonable care, and in turn
pleads and proves the conduct of another wrongdoer who is guilty of
causing the loss by deceit or M & D conduct.
Given that wrongdoer fraudster or statutory deceiver would ordinarily
be apportioned the lion’s share of,or certainly substantial liability,
why ought the plaintiff be deprived of the benefit of full
unapportioned damages contractually available against the
defendant professional he has sued?
Concurrent Wrongdoer
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30 Who is a concurrent wrongdoer
(1) A concurrent wrongdoer, in relation to a claim,
is a person who is 1 of 2 or more persons
whose acts or omissions caused,
independently of each other, the loss or
damage that is the subject of the claim.
(2) For this part, it does not matter that a
concurrent wrongdoer is insolvent, is being
wound up, has ceased to exist or has died.
Concurrent Wrongdoer (cont’d)
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Does not arise for consideration unless
there is an “apportionable claim” under s 28.
Likewise, and expressly, identification and
joinder obligations under s 32(1) and (2) do
nota rise unless there is such a claim.
Once s 30 is satisfied each of apportionable
claim defendant and identified further
wrongdoer is a “concurrent wrongdoer”.
Concurrent Wrongdoer (Cont’d)
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Need the genesis or foundation of the liability of the
putative further “concurrent wrongdoer” be breach of a
duty to exercise reasonable care (whether arising from
tort contract or statute), or statutory misleading and
deceptive conduct (as in s 28)?
The better answer is in the negative.
The language (“acts or omissions”) is plenary in
character, sufficient to comprehend causes for breach of
prescriptive obligations (eg, express or implied
contractual warranties as to fitness quality or time: civilly
enforceable state statutory obligation) owed by the
alleged wrongdoer (cf s 28 definition of “apportioanble
claim”).
Concurrent Wrongdoer (cont’d)
[98] I do not accept, as Mr McHugh submits, that MAN
Australia’s breach of contract was not an “omission”
causing Mr Yates’ loss. The contract imposed an obligation
on MAN Australia to ensure that the work was done
properly. It “omitted” to perform a contractual duty which, if
performed, would have prevented the loss. In my opinion,
a breach of contractual duty to ensure that work is done
properly by others, whether employees, agents or
independent contractors, is an “omission” within s 34(2)
CLA such as may make a contract breaker a concurrent
wrongdoer within the operation of Part IV CLA.
Yates v Mobile Marine Pty Ltd & Anor [2007] NSWSC 1463
per Palmer J.
Concurrent Wrongdoer (Cont’d)
Need the putative “concurrent wrongdoer” be a
person or entity against whom the plaintiff has a
enforceable cause of action?
• The better answer is in the affirmative.
• No such enforceable where liability contractually
excluded or exempted liability, (cf. statute barred
liability).
• A construction of the enactment which would allow
of apportionment to a party bereft of liability to the
claimant plaintiff, at any point in time, is such a
gross departure from the common law of solidary
liability that a court ought be loath to adopt it in the
absence of clear statutory language.
•
Concurrent Wrongdoer (Cont’d)
[58] There is no doubt that Part VIA effects a
significant change in the law in those cases to
which it applies. A claimant can no longer
recover all of his damages from one of a number
of wrongdoers who were previously jointly and
severally liable to the plaintiff. The claimant can
recover from each wrongdoer only that
proportion of the loss and damage claimed that
the court considers just having regard to the
particular wrongdoer’s responsibility for the
damage or loss.
Concurrent Wrongdoer (Cont’d)
[59] In my opinion, the Part was not intended to go any
further than this and the construction of the proportionate
liability provisions advanced by Selected Seeds must be
rejected. … it was submitted that providing it could be said
that one or more of the cross-respondents had caused the
loss or damage claimed by the applicants within s
87CB(3), and providing they were liable to another party,
albeit not the applicants, then their responsibility for the
loss and damage was to be taken into account in
assessing the extent of Landmark’s responsibility for the
damage or loss. Without more, such a construction of the
proportionate liability provisions of the TPA would result in
a very significant erosion of a plaintiff’s rights as they were
before the introduction of the provisions. ….
Concurrent Wrongdoer (Cont’d)
…That construction would involve a significant alteration of
the substantive law. In my opinion, however the argument
is put it must be rejected because clear words would be
required before one would accept a construction involving
such a substantial erosion of a plaintiff’s rights or a change
in the substantive law as to the circumstances in which
one party is liable to another. There are no such clear
words in the provisions and there is no other indication that
Parliament intended to change the law so radically or why
it would be considered appropriate to do so.
