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(1) This Part applies to the following claims (“apportionable claims”):
(a) a claim for economic loss or damage to property in an action for damages (whether in contract, tort or otherwise) arising from a failure to take reasonable care, but not including any claim arising out of personal injury,
(b) a claim for economic loss or damage to property in an action for damages under the Fair Trading Act 1987 for a contravention of section 42 of that Act (as in force before its repeal by the Fair Trading Amendment (Australian Consumer Law) Act 2010) or under the Australian Consumer Law (NSW) for a contravention of section 18 of that Law.
(1A) For the purposes of this Part, there is a single apportionable claim in proceedings in respect of the same loss or damage even if the claim for the loss or damage is based on more than one cause of action (whether or not of the same or a different kind).
(2) In this Part, a “concurrent wrongdoer”, in relation to a claim, is a person who is one of two or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim.
(3) For the purposes of this Part, apportionable claims are limited to those claims specified in subsection (1).
(3A) This Part does not apply to a claim in an action for damages arising from a breach of statutory warranty under Part 2C of the Home Building Act 1989 and brought by a person having the benefit of the statutory warranty.
(4) For the purposes of this Part it does not matter that a concurrent wrongdoer is insolvent, is being wound up or has ceased to exist or died.
(5) (Repealed)
In August 2012 the Rural Fire Service (RFS) carried out controlled burns on Mr Fitzgerald’s property. In early September strong winds reignited a hollow tree and carried a burning branch onto Mr Woodhouse’s neighbouring property, where the fire spread and ultimately destroyed his house. Mr Woodhouse brought proceedings against Mr Fitzgerald alleging that he had breached a non-delegable duty to prevent foreseeable risk of harm from the spread of fire, and that the fire constituted an act of nuisance that could have been avoided by taking reasonable care. The primary judge found that the RFS had been negligent, and that Mr Fitzgerald owed a non- delegable duty to Mr Woodhouse in relation to the risk of the spread of fire, apportioning the loss between Mr Fitzgerald and the RFS. The RFS is
exempted from liability by the Rural Fires Act 1997
(NSW).
Mr Woodhouse appealed in relation to the apportionment; Mr Fitzgerald cross-appealed in relation to liability. The Court of Appeal held that Mr Fitzgerald had a non-delegable duty to prevent the escape of fire resulting from the activities of an independent contractor, but that as the RFS had not been negligent Mr Fitzgerald was not in breach of that duty. It also found that, even if the RFS had been negligent and could be considered a concurrent wrongdoer, Mr Fitzgerald was vicariously liable for the actions of the RFS (as an independent contractor) and would that have been liable for any proportion attributable to the contractor.
On s 34: Section 34 makes clear that Part 4 is engaged if the basis of a claim is a “failure to take reasonable care”, whether the cause of action be pleaded in contact, tort, or under statute. If the nature of the obligation, breach of which gives rise to a claim in nuisance, involves taking reasonable care, then that criterion for the engagement of Part 4 is satisfied: [46].
The definition of “concurrent wrongdoer” refers only to those persons who are or may be liable for the damage or loss. Thus the RFS, by reason of its statutory immunity from liability, cannot be considered a concurrent wrongdoer. [76]-[97].
GC Group Company Pty Ltd (‘GC Group’)
purchased recycled aggregate from the Applicants (collectively, ‘Bingo’). GC Group alleged that aggregate supplied by Bingo was contaminated and that, by using the contaminated aggregate in construction projects, GC Group suffered loss and damage by being required to effect substantial reconstruction work at its own cost. Bingo sought to rely on a defence of apportionment under Part 4 of the Civil Liability Act, claiming that any contaminated material it delivered was supplied to it by one or more of 710 customers using its facilities and that each of those customers may thereby be a concurrent wrongdoer. Bingo did not plead that any one or more of those customers was a concurrent wrongdoer, but submitted that the definition of “concurrent wrongdoer” in s 34 was satisfied notwithstanding that it could not identify, individually or at all (and not even as a member of a closed class of persons each of whom had caused relevant damage) any other person who had caused, or was alleged to have caused, the damage of which GC Group complained. This part of Bingo’s defence was struck out by the primary judge, from which decision Bingo appealed. The Court of Appeal dismissed the appeal.
