South Australian Consolidated Acts South Australian Consolidated Acts8—Limitation of defendant's liability in cases of apportionable
liability
(1) If a defendant's
liability on a claim for damages is apportionable, the liability is limited
under this section.
(2) If the limitation
applies, the defendant's liability is limited to a percentage of the
plaintiff's notional damages that is fair and equitable having regard
to—
(a) the
extent of the defendant's responsibility for the harm; and
(b) the
extent of the responsibility of other wrongdoers (including wrongdoers who are
not party to the proceedings) whose acts or omissions caused or contributed to
the harm.
(3) For the purpose of
subsection (2)—
(a) 2 or
more wrongdoers who are members of the same group are to be treated as a
single wrongdoer; and
(b) if
the plaintiff was guilty of contributory negligence, that
contributory negligence will be brought into account as wrongdoing and a
percentage assigned to it; and
(c) if 2
or more wrongdoers are each entitled to the benefit of a limitation of
liability under this section (for some reason other than that they are members
of the same group), the aggregate percentage assigned to them cannot
exceed—
(i)
if there is no contributory negligence on the plaintiff's
part—100%; or
(ii)
if there is contributory negligence on the plaintiff's
part—100% less a percentage representing the extent of the plaintiff's
responsibility for his or her harm.
(4) In a case
involving apportionable liability, the court must proceed as follows:
(a) the
court first determines the plaintiff's notional damages;
(b) the
court gives judgment against any defendant whose liability is not subject to
limitation under this section for damages calculated without regard to this
Part;
(c) the
court determines, in relation to each defendant whose liability is limited
under this section, a proportion of the plaintiff's notional damages
equivalent to the percentage representing the extent of that defendant's
liability;
(d) the
court then gives judgment against each such defendant based on the assessment
made under paragraph (c) (but in doing so must give effect to any
special limitation of liability to which any of them may be entitled).
Example—
A Ltd (which runs a forestry business) has engaged B (an independent
contractor) to protect its forest from fire. C (an arsonist) sets the forest
on fire. B is negligent in failing to detect and stop C's malicious act. A Ltd
sues B and C for damages. In this case, B would be entitled to a limitation of
liability under this section but C would not. In working out the amounts for
which judgment should be given, the court would determine first the amount of
damages necessary to cover the damage caused by the fire. Judgment for that
amount would be given against C. In determining the amount for which judgment
should be given against B, responsibility for the damage would be divided
between B and C on essentially the same basis as would formerly have been
applicable to an action for contribution between them. Judgment would be given
against B for an amount reflecting the proportionate responsibility assigned
to B on that basis.
(5) The plaintiff is
not entitled to recover, by way of damages under the judgment, more than the
amount fixed as the plaintiff's notional damages.
Example—
Suppose that A has suffered a loss of $1 000 for which B, C and D are liable.
The liability of B and C is limited to 20% and 30% respectively, but D's
liability is not limited. Judgment is therefore given against B for $200,
against C for $300 and against D for $1 000. In this case, the court would fix
$1 000 as the plaintiff's notional damages—thus limiting the damages
that the plaintiff is entitled to recover under the judgment to that amount.
If A proceeded first to recover in full against B and C, recovery against D
would be limited to $500. Conversely, recovery in full against D would
preclude recovery against B and C. But rights of contribution may
arise—see section 9.
(6) However, this
section does not affect the award of exemplary damages and, if such damages
are awarded, they may be recovered in the ordinary way from a defendant
against whom they were awarded.