4 Concurrent Tortfeasors PDF

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CONCURRENT TORTFEASORS Joint tortfeasors and several concurrent tortfeasors compared Prior it was important to establish if they were joint or several (as in separate ones). in case of not employer/employee they would be joint tortfeasors (xl petroleum); it's several when two distinct and unrelated acts bring about the tort (penberthy the acts of engineer and pilot). Rule in Brinsmead v. Harrison Brinsmead v. Harrison (1872) FACTS claim for a conversion of a piano with 2Ds, the only wrongdoer sued one, went wrong so he brought a different claim to another person. but barred by the rule. P should have join them together in the claim . LAW

According to common law theory “since the reigns of the Henrys and the Edwards” and to discourage a multiplicity of actions in respect of the same wrong, where a tort is committed by joint tortfeasors, the plaintiff (the tort victim) has only one cause of action. The rule in Brinsmead v. Harrison (abolished by statute in 1946) is that a judgment obtained against one joint tortfeasor constitutes a bar to a subsequent action against another joint tortfeasor even although the judgment remains unsatisfied e.g. because the judgment debtor has become insolvent. As a result of the abolition of the rule in Brinsmead v. Harrison, exemplary damages may be awarded against one but not all of a number of joint tortfeasors (XL Petroleum).

Law reform miscellaneous reform act 1946: s5.1: (a) abolishes the rule in brinsmead v harrison. (b) applies to several and joint (by simply referring to concurrent liability): so if you have been imprudent enough not to bring action vs all the Ds since the beginning, now you can bring new actions (before barred by Brinsmead rule) but careful because: -if more than one action is brought in respect of tort, the sum recoverable under that judgment cannot in aggregate be more than the sum that has been given greater than the 1st judgment. (eg. take 10aud in first, 10 in the second, if you bring a third than for the aggregated damages you get 0) -if there isn't a good reason to bring again the reason, p will be responsible for d's legal expenses. c) abrogated Merryweather v nixan. Now, permissable to award damages against wrongdoers in different amount and exemplary to one and not the others. XL Petroleum (NSW) v. Caltex Oil (Australia) (1985) HCA FACTS caltex 1d and industrial plumbing company 2d and mr T 3d. they rendered unusable the petrol storage tanks. LAW

Claim for trespass to land, the 3 wrongdoer were joint. 5000 damages given to all 3. gave 150K of exemplary damages by HC. Caltex said that if only one cause of action than it shouldn't be possible to give different amount of exemplary damages. HC said that only caltex behaviour involved the contumelious disregard whereas the 2-3D didn't deserve the issuing of exemplary damages.

if several tortfeasors, p can recover from each of them 100% CONTRIBUTION BETWEEN CONCURRENT TORTFEASORS (a) Common law and statute Merryweather v. Nixan (1799) FACTS P brings claim in conversion for some machinery in a mill against 2 tortfeasors, p was awarded 840pounds in total and he decided to enforce it just against one D, that because each of these tortfeasors is liable for the whole sum. it's a matter entirely for the p.

LAW

No right of contribution between concurrent tortfeasors. doesn't give any reason, he thinks that no other similar action has been brought before. This was a bit wrong because what if very different grades of responsibility.

Now abolished by statute s5(c)(1): there has to be a tort, a tortfeasor can recover from another tortfeasor if he would have been liable for the same damage. however no person is entitled to recover when the claimant for contribution

is liable to indemnify the person that made that same claim (acknowledgement of a damson v jarvis rule) Exception in common law was Adamson v. Jarvis (1827) FACTS p was auctioneer, instructed by a client (d) but he misrepresented the auctioneer showing that he had good title to the goods. so the innocent auctioneer was sued for conversion and had to pay to the true owner, he sought to recover from d.

LAW

Rule p was entitle to recover all the damage that he had paid to the true owner of the goods.

(b) Who may claim contribution? “Any tortfeasor liable” i.e. responsible in law for the damage suffered by the tort victim. -who has been held liable in a judgment -person who has settle the tort victim claim -tortfeasor who has settle the victim claim even w/o non admission of liability Tram company sues D on the basis of 5(c)(1) to recover Bitumen & Oil Refineries (Aust) v. Commissioner for Government Transport (1955) HCA FACTS p's is a tram company who negligently together another D a passenger of the tram. S5.1 c p sues d on that basis because if D had been sued he would have been liable. but in order to claim contribution you need to be a liable tortfeasor but the liability judged between tram company and victim was in a contractual relationship and had been decided as such, so no “any tortfeasor”.

LAW

even though there was this defect in the pleading, still the ct judged that it was an original tort so P could recover. but important that has to be from a tort.

Stott v. West Yorkshire Road Car Co [1971] QB FACTS P was a motorcyclist and collided with d's bus, he brought a negligence action, bus d joined in the proceeding the driver of a van, the bus said that he had to pull out because the van was negligently parked. bus entered in settlement with p, and paid 10k pounds to P. but the settlement was said that was without any admission of liability. Now bus company wants to recover from tortfeasor 2(van), is bus company tortfeasor liable if based on the basis of settlement with no admission of liability?

LAW

yes otherwise it would discourage people from settling.

(c) From whom may contribution be claimed? “Any other tortfeasor who is, or would if sued have been, liable” So not only liable in the judgment, but even people who if had been sued would have been held liable. or if sued at any time would have been liable. Brambles Constructions v. Helmers (1966) HCA FACTS a worker employed by helmers suffered personal injury which was caused by helmers negligence, it happened within the statute of limitation (what back then was 6y), but after that expiration helmers sought to recover contribution from brambles, another tortfeasor. 2nd tortfeasor argued that being the statute of limitation in place, he couldn’t be sued.