On s 34: Though the effect of Part 4 of the Civil Liability Act is to place the risk of a concurrent wrongdoer’s insolvency upon the plaintiff, and an identified concurrent wrongdoer need not be joined to proceedings, the provisions do not permit a defendant to limit its liability in respect of alleged concurrent wrongdoers who cannot be identified: [15]. Part 4 requires that the acts or omissions of a particular person who caused the same loss as that claimed by the plaintiff be identified: [20]. It does not allow a defendant to describe a class of individuals and assert that within that class there may be one or more concurrent wrongdoers. Such
a construction would make the concurrent wrongdoer provisions incoherent: [25]. Section 34, in providing that a concurrent wrongdoer is a person whose acts or omissions caused the loss or damage the subject of the claim, requires a defendant to plead and establish more than that one or more persons may have caused the damage: [26].
Australian Executor Trustees (SA) Limited (‘AET’) was advised by Sparke Helmore lawyers in relation to a transaction in which AET, in breach of its duty as trustee, discharged a number of encumbrances held for the benefit of investors without receiving any return for the benefit of those investors. A court-appointed trustee commenced actions seeking equitable compensation for breach of duty from AET (in respect of the release of the encumbrances) and damages for negligence or misleading and deceptive conduct from Sparke Helmore. AET cross-claimed against Sparke Helmore for negligent advice, seeking in the alternative an apportionment of its liability to the trustee. The primary judge found that the claim was not apportionable as the relevant (SA) legislation did not permit apportioning of claims for breach of fiduciary duty. The Court of Appeal upheld that finding.
On s 34: Apportionment legislation is not procedural but substantive law, so that the relevant law to be applied is the lex loci delicti: [227]-[230]. In this case that was the law of South Australia, which did not permit apportionment of the claim in question: [91].
The Appellant had engaged in mediation with his brother, the executor of each of his parents’ estates, in relation to a Family Provision Act 1982 (NSW) (‘FPA’) claim. Most of the parents’ assets were held by the mother’s estate, but no FPA proceedings had been commenced against the mother’s estate prior to the mediation. A settlement was reached at the mediation and orders made by the registrar which, due to the absence of any proceedings on foot against the mother’s estate, simply contained a note that the orders were agreed to in contemplation of such a claim. The unusual form of these orders led to difficulties in their enforcement and ultimately a significant shortfall in the amount recovered by the Appellant.
The Appellant brought proceedings against the Respondents, his solicitors, for breach of a contractual or tortious duty of care in relation to the failure to commence proceedings against the mother’s estate prior to the mediation. The Respondents advanced a defence that the Appellant’s barrister and his brother were concurrent wrongdoers for the purposes of Part 4 of the Civil Liability Act 2002 (NSW).
The defendants contended that the plaintiffs’ claims were “apportionable claims”, with the non- MRS entities identified being concurrent wrongdoers with MRS. They contended that the primary cause of the losses was not the negligence of MRS, but the failure of the non-MRS entities to repay loans.
On s 34: The barrister was not a concurrent wrongdoer, as there was no act or omission on his part that caused the loss in question. The barrister
had in fact advised that proceedings against the mother’s estate be commenced: [104]. The expression “concurrent wrongdoer” has a wide operation, as its definition relevantly refers only to a person whose act of omission “caused” the plaintiff’s loss. It is thus capable of applying to persons who are liable to a plaintiff on different causes of action to those upon which the defendant is liable: [106]. However, in this case the loss caused by the brother’s non-payment of the debt he had been found to have assumed as a result of the mediation settlement was not the same as the loss sued upon, being the loss of a right to claim provision from his mother’s estate: [107].
Mr Moylan, the principal of Moylan Retirement Solutions, gave financial advice to four families and their associated self-managed superannuation funds over five financial years. On Mr Moylan’s advice these SMSF trustees, and some family members, advanced funds into various loan investments and corporate investment vehicles. Mr Moylan controlled the principal corporate investment vehicle, Moylan Investment Group. The advances to MIG were, on Mr Moylan’s advice, applied to other investment vehicles. As a result of the global financial crisis these other investment vehicles became worthless and the investment money was not repaid. Mr Moylan was made bankrupt. MRS was deregistered. The trustees of the superannuation funds were the plaintiffs in
three separate actions heard together.
The defendants contended that the plaintiffs’ claims were “apportionable claims”, with the non- MRS entities identified being concurrent wrongdoers with MRS. They contended that the primary cause of the losses was not the negligence of MRS, but the failure of the non-MRS entities to repay loans.
