Professional Liability Guide

PROFESSIONAL LIABILITY GUIDE

The High Court confirmed that the proportionate liability regime permits a wrongdoer’s acts to be independent of another wrongdoer but cause the same loss. On that basis, the High Court held that the same damage was caused by Hunt & Hunt, who drafted the securities, and by the fraudsters, who procured the borrowed funds. The plurality (French CJ, Hayne and Kiefel JJ) noted: ‘The law’s recognition that concurrent and successive tortious acts may each be a cause of a plaintiff’s loss or damage is reflected in the proposition that a plaintiff must establish that his or her loss or damage is “caused or materially contributed to” by a defendant’s wrongful conduct. It is enough for liability that a wrongdoer’s conduct be one cause. The relevant enquiry is whether the particular contravention was a cause, in the sense that it materially contributed to the loss. Material contribution has been said to require only that the act or omission of a wrongdoer play some part in contributing to the loss.’ 191 On that basis, the Supreme Court’s apportionment of 12.5% to Hunt & Hunt was reinstated, with the fraudsters bearing 72.5% and 15% liability. In the Queensland case of GEJ & MA Geldard Pty Ltd v Mobbs & Ors (No 2) , 192 Ann Lyons J emphasised the importance of the words ‘ independently of each other’ in determining whether a party is a concurrent wrongdoer; that phrase, properly construed, meant that if parties had jointly caused a loss, they were not concurrent wrongdoers. For example, the liability of a negligent employee and a vicariously liable employer is ‘ joint ’ and not ‘ independent ’. This reasoning was upheld on appeal. 193 This was reinforced in another Queensland decision, Hobbs Haulage Pty Ltd v Zupps Southside Pty Ltd & Anor . 194 In that case, the defendant (Zupps) engaged a subcontractor (Trakka Pty Ltd) to perform modifications to a truck for the plaintiff (Hobbs Haulage) and alleged that it (Zupps) and Trakka were concurrent wrongdoers in response to allegations that the modifications were defective. The Court ordered the defence of proportionate liability to be struck out because the subcontractor was not independently responsible for the plaintiff’s damage, so the same acts or omissions by the defendant and the subcontractor caused the plaintiff’s loss. As the conduct was the same, the parties could not be concurrent wrongdoers.

A similar finding was made regarding the conduct of a vendor and the vendor’s agent in Hadgelias Holdings and Waight v Seirlis . 195

Whether a concurrent wrongdoer ‘ caused ’ the plaintiff’s loss or damage is a question of fact. 196

Exclusions All proportionate liability schemes exclude claims arising out of personal injury.

Claims against wrongdoers who fraudulently or intentionally cause the plaintiff’s loss are excluded either expressly 197 or by the relevant definitions of ‘ apportionable claim ’. 198

191 Ibid 635–636. 192 [2012] 1 Qd R 120. 193 Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319.

194 [2013] QSC 319. 195 [2014] QCA 325. 196 Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613, 635. 197 CLA (Qld) s 32D and 32E; Wrongs Act (Vic) s 24AM. 198 CLA (Tas) s 43A(6); CLA (WA) s 5AJA(2); LRA (SA) s 3(2); CLA (NSW) s 34A(2); PLA (NT) s 7(1); CLA (ACT) s 107E(2).

36

www.carternewell.com

Made with FlippingBook - Online magazine maker