PART IVAA PROPORTIONATE LIABILITY
In this Part—
- ‘apportionable claim‘ means a claim to which this Part applies;
- ‘court‘ includes tribunal and, in relation to a claim for damages, means any court or tribunal by or before which the claim falls to be determined;
- ‘damages‘ includes any form of monetary compensation;
- ‘defendant‘ includes any person joined as a defendant or other party in the proceeding (except as a plaintiff) whether joined under this Part, under rules of court or otherwise;
- ‘injury‘ means personal or bodily injury and includes—
pre-natal injury; and
psychological or psychiatric injury; and
aggravation, acceleration or recurrence of an injury or disease.
Application of Part
24AF(1) This Part applies to—
a claim for economic loss or damage to property in an action for damages (whether in tort, in contract, under statute or otherwise) arising from a failure to take reasonable care; and
a claim for damages for a contravention of section 9 of the Fair Trading Act 1999.
(2) If a proceeding involves 2 or more apportionable claims arising out of different causes of action, liability for the apportionable claims is to be determined in accordance with this Part as if the claims were a single claim.
(3) A provision of this Part that gives protection from civil liability does not limit or otherwise affect any protection from liability given by any other provision of this Act or by another Act or law.
24AGWhat claims are excluded from this Part?
(1) This Part does not apply to claims arising out of an injury.
(2) Without limiting subsection (1), this Part does not apply to the following—
(a) a claim to which Part 3, 6 or 10 of the Transport Accident Act 1986 applies;
(b) a claim to which Part IV of the Accident Compensation Act 1985 applies;
(c) a claim in respect of an injury which entitles, or may entitle, a worker, or a dependant of a worker, within the meaning of the Workers Compensation Act 1958 to compensation under that Act;
(d) a claim for compensation under Part V of the Country Fire Authority Act 1958 or a claim for compensation under a compensation scheme established under the regulations made under that Act;
(e) an application for compensation under Part 4 of the Victoria State Emergency Service Act 2005;
(f) a claim for compensation under Part 6 of the Emergency Management Act 1986;
(g) an application for compensation under the Police Assistance Compensation Act 1968;
(h) an application for assistance under the Victims of Crime Assistance Act 1996;
(i) a complaint under the Equal Opportunity Act 1995;
(j) a claim for compensation under Part 8 of the Juries Act 2000 or Part VII of the Juries Act 1967;
(k) a claim for compensation under Division 6 of Part II of the Education Act 1958.
(3) This Part does not apply to claims in proceedings of a class that is excluded by the regulations from the operation of this Part.
24AHWho is a concurrent wrongdoer?
(1) A concurrent wrongdoer, in relation to a claim, is a person who is one of 2 or more persons whose acts or omissions caused, independently of each other or jointly, the loss or damage that is the subject of the claim
(2) For the purposes of this Part it does not matter that a concurrent wrongdoer is insolvent, is being wound up, has ceased to exist or has died.
24AIProportionate liability for apportionable claims
(1) In any proceeding involving an apportionable claim—
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 loss or damage claimed that the court considers just having regard to the extent of the defendant’s responsibility for the loss or damage; and
judgment must not be given against the defendant for more than that amount in relation to that claim.
(2) If the proceeding involves both an apportionable claim and a claim that is not an apportionable claim—
liability for the apportionable claim is to be determined in accordance with this Part; and
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 proceeding the court must not have regard to the comparative responsibility of any person who is not a party to the proceeding unless the person is not a party to the proceeding because the person is dead or, if the person is a corporation, the corporation has been wound-up.
24AJ Contribution not recoverable from defendant
Despite anything to the contrary in Part IV, 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 the damages recovered or recoverable from another concurrent wrongdoer in the same proceeding for the apportionable claim; and
(b) cannot be required to indemnify any such wrongdoer.
(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 loss or damage from bringing another action against any other concurrent wrongdoer for that loss or damage.
(2) However, in any proceeding 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 loss or damage, would result in the plaintiff receiving compensation for loss or damage that is greater than the loss or damage actually suffered by the plaintiff.
24ALJoining non-party concurrent wrongdoer in the action
(1) Subject to subsection (2), the court may give leave for any one or more persons who are concurrent wrongdoers in relation to an apportionable claim to be joined as defendants in a proceeding in relation to that claim.
(2) The court is not to give leave for the joinder of any person who was a party to any previously concluded proceeding in relation to the apportionable claim.
24AMWhat if a defendant is fraudulent?
Despite sections 24AI and 24AJ, a defendant in a proceeding in relation to an apportionable claim who is found liable for damages and against whom a finding of fraud is made is jointly and severally liable for the damages awarded against any other defendant in the proceeding.
24ANLiability for contributory negligence not affected
Nothing in this Part affects the operation of Part V or Division 7 of Part X.
24APPart not to affect other liability
Nothing in this Part—
prevents a person from being held vicariously liable for a proportion of any apportionable claim for which another person is liable; or
prevents a person from being held jointly and severally liable for the damages awarded against another person as agent of the person; or
prevents a partner from being held jointly and severally liable with another partner for that proportion of an apportionable claim for which the other partner is liable; or
prevents a court from awarding exemplary or punitive damages against a defendant in a proceeding; or
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.
(1) The Governor in Council may make regulations generally prescribing any matter or thing required or permitted by this Part to be prescribed or necessary to be prescribed to give effect to this Part.
(2) The regulations—
(a) may leave any matter to be determined by the Minister; and
(b) may apply, adopt or incorporate, wholly or partially or as amended by the regulations, any matter contained in any document as existing or in force—
from time to time; or
at a particular time.
This Part applies to proceedings that are commenced in a court on or after the commencement of section 3 of the Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003.