I have a nascent theory that the introduction of proportionate liability has made people think more about shifting blame, and doing so in more creative ways. Personal injury claims are not apportionable, though. The old law of contribution governs personal injury cases. In Tweed Shire Council v Howarth  NSWCA 103, a little girl sued the local council for compensation for injury she suffered when she wandered away from the gaze of her father and fell into a pond. Her dad and her grand-dad were laying turf at the family’s investment property. She sued through a tutor who was not her father, alleging a breach of a duty in the Council to fence off bodies of water within its territory. The Council sought leave to join the father as what we would call a third party and claim contribution, on the basis that the father breached a duty of care towards his child which also caused the injury. The content of the duty was said to require him to keep his eye on her so she did not wander off and fall into a pond. The trial judge dismissed the application. The Court of Appeal (Justice of Appeal Giles with whom Justices of Appeal Ipp and Basten agreed) allowed the Council’s appeal.
Suing the Council is one thing, but prosecuting a suit which requires a determination of your dad’s duty of care to you is another. Maybe it will all be a bit much for the family, and the thing will get resolved. I suppose the father will be checking the wording of the general liability cover in any home and contents insurance policy the family might have first though. Can anyone feel what we Victorians would call a fourth party claim against the grandfather coming on? And a fifth party claim against the grandmother for losing the grandfather’s spectacles?
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- Pimply youth’s fraudster Father Christmas Avondale Heights outrage
- Here’s a copy of the Vic Wrongs Act 1958’s proportionate liability provisions
- Solis who fail to tell client about settlement offer immune from suit
- The finality of the proceeding stayed pending further order