On s 34: MRS was a s 34(2) “concurrent wrongdoer” as it caused, independently or jointly, the damage or loss that is the subject of the claim”: [404]. For the remaining parties, the question under s 34(2) is whether their acts independently of MRS caused damage to the plaintiffs. The Court held that the damage caused by their failure to repay the loans was identical to the damage caused by MRS, per Hunt & Hunt: [405]. The non-MRS entities were wholly passive recipients of funds procured through the principal of MRS, and all of the loans arose from his various breaches of duty. The Court apportioned responsibility of the non-MRS concurrent wrongdoers at no more than 5%: [409].
The appellant’s farm, “Myack”, was extensively damaged by fire in September 2012. The appellant claimed that the fire started on the adjoining property, “Doran”, resulting from a controlled burn conducted there in August 2012 at the request of the owners, the respondents. The respondents acknowledged that they would remain responsible for preventing the spread or escape of the fire and ensuring that it was properly extinguished, and for notifying adjoining landowners of the burn, which
they did not do. The RFS identified that a tree on the boundary of Doran was the source of the 5 September fire, reigniting after not having been fully extinguished after the controlled fire.
The owners were not present at the August controlled fire or at the 5 September fire. No steps were taken to establish that there was no risk of the fire reigniting on Doran in the unusual weather conditions of 5 September, either by the owners or the RFS. The appellant also did not go to Myack to take any precautions after becoming aware of the high fire risk prevailing on 5 September.
The appellant sought damages in negligence and nuisance from the respondents, claiming that they owed him a non-delegable duty of care to prevent the foreseeable risk of harm which arose from the potential spread of fire from Doran to Myack, which was breached when the controlled fire was not properly extinguished and later reignited. The respondents denied the claims and alleged contributory negligence on the appellant’s part.
On s 34: While the evidence established that the RFS caused loss or damage to the appellant, it is not legally liable for that wrongdoing, but is still a concurrent wrongdoer: [353].
(1) Nothing in this Part operates to limit the liability of a concurrent wrongdoer (an “excluded concurrent wrongdoer”) in proceedings involving an apportionable claim if:
(a) the concurrent wrongdoer intended to cause the economic loss or damage to property that is the subject of the claim, or
(b) the concurrent wrongdoer fraudulently caused the economic loss or damage to property that is the subject of the claim, or
(c) the civil liability of the concurrent wrongdoer was otherwise of a kind excluded from the operation of this Part by section 3B.
(2) The liability of an excluded concurrent wrongdoer is to be determined in accordance with the legal rules, if any, that (apart from this Part) are relevant.
(3) The liability of any other concurrent wrongdoer who is not an excluded concurrent wrongdoer is to be determined in accordance with the provisions of this Part.
Ms Johnson was one of two partners in the Sports Trading Club Partnership, a vehicle of notorious conman Peter Foster responsible for the loss of significant investor funds. Mr Mackinnon, having advanced $200,000 to STC, was the representative plaintiff in a suit against Ms Johnson and eleven other defendants. The primary judge held Ms Johnson liable for the whole sum for contraventions of s 18 of the Australian Consumer Law, and disallowed reliance by Ms Johnson on a defence of apportionment under Part 4 of the Civil Liability Act on the basis that it was not pleaded until after the judgment on liability. Ms Johnson appealed and the respondent, by notice of contention, argued for the judgment to be upheld on the alternative basis of deceit. The Court of Appeal upheld the notice of contention and dismissed the appeal.
On s 34A: Section 34A sets out a number of “excluded concurrent wrongdoers” to whom the defence is not available, including wrongdoers who act fraudulently (s 34A(1)(b)). As the notice of contention in relation to the claim for deceit was successful, s 34A(1)(b) applied and Ms Johnson’s liability would not have been reduced by a defence of apportionment even if she had been allowed to rely on it: [276]-[288].
(1) In any proceedings involving an apportionable claim:
(a) the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant’s responsibility for the damage or loss, and
(b) the court may give judgment against the defendant for not more than that amount.
(2) If the proceedings involve both an apportionable claim and a claim that is not an apportionable claim:
(a) liability for the apportionable claim is to be determined in accordance with the provisions of this Part, and
(b) liability for the other claim is to be determined in accordance with the legal rules, if any, that (apart from this Part) are relevant.