LAW

“if sued would…” includes any time so 1 second after the tort and even after expiry of statutes of limitation.

Limitation Act 1969 (NSW) s 26 2y of limitation period to bring claim against other tortfeasors after one tortfeasor had been judged liable/or settled 3y after the expiration of tortfeasor 1 subsection 1 paragraph b: 4y after the expiration of the period for the main (d) “Same damage”. A tortfeasor may recover contribution from another tortfeasor only if both parties are liable in respect of “the same damage” i.e. the same injury or legal wrong what if successive injuries have been suffered but unrelated.

Dillingham Constructions v. Steel Mains (1975) HCA FACTS a worker employed by dillingham suffered back injury, cause negligence of dillingham in failing to provide safe environment, he gets money. 2y later the same worker while employed at steel mains, for the same reasons, he brings claim against steel mains. but than steel mains after being liable sued dillingham. it's not clear why they did it, because it's not the same damage mentioned in s5.a

LAW

the ct said it's not for contribution because it's not the same damage! that's it.

(e) “Just and equitable” contribution Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5(2): criteria used is that the amount of contribution to which one is entitled is just and equitable with respect of the degree of responsibility to the damage inflicted by that person on the p. Chapman v. Hearse (1961) HCA FACTS chapman was driving his car and now he in the middle of the road, dr perry goes to rescue him, mr hearse kills dr perry because failed to keep a proper lookout. the family sued hearse and he jointed chapman.

LAW

just and equitable meant here that chapman owed to make to hearse a contribution of 1/4. so limited because hearse was considered the main tortfeasor.

Voli v. Inglewood Shire Council (1963) HCA FACTS architect. inglewood council (because was the occupier) was 100% responsible to victim, council sought to recover contribution from the architect.

LAW

the damages were to be shared 50/50. Because council failed to properly examine the structure.

CONTRIBUTION AND INDEMNIFICATION BETWEEN EMPLOYER AND EMPLOYEE (a) Common law principles 1. employer is vicariously liable for tort committed by employee in course of employment 2. if tort committed by employee in the course of employment, employer/ee are concurrent and joint tortfeasors (now not important) 3. vicarious liability of employer in no way affects personal liability of employee (vicarious liability is just an add-on on his personal liability). 4. where an employer is vicariously liable for tort committed by employee the employer is entitled to be indemnified by employee for: 

breach of implied term of the contract of employment (implied term: employee will exercise reasonable care in carrying out his contractual duties) as opposed to employer implied term to provide safe work environment



contribution for concurrent liability, up to 100%.

5. employee is entitled to recover from employer employer's personal liability. In most situation is the employee that is going to be liable for everything, and he usually isn't insured. Lister v. Romford Ice & Cold Storage Co [1957] UK FACTS RI employer of a father and son, son was truck driver and father was son's assistant. in the course of employment while driving backed onto his father and caused personal injury. So there was negligence on part of fellow employee. Father recovers money from employer, but now employer asks money from the son. and he was found liable because: - by driving negligently he breached the implied term of taking reasonable care and that gives complete indemnification. - or recover because if sued if would have been liable 100% for the same tort.

LAW

Here it was the insurer that had the rights of the insured and that brought the claim against the son.

(b) Statutory modification of the common law; and the “serious and wilful misconduct” exception

Employees Liability Act 1991 (NSW) ss 3-6 (Statutory Provisions) modifies the above principle. If an insurer sought to invoke common law principle (romford ice) there would be the loss ultimately falls on the employer because usually would be better situated to respond to the claims. This doesn't affect personal liability of the employee. but it says that if employer is vicariously liable than the EE is not liable to indemnify ER. EE is entitled to be indemnify for personal negligence from ER. but if the two are jointed in proceedings. it needs to be in the course of employment. Under this statute Lister would have been decided differently. exception s5: this new rule doesn't apply if employee conduct constitute serious and wilful misconduct. New South Wales v. Eade [2006] NSWSC FACTS eade member of police nsw. p had brought proceedings against nsw for false imprisonment, wrongful prosecution etc all committed by eade. nsw admitted liability and assessed in 300k dollars. deliberate liability on eade's part was deemed to be serious and wilful so not able to use the protection of s3 employees liability act.

LAW

mr eade had to pay 80% from him to nsw. not 100% because there was some kind of wrongdoing which was failure to proper supervise him.

vicariously liability of the employment, only in respect of the employee's conduct in the course of employment.(issue in the jamaican case). Proportionate liability In claims for economic loss or property damage (but not personal injury or death) “arising from a failure to take reasonable care”, a concurrent tortfeasor is liable only for his or her “just” proportionate share of the plaintiff’s damage. Civil Liability Act 2002 (NSW) ss 34-39 (Statutory Provisions) Competition and Consumer Act 2010 (Com) “Pt VIA – Proportionate Liability for Misleading and Deceptive Conduct” (ss 87CB-87CI) (applies to claims for damages in respect of economic loss or property damage caused by misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law) Reinhold v. New South Wales Lotteries Corporation (No 2) [2008] NSWSC FACTS he won but the ticket got canceled for negligence (just economic loss) brings a claim against both newsagent and NSW lotto authority.

LAW

before each of those wrongdoers were liable for 100% so everyone liable for 2m but now with the proportionate liability newsagent just for 10% and lotto NSW for 90%....