Negligence 4 - Multiple Tortfeasors PDF

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Negligence 4 - Multiple Tortfeasors General Sometimes the damage in respect of which the plaintiff sues is attributable to more than one person the rule is thus they may sue as many defendants as are legally responsible for it, subject only to the rule that he or she may never recover more than the total loss suffered (D’Angola v Rio Pioneer Gravel Co Pty Ltd) Categorical Definitions Joint Tortfeasors

When two or more defendants are held liable to the plaintiff for the same wrong Situations where this might occur are: - When one defendant is vicariously responsible for the tort of the other - When one committed the tort as the other’s agent - Both defendants shared (and breached) the very same duty towards the plaintiff - When the defendants were acting in concert toward a common end

Several Tortfeasors

Several tortfeasors are liable for different wrongs and are unconnected to one another save in the respect that their wrongs all caused the plaintiff harm.

Concurrent liability

Where multiple tortfeasors, joint or several, are liable for doing the same damage, their liability is said to be concurrent. All joint tortfeasors are necessarily liable concurrently but several tortfeasors can either be liable concurrently for causing the plaintiff the same injury or their separate wrongs may cause the plaintiff distinct injures.

Solidary Liability (Personal injury) - Plaintiffs of solidary liability are justified in cases of death and personal injury - Contribution action

Each and every tortfeasor is liable to the plaintiff for the whole of the plaintiff’s loss, not just for such proportion of it as he or she personally caused. Advantageous to a plaintiff where one or more tortfeasors is difficult to identify, insolvent or uninsured - one single deep-pocketed defendant can be identified and brought to judgment. Was once the governing principle in all cases of concurrent wrongdoing and remains the rule at common law (political pressure from insurers and defendants has led it to be replaced by proportionate liability)

Proportionate Liability (Apportionable claims economic and property loss arising from breach of duty of care)

Concurrent wrongdoers are liable to the plaintiff only for such proportion of the damage as represents the measure of their own responsibility for it.

Indemnity

Usually protection of proceedings by passing on the baton to a third party (insurance schemes) In this context, it is 100% contribution, you fully absolve yourself of liability by saying someone else was wholly responsible for the damage.

Liability of several tortfeasors for distinct damage Each is liable only for the separate loss he or she has caused. For example - D1 causes damage 1, D2 causes damage 2 and they are clearly divisible. It is particularly difficult to assess where the plaintiff has sustained a disease or mental harm through the tortious acts of several different defendants. Nilon v Bezzina - FACTS: The plaintiff was involved in a motor vehicle accident in 1976 and was involved in another accident in 1982. His disability from back injury was increased from 30% (original) to 70% of his earning capacity. - HELD: Present case is not one in which the plaintiff’s supervening act entirely destroyed the first accident. Later injury simply added by a measurable degree to the plaintiff’s existing disability resulting from the first accident. - PRINCIPLE: Each of them independently and successfully created an element of disability and hence equally liable for the 70% loss of earning capacity. When multiple distinct harms occur, it is impossible for the latter harm to subsume the first, and each party is liable only for the harm that they caused. Multiple car accidents held to have damaged the spine in two distinct ways. Hunt v Protonotarios - The supervening accident of critical importance was the third one - the 1987 accident had no bearing on the occurrence of the 2001 accident but the damage sustained in the latter was greater because of that sustained in the former. The first defendant is liable for any additional damage resulting from the second accident arising from the underlying injuries sustained in the first. - This falls under the second category of the rules stated in State Government Insurance Commission v Oakley: (1) Where the further injury results from a subsequent accident which would not have occurred had the plaintiff not been in the physical condition caused by the defendant's negligence, the added damage should be treated as caused by that negligence (D2 damage wholly caused by D1 damage) (2) Where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's

