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This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
CIVIL LIABILITY AMENDMENT
(PROPORTIONATE LIABILITY) BILL 2004
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 4 amended (Application of Act)
5. Part 9A inserted
PART 9A Proportionate Liability
43A. Application of Part 9
43B. Proportionate liability for apportionable claims
43C. Contribution not recoverable from defendant
43D. Duty of defendant to inform plaintiff about
concurrent wrongdoers
43E. Subsequent actions
43F. Joining non-party concurrent wrongdoer in
action
43G. This Part does not prevent certain liability, &c.
[Bill 66]-I
2
CIVIL LIABILITY AMENDMENT
(PROPORTIONATE LIABILITY) BILL 2004
(Brought in by the Minister for Justice and Industrial
Relations, the Honourable Judith Louise Jackson)
A BILL FOR
An Act to amend the Civil Liability Act 2002
Be it enacted by His Excellency the Governor of Tasmania,
by and with the advice and consent of the Legislative
Council and House of Assembly, in Parliament assembled,
as follows:
Short title
1. This Act may be cited as the Civil Liability Amendment
(Proportionate Liability) Act 2004.
Commencement
2. This Act commences on a day to be proclaimed.
Principal Act
3. In this Act, the Civil Liability Act 2002* is referred to
as the Principal Act.
*No. 54 of 2002
[Bill 66] 3
s. 4 No. Civil Liability Amendment 2004
(Proportionate Liability)
Section 4 amended (Application of Act)
4. Section 4 of the Principal Act is amended by inserting
after subsection (3) the following subsection:
(4) Part 9A does not apply to a cause of action
accrued before the commencement of the Civil
Liability Amendment (Proportionate Liability) Act
2004.
Part 9A inserted
5. After section 43 of the Principal Act, the following Part
is inserted:
PART 9A PROPORTIONATE LIABILITY
Application of Part 9
43A. (1) This Part applies to the following claims
("apportionable claims"):
(a) a claim for economic loss or damage to
property in an action for damages
(whether in contract, tort or otherwise)
arising from a failure to take reasonable
care (but not including any claim arising
out of personal injury);
(b) a claim for economic loss or damage to
property in an action for damages under
the Fair Trading Act 1990 for a
contravention of section 14 of that Act.
(2) In this Part
"concurrent wrongdoer", in relation to a
claim, means a person who is one of two
or more persons whose act or omission
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2004 Civil Liability Amendment No. s. 5
(Proportionate Liability)
caused, independently of each other or
jointly, the damage or loss that is the
subject of the claim;
"excluded concurrent wrongdoer" means
a concurrent wrongdoer referred to in
subsection (5)(a) or (b).
(3) For the purpose of this Part, apportionable
claims are limited to those claims specified in
subsection (1).
(4) For the purpose of this Part it does not
matter that a concurrent wrongdoer is insolvent, is
being wound up or has ceased to exist or died.
(5) Nothing in this Part operates to limit the
liability of a concurrent wrongdoer in proceedings
involving an apportionable claim if
(a) the concurrent wrongdoer intended to
cause the economic loss or damage to
property that is the subject of the claim;
or
(b) the concurrent wrongdoer fraudulently
caused the economic loss or damage to
property that is the subject of the claim.
(6) The liability of an excluded concurrent
wrongdoer is to be determined in accordance with
the legal rules, if any, that (apart from this Part) are
relevant.
(7) The liability of any other concurrent
wrongdoer who is not an excluded concurrent
wrongdoer is to be determined in accordance with
the provisions of this Part.
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s. 5 No. Civil Liability Amendment 2004
(Proportionate Liability)
(8) This Part does not apply to civil liability
that is excluded from the operation of this Part by
section 3B.
(9) For the purpose of this Part, there is a
single apportionable claim in proceedings in respect
of the same loss or damage even if the claim for the
loss or damage is based on more than one cause of
action (whether or not of the same or a different
kind).
Proportionate liability for apportionable
claims
43B. (1) In any proceedings involving an
apportionable claim
(a) the liability of a defendant who is a
concurrent wrongdoer in relation to that
claim is limited to an amount reflecting
that proportion of the damage or loss
claimed that the court considers just,
having regard to the extent of the
defendant's responsibility for the
damage or loss; and
(b) the court is not to give judgment against
the defendant for more than that
amount.