(3) In apportioning responsibility between defendants in the proceedings:
(a) the court is to exclude that proportion of the damage or loss in relation to which the plaintiff is contributorily negligent under any relevant law, and
(b) the court may have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceedings.
(4) This section applies in proceedings involving an apportionable claim whether or not all concurrent wrongdoers are parties to the proceedings.
(5) A reference in this Part to a defendant in
proceedings includes any person joined as a defendant or other party in the proceedings (except as a plaintiff) whether joined under this Part, under rules of court or otherwise.
(1) If:
(a) a defendant in proceedings involving an apportionable claim has reasonable grounds to believe that a particular person (the “other person”) may be a concurrent wrongdoer in relation to the claim, and
(b) the defendant fails to give the plaintiff, as soon as practicable, written notice of the information that the defendant has about:
(i) the identity of the other person, and
(ii) the circumstances that may make the other person a concurrent wrongdoer in relation to the claim, and
(c) the plaintiff unnecessarily incurs costs in the proceedings because the plaintiff was not aware that the other person may be a concurrent wrongdoer in relation to the claim, the court hearing the proceedings may order that the defendant pay all or any of those costs of the plaintiff.
(2) The court may order that the costs to be paid by the defendant be assessed on an indemnity basis or otherwise.
A defendant against whom judgment is given under this Part as a concurrent wrongdoer in relation to an apportionable claim:
(a) cannot be required to contribute to any damages or contribution recovered from another concurrent wrongdoer in respect of the apportionable claim (whether or not the damages or contribution are recovered in the same proceedings in which judgment is given against the defendant), and
(b) cannot be required to indemnify any such wrongdoer.
Lindsay and Faith Northcott commenced proceedings in the District Court against Landpower Australia Pty Ltd (‘Landpower’), seeking damages for breach of contract, negligence, misleading or deceptive conduct, and
negligent misrepresentation. The proceedings concerned the performance of a combine harvester that the Northcotts used in their agricultural cropping business. Landpower denied the allegations, and in the alternative, pleaded that the Northcotts’ claims were apportionable claims within the meaning of s 87CB of the Competition and Consumer Act 2010 (Cth), s 87CB of the Trade Practices Act 1974 (Cth), and s 35(1) of the Civil Liability Act 2002 (NSW). In its defence, Landpower identified a number of alleged concurrent wrongdoers, none of which were joined as defendants. Landpower also brought a cross- claim against one of the concurrent wrongdoers identified in the defence, Penske Power Systems Pty Ltd (‘Penske’). The cross-claim alleged that if Landpower was liable to the Northcotts, that liability was a result of Penske having breached a contract between it and Landpower, having been negligent in undertaking its work for Landpower, having engaged in misleading or deceptive conduct, and/or having made negligent misrepresentations to Landpower. Penske sought to have the cross-claim dismissed. The primary judge did so summarily. Landpower appealed from that decision. The appeal raised questions in relation to the circumstances in which a defendant who raises a proportionate liability defence and names concurrent wrongdoers may still bring
cross-claims against such wrongdoers. The Court of Appeal allowed the appeal.
On s 36: Other than cross-claims for contribution pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 36 of the CLA does not necessarily preclude cross-claims against alleged concurrent wrongdoers: [49]-[51].
(1) In relation to an apportionable claim, nothing in this Part or any other law prevents a plaintiff who has previously recovered judgment against a concurrent wrongdoer for an apportionable part of any damage or loss from bringing another action against any other concurrent wrongdoer for that damage or loss.
(2) However, in any proceedings in respect of any such action the plaintiff cannot recover an amount of damages that, having regard to any damages previously recovered by the plaintiff in respect of the damage or loss, would result in the plaintiff receiving compensation for damage or loss that is greater than the damage or loss actually sustained by the plaintiff.
(1) The court may give leave for any one or more persons to be joined as defendants in proceedings involving an apportionable claim.
(2) The court is not to give leave for the joinder of any person who was a party to any previously concluded proceedings in respect of the apportionable claim.
Nothing in this Part:
(a) prevents a person from being held vicariously liable for a proportion of any apportionable claim for which another person is liable, or
(b) prevents a partner from being held severally liable with another partner for that proportion of an apportionable claim for which the other partner is liable, or
(c) affects the operation of any other Act to the extent that it imposes several liability on any person in respect of what would otherwise be an apportionable claim.
23 Nov 2024
We acknowledge the traditional owners and custodians of the land on which we work and we pay respect to the Elders, past, present and future.