•
•
Shrimp v Landmark Operations Limited [2007] FCA 1468
per Besanko J, with a similar construction being applied by
his Honour to the Proportionate Liability Act 2005 (NT)
See, likewise, Chandra v Perpetual Trustees Victoria Ltd
[2007] NSWSC 694 per Bryson AJ at [110].
Concurrent Wrongdoer (Cont’d)
•
Can a joint (cf independent) tortfeasor or
contractual obligor be a “concurrent
wrongdoer”?
• Answer is in negative because s 30 provides
“acts or omissions caused, independently of
each other, the loss or damage”.
• Examples of joint liability: employer/employee,
(vicarious liability), joint occupiers, joint
contractors.
• Cf TPA s 87CB(3); NSW s 34 “independently of
each other or jointly”.
Apportionment
31 Proportionate liability for apportionable claims
(1) In any proceeding involving an apportionable claim—
(a) the liability of a defendant who is a concurrent wrongdoer in
relation to the claim is limited to an amount reflecting that proportion
of the loss or damage claimed that the court considers just and
equitable having regard to the extent of the defendant’s
responsibility for the loss or damage; and
(b) judgment must not be given against the defendant for more than
that amount in relation to the claim.
…
(3) In apportioning responsibility between defendants in a
proceeding the court may have regard to the comparative
responsibility of any concurrent wrongdoer who is not a party to
the proceeding.
(4) This section applies to a proceeding in relation to an
apportionable claim whether or not all concurrent wrongdoers
are parties to the proceeding.
Apportionment (Cont’d)
[113] In the application of s 35(1), and apportioning the responsibility of
Mr Miller for the loss with the responsibility of Mr Pan, the extent of
Mr Miller's responsibility for the loss is altogether overwhelmed by
Mr Pan's responsibility for the loss. Mr Pan acted deceitfully in
pursuit of a large monetary advantage which he gained; Mr Miller
was deceived and conducted an apparently small piece of
professional work in a way which fell short of appropriate skill. I
consider it just, having regard to the extent of his responsibility, that
Mr Miller's liability be limited to 10 percent of the plaintiffs' loss.
Chandra v Perpetual Trustee Victoria Ltd [2007] NSWSC 694 per
Bryson AJ but note tortious duty, not contractual obligation to the
damaged plaintiff there assumed by the solicitor Miller.
Apportionment (Cont’d)
Yates v Mobile Marine Repairs Pty Ltd & Anor [2007] NSWSC 1463 per Palmer J (NSW ss 34
and 35 analogues of Qld ss 28/30 and 31.
[95]
However, under s 35(1) CLA, the exercise is much more complicated than apportioning
blame in an action for negligence in tort because the apportionment may have to be made
as between a wrongdoer who has breached a contract and wrongdoer who has committed
a tort: s 34(1)(a) and (1A).
……
[97] …s 34 CLA makes it clear that both a contract breaker and tortfeasor may be
concurrent wrongdoers liable for the same loss or damage in an apportionable claim. The
duty to avoid loss imposed by contract is as weighty as the duty to avoid loss imposed by
the common law. However, the Court is required to go beyond the legal character of the
duties imposed upon concurrent wrongdoers and to examine the practicalities of
responsibility. Accordingly, the Court should apportion liability according to considerations
such as (but not limited to):
– which of the wrongdoers was more actively engaged in the activity causing loss;
– which of the wrongdoers was more able effectively to prevent the loss happening.
……
Concurrent Wrongdoer (Cont’d)
[100] Mobile Marine has admitted that it was negligent in carrying out the work on
the Eagle’s engines. As far as the evidence goes, all that MAN Australia did was to
make the contract with Mr Yates and, presumably, pay half the cost of the repairs.
[101] However, this is not a case in which MAN Australia undertook contractual
responsibility for proper workmanship in an area in which it had no knowledge or
expertise whatsoever and had, of necessity, to rely entirely on the skill of Mobile
Marine. MAN Australia was the supplier of the engines. It doubtless had its own
employees who were capable of overseeing or checking what Mobile Marine had
done. It had access to experts within MAN AG, which had actually manufactured the
engines. At the very least, MAN Australia might have asked questions as to the
process which Mobile Marine proposed to follow in carrying out the repair work. The
expert evidence suggests that Mobile Marine’s intention to sand-blast before
repainting was inherently risky and likely to cause the very damage that occurred.
[102] In my opinion, although Mobile Marine was more actively engaged, if not
solely engaged, in the physical activity which caused Mr Yates’ loss,
nevertheless, MAN Australia was not in a position where it was unable
effectively to prevent the loss occurring. Because it had its own expertise, it
could not disregard its responsibility under the contract to ensure that Mobile
Marine had carried out the work properly.
