LAWS1113 Lecture 11

Negligence: Multiple Tortfeasors

General Definitions

“Joint” Liability: 2 (or more) Ds liable for same wrong
“Several” Liability: 2 (or more) Ds liable for different wrongs
“Concurrent” Liability: 2 (or more) Ds liable for the same injury
“Liability for Distinct Damage”: liability of 2 (or more) Ds for different injuries/losses caused.
Solidary Liability: each D in principle liable to P for the whole injury suffered.
Proportionate Liability: each D liable to P only for a proportion of a single injury suffered.
Contribution: claim by D1 against D2 for a contribution towards D1’s solidary liability.
Indemnity: D1 entitled to 100% contribution from D2
Aggravation: D2 adding to damage already caused by d1.
Agency: authorizing another party to act for you (you remain liable)
Vicarious Liablity: employer liability, liability for agents

Joint Concurrent Liability

  • 2 or more defendants, only one wrong committed
  • (a) Vicarious Liability (eg employer liability, liability for agents)
  • (b) Joint Duties (eg joint occupiers’ liability to an entrant)
  • (c) Ds Acting In Concert (‘concerted action toward a common end’)

Several Concurrent Liablity

  • 2 or more defendants, only one INJURY committed, but multiple wrongs
  • Eg. Car accident where a car is hit on both sides by 2 separate cars

Concurrent Tortfeasor rules/ramifications

  • Plaintiff can sue either or both tortfeasors for 100% of the damage (solidiary liability)
  • Winning or settling with one does not prevent them from suing the other(s) for the remainder of the damage, but total payments from settlements and court orders cannot exceed 100%
  • Losing tortfeasors can then sue the other tortfeasor(s) for contribution towards their payment
  • Proportionate liability is now be applied for property damage and personal loss – tortfeasor no longer liable for 100%, only the % they personally contributed – personal injury is still solidiary however (CLA s31)

Several Liability for Distinct Harms

  • Multiple defendants, multiple distinct injuries from separate wrongs
  • Each defendant liable for their distinct wrong’s damage, but not the other – cannot claim contribution (eg. Nilon v Bezzina)
  • Includes aggravation of previous injury where the new injury does not completely subsume the original – if subsumed, original defendant no longer liable at all

How Contribution Works

  • Find the final amount of damages awarded
  • Make any reductions required (eg. Contributory negligence)
  • Seek contribution from any other party who could have been sued at any point (statute of limitations, settlements with plaintiff etc. not relevant)

Relevant Cases

Thomson v ACT: Releasing one or more joint concurrent tortfeasor from liability does not bar action against any others. Releasing channel 9 from liability from broadcasting in NSW did not prevent suing channel 7 in the ACT

Chapman v Hearse: 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.

Bonser v Melnacis: An act barring the employer from suing their employer did not bar them from suing their employers insurer, as they were concurrent tortfeasors. (Effectively Thompson v ACT with statute rather than a release)

Lister v Romford Ice: Contribution can amount up to 100%, completely indemnifying the party originally sued. Father sued his son’s employer, employer sought and received 100% contribution from son.

Nilon v Bezzina: 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 Prontonotarios: 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 neck in two distinct ways.

SGIC v Oakley: When a second injury occurs that would not have occurred but for the first injury, the first defendant is liable. When additional aggravation to the first injury occurs that would not have occurred otherwise, the first defendant is liable only for that aggravation.

Relevant Legislation

CLA s28: (1) Proportionate liability applies for claims for property damage and economic loss
(3) Proportionate liability does not apply for personal injury or consumer claims

CLA s30: Definition of concurrent tortfeasor (one of two or more defendants potentially liable for a single injury/claim)

CLA s31: Proportions are limited to what is just and equitable, maximum of 100%