New South Wales Consolidated Acts

LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1946 - SECT 5

5 Proceedings against and contribution between joint and several tort-feasors

(1) Where damage is suffered by any person as a result of a tort (whether a crime or not):

(a) judgment recovered against any tort-feasor 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 tort-feasor in respect of the same damage,

(b) if more than one 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, brother, sister, half-brother, half-sister, parent or child, of that person, against tort-feasors liable in respect of the damage (whether as joint tort-feasors 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,

(c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought.

(2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.

(3) For the purposes of this section:

(a) the expressions “parent” and “child” have the same meanings as they have for the purposes of the Compensation to Relatives Act of 1897 as amended by subsequent Acts, and

(b) the reference in this section to “the judgment first given” shall, in a case where that judgment is reversed on appeal, be construed as a reference to the judgment first given which is not so reversed and, in a case where a judgment is varied on appeal, be construed as a reference to that judgment as so varied, and

(c) the expression "spouse" of a person includes a person with whom the person had a de facto relationship (within the meaning of the Property (Relationships) Act 1984 ) at the time of his or her death.

(3A) For the purposes of this section, where a person commits a tort and the Crown is vicariously liable under section 8 of the Law Reform (Vicarious Liability) Act 1983 in respect of that tort, the Crown and the person are joint tort-feasors.

(4) Nothing in this section shall:

(a) apply with respect to any tort committed before the commencement of this Part, or

(a1) apply so as to cause the Crown and a person in the service of the Crown to be joint tort-feasors with respect to a tort to which section 8 of the Law Reform (Vicarious Liability) Act 1983 applies committed before the day appointed and notified under section 2 (2) of the Law Reform (Vicarious Liability) Act 1983 , or

(b) affect any criminal proceedings against any person in respect of any wrongful act, or

(c) render enforceable any agreement for indemnity which would not have been enforceable if this section had not been passed.

(5) An amendment made to this section by the Miscellaneous Acts Amendment (Relationships) Act 2002 does not apply in respect of an action where the tort concerned occurred before the commencement of the amendment.