[103] In my opinion, the liability for Mr Yates’ loss should be apportioned equally
between Mobile Marine and MAN Australia. Judgment should be entered against
them accordingly.
Concurrent Wrongdoer (Cont’d)
•
•
•
•
•
Contributory negligence deducted before
apportionment: s 32G.
Some instances of apportionment but with
several liability deemed in certain
concurrent wrongdoers.
Fraudulent wrongdoer: s 32D.
Wrongdoer who intends to cause loss or
damage: s 32E.
State FTA contravener: s 32F.
Recoverability of Contribution
Indemnity or Damages inter se
Defendants
32A Contribution not recoverable from concurrent
wrongdoer
Subject to this part, a concurrent wrongdoer against
whom judgment is given under this part in relation to an
apportionable claim—
(a) can not be required to contribute to the damages
recovered or recoverable from another concurrent wrongdoer
for the apportionable claim, whether or not the damages are
recovered or recoverable in the same proceeding in which the
judgment is given; and
(b) can not be required to indemnify the other concurrent
wrongdoer
Recoverability of Contribution
Indemnity or Damages inter se
Defendants (cont’d)
7 Provisions relating to operation of Act
…
(3) This Act, other than chapter 2, part 2 and chapter
3,3 does not prevent the parties to a contract from
making express provision for their rights, obligations and
liabilities under the contract (the express provision) in
relation to any matter to which this Act applies and does
not limit or otherwise affect the operation of the express
provision.
(4) Subsection (3) extends to any provision of this Act
even if the provision applies to liability in contract.
Recoverability of Contribution
Indemnity or Damages inter se
Defendants (cont’d)
•
The language of the section identifies a specific
circumstance, namely a judgment in favour of a
claimant plaintiff against a “concurrent
wrongdoer” defendant or more than one of them
for apportioned damages.
• The better but contentious view is that s 32A
does not preclude a court from awarding
damages in favour of one concurrent wrongdoer
against another concurrent wrongdoer adjusting,
between them, the burden of liability to the
plaintiff.
Recoverability of Contribution
Indemnity or Damages inter se
Defendants (cont’d)
On this postulation:
• the pltf’s claim will be apportioned between the wrongdoer defts.
• in turn any claim inter se defts under the contribution legislation is
excluded.
• however a superior outcome may be achieved by one defts against
another upon a cause of action for damages for breach of contract,
whether in the character of a warranty to exercise reasonable care
or some other prescriptive condition or warranty.
• arguably the same outcome obtains for non-contractual causes of
action for damages, for example, in tort of negligence, nuisance or
breach of statutory duty or M & D conduct under TPA or FTA.
• irrespective of whether such a cross-claim, or subsequent claim, is
mounted, each wrongdoer defendant remains liable to the ptf for the
damages adjudicated, and in the measures apportioned.
Recoverability of Contribution
Indemnity or Damages inter se
Defendants (cont’d)
The “indemnity” identified by the section lies
undefined and is Delphic in character eg it is
common law indemnity?
• The better (but contentious) view is that an
express, and effectively worded, contractual
indemnity is an agreed disposition of risk
allocation which allows for pecuniary recovery if
invoked and ought not be disturbed in the
absence of clear legislative language.
•
Recoverability of Contribution
Indemnity or Damages inter se
Defendants (cont’d)
•
“[I]t seems unlikely that Parliament would have intended to so
drastically affect a party’s commercial bargain. It also seems to be
counter to the policy behind the legislation of responding to the
perceived “insurance crisis”. One of the ways in which commercial
parties arrange their affairs is to require parties contracting with
them to provide a full indemnity and to carry insurance for any loss.
Why would the legislation cut across that arrangement, thereby
increasing the risk of creating an uninsured defendant?”
Uren QC and Aghion “Proportionate Liability: An analysis of
Victorian and Commonwealth Legislative Schemes” (Vic
Commercial Bar Assoc CLE paper 2005) at 20; see also Watson
“From Contribution to Proportionate Liability” (2004) 78 ALJ 126 at
144; cf Stephenson “Proportional Liability in Australia – the death of
certainty and risk allocation” (2005) 22 International Construction
Law Review 64 at 83.
Recoverability of Contribution
Indemnity or Damages inter se
Defendants (cont’d)
The use of the linguistic “judgment” in s 32A
contrasts with contribution legislation which
requires only that the claimant tortfeasor be
“liable”.
• Any “concurrent wrongdoer” seeking to avail the
protection (if any) of s 32A against later
independent cause of action pursuit by another
“concurrent wrongdoer”, ought garner (if
necessary by consent or in UCPR offer) a
“judgment” secured against him or her.
•