(2) If the proceedings involve both an
apportionable claim and a claim that is not an
apportionable claim
(a) liability for the apportionable claim is to
be determined in accordance with the
provisions of this Part; and
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2004 Civil Liability Amendment No. s. 5
(Proportionate Liability)
(b) liability for the other claim is to be
determined in accordance with the legal
rules, if any, that (apart from this Part)
are relevant.
(3) In apportioning responsibility between
defendants in the proceedings
(a) the court is to exclude that proportion of
the damage or loss in relation to which
the plaintiff is contributorily negligent
under any relevant law; and
(b) the court is to have regard to the
comparative responsibility of any
concurrent wrongdoer who is not a party
to the proceedings.
(4) This section applies in proceedings
involving an apportionable claim whether or not all
concurrent wrongdoers are parties to the
proceedings.
(5) A reference in this Part to a defendant in
proceedings includes any person joined as a
defendant or other party in the proceedings (except
as a plaintiff) whether joined under this Part, under
rules of court or otherwise.
Contribution not recoverable from defendant
43C. (1) A defendant against whom judgment is
given under this Part as a concurrent wrongdoer in
relation to an apportionable claim
(a) cannot be required to contribute to any
damages or contribution recovered from
another concurrent wrongdoer in respect
of the apportionable claim (whether or
7
s. 5 No. Civil Liability Amendment 2004
(Proportionate Liability)
not the damages or contribution are
recovered in the same proceedings in
which judgment is given against the
defendant); and
(b) cannot be required to indemnify any
such wrongdoer.
(2) Subsection (1) does not affect an
agreement by a defendant to contribute to the
damages recoverable from, or to indemnify, another
concurrent wrongdoer in relation to an
apportionable claim.
Duty of defendant to inform plaintiff about
concurrent wrongdoers
43D. (1) If
(a) a defendant in proceedings involving an
apportionable claim has reasonable
grounds to believe that a particular
person (the "other person") may be a
concurrent wrongdoer in relation to the
claim; and
(b) the defendant fails to give the plaintiff,
as soon as practicable, written notice of
the information that the defendant has
about
(i) the identity of the other person;
and
(ii) the circumstances that may make
the other person a concurrent
wrongdoer in relation to the claim;
and
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2004 Civil Liability Amendment No. s. 5
(Proportionate Liability)
(c) the plaintiff unnecessarily incurs costs
in the proceedings because the plaintiff
was not aware that the other person
may be a concurrent wrongdoer in
relation to the claim
the court hearing the proceedings may order that
the defendant pay all or any of those costs to the
plaintiff.
(2) The court may order that the costs to be
paid by the defendant be assessed on an indemnity
basis or otherwise.
Subsequent actions
43E. (1) In relation to an apportionable claim,
nothing in this Part or any other law prevents a
plaintiff who has previously recovered judgment
against a concurrent wrongdoer for an apportionable
part of any damage or loss from bringing another
action against any other concurrent wrongdoer for
that damage or loss.
(2) However, in any proceedings in respect of
any such action the plaintiff cannot recover an
amount of damages that, having regard to any
damages previously recovered by the plaintiff in
respect of the damage or loss, would result in the
plaintiff receiving compensation for damage or loss
that is greater than the damage or loss actually
sustained by the plaintiff.
9
s. 5 No. Civil Liability Amendment 2004
(Proportionate Liability)
Joining non-party concurrent wrongdoer in
action
43F. (1) The court may give leave for any one or
more persons to be joined as defendants in
proceedings involving an apportionable claim.
(2) The court is not to give leave for the
joinder of any person who was a party to any
previously concluded proceedings in respect of the
apportionable claim.
This Part does not prevent certain liability, &c.
43G. (1) Nothing in this Part
(a) prevents a person from being held
vicariously liable for a proportion of any
apportionable claim for which another
person is liable; or
(b) prevents a partner from being held
severally liable with another partner for
that proportion of an apportionable
claim for which the other partner is
liable; or
(c) affects the operation of any other Act to
the extent that it imposes several
liability on any person in respect of what
would otherwise be an apportionable
claim.
(2) In subsection (1)(b)
"partner" means a person who has entered
into a partnership, within the meaning
of the Partnership Act 1891, with
another person.
10 Government Printer, Tasmania