negligence; (D2 damage aggravated by D1 damage) (3) Where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained includes no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first. … (D2 wholly separate from D1) Liability for Multiple Tortfeasors causing the same damage Situations where this might occur are: - When one defendant is vicariously responsible for the tort of the other - When one committed the tort as the other’s agent - Both defendants shared (and breached) the very same duty towards the plaintiff - When the defendants were acting in concert toward a common end Thompson v Australian Capital Television Pty Ltd (joint liability) - FACTS: Channel 9 produced a defamatory program and licensed it to Channel 7 to broadcast - plaintiff sued channel 9 which then sued channel 7 for broadcasting it. - HELD: That both parties were in the wrong and channel 9 was entitled to sue channel 7 (to apportion liability). - PRINCIPLE: For there to be joint tortfeasors there must be a concurrence in the act or acts causing damage, not merely a coincidence of separate acts which by their conjoined effect cause damage - Where D1 is vicariously liable for D2’s negligence, i.e. employee has committed a tort whilst acting in the course of his employment -> employer is liable. - Where D1 and D2 have breached the same duty, i.e. where joint tenant brings over visitors who disrespect/damage the property. - Where D1 and D2 are both acting in concert towards a common end, i.e. the defendant (channel 7 and 10) commit separate defamatory broadcasts with the intention of ruining P’s reputation. Solidary Liability (Law Reform Act) Criticised as unfair to defendants because it imposes on them liability disproportionate to fault. The rule contributed to significant increases in the cost of liability insurance for certain groups of defendants. Two defendants - D1 fraud and D2 negligence - D1 would be liable for 100% and excluded as a concurrent wrongdoer because of the fraud and hence not entitled to proportionate liability under the legislation, remains severally liable on a solidary basis as a concurrent tortfeasor under ordinary common law rules. Applies in circumstances of personal injury - two people are both 100% liable for the personal injury. To dispute this, they have to recover a contribution from another (D1 sues P1, P1 sues P2 to try diminish liability, if P2 is insolvent then P1 has to bear the full cost.) Contribution actions aim to limit the proportion of liability and compensation - defendant brings actions against another defendant in solidary liability cases.

Cases which illustrate this include: Chapman v Hearse - PRINCIPLE: In the case of several concurrent tortfeasors, it is up to the tortfeasors themselves to sue for contribution once one or more has been held liable. Brambles Construction Pty Ltd v Helmers - FACTS: Employer (D1) was held negligent for P’s injury - D1 sued D2 claiming a contribution towards its liability. D1’s action against D2 commenced proceedings beyond the ordinary statutory limitation period for civil litigation. D2 claimed that it was beyond the period and thus should fail. - HELD: The High Court rejected this submission and allowed the contribution claim. - PRINCIPLE: A temporal element was not imputed into the relevant statute - any tortfeasor can successfully recover a contribution action from any other joint tortfeasor at any time. Law Reform Act 1995 (QLD), ss 6(a)-(b) 6. Where damage is suffered by any person as a result of a tort (whether a crime or not): (a) judgment recovered against any tortfeasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tortfeasor in respect of the same damage; (b) if more than 1 action is brought in respect of that damage by or on behalf of the person by whom it was suffered, or for the benefit of the estate, or of the spouse, parent, or child of that person, against tortfeasors liable in respect of the damage (whether as joint tortfeasors or otherwise)--the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given; and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the court is of opinion that there was reasonable ground for bringing the action; Proportionate Liability Each concurrent tortfeasor would be liable only for a share of the plaintiff’s loss proportionate to that tortfeasor’s responsibility. This approach is consistent with the idea of tort law as a system of corrective justice - a person is obliged to correct only the effects of the wrong he or she has personally done, not bear responsibility for correcting losses caused by the wrongs of others. If one of the parties is insolvent, the plaintiff will not recover for the full loss suffered under proportionate liability. The policy of the legislation is pro-defendant and reduces defendant’s (also insurer’s) liability but also leaves plaintiffs to shoulder the costs. Defendant’s liability is limited to an amount reflecting the proportion of the damage that the court just having regard to the extent of D’s responsibility for the loss - gives wide discretion and allows apportionment for a plaintiff’s contributory negligence. Hunt v Hunt - FACTS: Lawyers fraud signatures and negligently draft up documents to enable loans - HELD: The High Court held that the two parties equally contributed to the plaintiff’s loss rather than D2 (who had deep pockets) bearing it all. In doing so, they defined the relevant legislation and what conduct falls under proportionate liability (a proportion of the damage). - PRINCIPLE: This case looks at transferring liability to the plaintiff for loss caused by the

wrongful act or omission by another who is impecunious. The deep pocket defendant will only be held liable for that proportion of the loss that reflects its responsibility. It is up for the plaintiff to bear the loss if another is insolvent. Civil Liability Act - sections on proportionate liability 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… (3) This part does not apply to a claim-(a) arising out of personal injury; or… (b) by a consumer [an individual buying goods or services for person or domestic use] 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. 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. 32B Subsequent actions (1) In relation to an apportionable claim, nothing in this part prevents a plaintiff who has previously recovered judgment against a concurrent wrongdoer for an apportionable part of any loss or damage from bringing another action against any other concurrent wrongdoer for that loss or damage. (2) However, in any proceeding in relation to the other action, the plaintiff can not recover an amount of damages that, having regard to any damages previously recovered by the plaintiff in relation to the loss or damage, would result in the plaintiff receiving compensation for loss or damage that is greater than the loss or damage actually suffered by the plaintiff....