South Australian Consolidated Acts South Australian Consolidated Acts (1) In this Act—
"apportionable liability"—see subsection (2);
"claimant" means a person who asserts, or is entitled to assert, a right to
damages for harm;
"contributories" means the person (or persons) seeking contribution under this
Act and the person (or persons) from whom contribution is sought;
"contributory negligence" means a failure by a person who suffers harm to take
reasonable care for his or her own protection or the protection of his or her
own interests;
"damages" means compensation or damages for harm and includes solatium but
does not include workers compensation;
"defendant" includes a third party (that is, the defendant to a third-party
claim);
"derivative harm" means harm suffered as a result of injury to, or death of,
another (but does not include nervous shock arising from injury to, or death
of, another);
Examples—
1 The loss suffered by dependants as a result of
the death of the person on whom they are dependent (See Part 2 of the Wrongs
Act 1936 ).
2 Loss or impairment of consortium (See section 33
of the Wrongs Act 1936 ).
3 Business losses resulting from injury to or
death of spouse who participated in the business (See section 34 of the Wrongs
Act 1936 ).
"derivative liability" means—
(a) a
vicarious liability (including a partner's liability for the act or omission
of another member of the partnership); or
(b) a
liability of a person who is subject to a non-delegable duty of care for the
act or omission of another that places the person in breach of the
non-delegable duty; or
(c) if
an insurer or indemnifier is directly liable to a person who has suffered harm
for the act or omission of a person who is insured or indemnified against the
risk of causing the harm—the liability of the insurer or indemnifier; or
(d) a
liability as nominal defendant under a statutory scheme of third-party motor
vehicle insurance;
"duty of care" means a duty to take reasonable care or to exercise reasonable
skill (or both);
"group"—a group consists of a person who is directly liable for a
particular act or omission and the person or persons (if any) who have a
derivative liability for the person's act or omission;
"harm" includes loss of life, personal injury, damage to property, economic
loss and loss of any other kind (whether the harm is primary or derivative);
"innocent"—wrongdoing is innocent if the wrongdoer whose act or omission
actually caused the harm neither intended to cause harm nor was negligent in
causing harm;
"negligent wrongdoing" means—
(a) a
breach of a duty of care that arises under the law of torts; or
(b) a
breach of a contractual duty of care; or
(c) a
breach of a statutory duty of care that is actionable in damages or innocent
wrongdoing that gives rise to a statutory right to damages;
"notional damages"—a plaintiff's notional damages is the amount of the
damages (excluding exemplary damages) to which the plaintiff is, or would be,
entitled assuming—
(a) no
contributory negligence; and
(b) the
defendant were fully liable for the plaintiff's harm and were not entitled to
limitation of liability under—
(i)
this Act; or
(ii)
any other Act that limits the liability of defendants of
a particular class (as distinct from one that imposes a general limitation of
liability); or
(iii)
a contract;
"primary harm" means harm other than derivative harm;
"special limitation" of liability means a limitation of liability to which a
defendant is entitled under—
(a) an
Act (other than this Act) that limits the liability of defendants of a
particular class (as distinct from one that imposes a general limitation of
liability); or
(b) a
contract;
"wrongdoer" means—
(a) a
person who commits an act, or makes an omission, that causes or contributes to
harm (including a person whose act or omission contributes to his or her own
harm); or
(b) a
person who has a derivative liability for harm resulting from the act or
omission of someone else;
Note—
A person may be considered a wrongdoer even though the person—
• has died; or
• has been wound
up or has ceased to exist; or
• has become
insolvent; or
• cannot be
found.
"wrongdoing" means an act or omission that causes or contributes to harm
(including such an act or omission on the part of the person
who suffers the harm); and a reference to the "wrongdoing of a
wrongdoer" (or a " defendant") is to be understood as a reference to
wrongdoing for which that person is directly liable or for which that person
has a derivative liability.
(2) A liability is an
"apportionable liability" if the following conditions are satisfied:
(a) the
liability is a liability for harm (but not derivative harm) consisting
of—
(i)
economic loss (but not economic loss consequent on
personal injury); or
(ii)
loss of, or damage to, property;
(b) 2 or
more wrongdoers (who were not acting jointly) committed wrongdoing from which
the harm arose;
(c) the
liability is the liability of a wrongdoer whose wrongdoing was negligent or
innocent.
Example—
A, who acts with intention to defraud, prepares a false and deceptive
statement. B, who is not aware of the fraud, negligently publishes the
statement to C, who relies on it and suffers financial loss in consequence. C
brings an action against A and B under section 56 of the Fair Trading
Act 1987 . In this case, B's liability is an apportionable liability but
A's is not.
(3) A liability to pay
exemplary damages is not however to be regarded as an apportionable liability.