Contemporary Australian Tort Law
Review Question on Nominal Damages
The question arises regarding the necessity of the category of nominal damages within tort law, particularly in light of the court’s capacity to issue declarations which may serve to vindicate a plaintiff’s rights without the need for damages.
Multiple Tortfeasors
Liability Concept Overview
In certain instances, the loss or damage suffered by a plaintiff can be traced back to multiple tortfeasors. In such situations, the plaintiff is permitted to sue any defendants deemed legally responsible for the loss, with the caveat that the plaintiff cannot recover more than the total loss incurred. This necessitates a clear understanding of various foundational concepts to comprehend the legal allocation of responsibility among multiple tortfeasors.
Key Concepts in Tort Liability
Joint Tortfeasors: When two or more defendants share liability to a plaintiff for the same wrongful act, they are referred to as joint tortfeasors. This scenario can unfold in several ways:
Vicarious Liability: One defendant may be vicariously liable for the tortious actions of another.
Agent Liability: A defendant may commit a tort while acting as an agent for another party.
Breach of Duty: Both defendants may have the same duty of care towards the plaintiff which they have breached, for instance, in cases involving joint occupiers of land failing to care for a visitor.
Acting in Concert: Both defendants may be cooperating towards a shared goal which results in harm to the plaintiff.
Several Tortfeasors: Conversely, several tortfeasors are liable for separate wrongs and are only linked through the fact that their respective actions have collectively caused damage to the plaintiff.
Concurrent Liability
Definition and Implications
When multiple tortfeasors, whether classified as joint or several, are liable for identical damages, their liability is characterized as concurrent.
As articulated by the High Court, "Concurrent tortfeasors are persons whose acts concur to produce the same damage." This definition implies two critical considerations:
All joint tortfeasors necessarily incur concurrent liability because if Defendants 1 (D1) and 2 (D2) are liable for the same wrongful act, they are also liable for the same resultant damages.
Several tortfeasors may either be concurrently liable for a similar injury (e.g., two negligent drivers cause a singular accident that injures the plaintiff’s leg) or their liability can be non-concurrent (e.g., D1 causes a broken leg while D2 causes a broken arm).
Importance of Distinction
Understanding the difference between concurrent and non-concurrent tortfeasors is crucial:
Non-Concurrent Liability: Each tortfeasor is liable only for damages they specifically caused (thus termed ‘severally liable’).
Concurrent Liability: If tortfeasors are concurrently liable for damage, liability is typically described as ‘solidary.’
Solidary Liability
Explanation
Solidary liability indicates that each and every tortfeasor can be held accountable for the totality of the plaintiff’s loss, not merely their individual share. This principle is applicable irrespective of whether the concurrent liability derives from joint or several tortfeasors.
The term ‘joint and several liability’ is often used, although it can be misleading as it does not clarify the distinctions between joint tortfeasors (who are necessarily concurrently liable) and several tortfeasors (who may or may not be).
Historically, solidary liability was the predominant principle governing concurrent wrongdoing cases and remains a common law standard. However, legislative changes have modified this in many instances to introduce proportionate liability.
Proportionate Liability
Overview and Legislative Changes
The principle of proportionate liability stipulates that concurrent wrongdoers are liable only for a portion of the damages reflecting their own levels of responsibility. Legislation governing proportionate liability arose in response to the insurance crisis of the early 2000s, and now prevails across all Australian jurisdictions for claims involving property damage and economic loss. Importantly, it does not extend to personal injury cases.
Characteristics of Proportionate Liability
Defined as applicable to claims for economic loss or property damage arising from breaches of duty of care, as well as those resulting from statutory breaches, such as misleading conduct.
Concurrent Wrongdoers: This encompasses two or more individuals whose acts (whether taken together or independently) contribute to the same damage contested in the plaintiff's claim.
The provisions may include both joint tortfeasors and several tortfeasors; however, some legislation (e.g., from Queensland and South Australia) specifically addresses only several tortfeasors, thereby excluding joint ones from proportionate liability.
Impact on Liability
Where the proportionate liability framework is active, a defendant’s liability is limited to a measure reflecting their level of responsibility for the damages, allowing the court considerable discretion that parallels rights of apportionment associated with a plaintiff’s contributory negligence and inter-defendant contributions. Furthermore, unless specified otherwise in certain jurisdictions (excluding Victoria), courts are also guided to consider the responsibilities of non-party concurrent wrongdoers. Under this system, a defendant against whom a proportionate liability judgment is rendered cannot be compelled to contribute to or indemnify another concurrent wrongdoer.
Liability of Several Tortfeasors for Distinct Damages
In cases where several tortfeasors cause distinct damage, they fall outside the purview of proportionate liability legislation. Each tortfeasor is responsible solely for the particular harm they caused. For example, if D1 injures the plaintiff's arm and D2 injures the plaintiff's leg, D1 is only liable for the arm while D2 is liable only for the leg. Nevertheless, both may simultaneously be solidarily liable for non-separate damages—such as loss of earnings or psychological harm.
Contribution Among Tortfeasors
Concept of Contribution
When one defendant shares solidary liability for the entire damage a plaintiff sustains, they are entitled to seek monetary contribution from any other involved parties, whether they are joint or several tortfeasors. The right to contribution is exclusive to solidary liabilities and not applicable for defined proportions of a plaintiff’s damages.
Historical Context and Legislative Changes
Previously, the common law doctrine encapsulated in Merryweather v Nixan restricted any tortfeasor’s ability to claim contributions from others. Recent legislation across Australian jurisdictions has rendered this doctrine obsolete, but variations still exist between jurisdictions.
Types of Contribution Provisions
The contribution provisions display two variations based on jurisdictions:
New South Wales, Queensland, Western Australia, and Tasmania - any liable tortfeasor can recover contributions from fellow tortfeasors responsible for the same harm or damage.
Australian Capital Territory, Northern Territory, South Australia, and Victoria - these jurisdictions refer to any person liable for harm being able to seek contributions from others who are similarly liable. This introduces nuances regarding assessment and eligibility for claims.
Criteria for Claiming Contributions
Eligible Parties: Those able to claim contributions must possess a liability firmly established through a court judgment or through settlement, even if said liability was agreed outside judicial oversight. A claimant must demonstrate that they would have been liable in court for recovery of contributions to be valid, irrespective of an admission of guilt during a settlement.
Potential Defendants: Contribution claims may be instituted against any concurrent tortfeasor against whom a judgment has previously been rendered. This framework excludes those who are not ultimately liable to the injured plaintiff.
Assessment of Contributions
Courts wield significant discretion in determining contributions deemed just and equitable which can span from no recovery whatsoever to full indemnification. In standard scenarios involving negligent defendants, determining the appropriate contribution will necessitate analyzing both the comparative blameworthiness of each party and the causal effectiveness of their actions in causing the harm.
Review Questions
What is the distinction between joint and several tortfeasors?
How do concurrent liability, solidary liability, and proportionate liability differ?
What constitutes the concept of contribution among tortfeasors?