Professional Liability Guide

CHAPTER 3 – DEFENCES

In Queensland, an apportionable claim cannot be one which has been made by a ‘ consumer ’. 199 In New South Wales, claims for breach of statutory warranty are excluded. 200

Where a claim is apportionable in part only, the part that is not apportionable will not attract the operation of the proportionate liability provisions and will, instead, be determined in accordance with the relevant principles at common law and under statute. Consequences of being a ‘concurrent wrongdoer’ Most jurisdictions require the defendant to help the plaintiff identify all other concurrent wrongdoers and the circumstances giving rise to their involvement in the loss. 201 A failure by a concurrent wrongdoer to comply may have cost consequences and make it severally liable for any award of damages. 202 In Queensland, a failure by a plaintiff to join other concurrent wrongdoers, as identified by a defendant, may also have cost consequences. 203 The Queensland scheme also allows the court to make adverse cost orders against any concurrent wrongdoer where it alerts the plaintiff to the existence of another concurrent wrongdoer, the plaintiff joins that party, and the court finds that party not to be liable to the claim. 204 While the schemes are silent on who bears the onus of proof in establishing the concurrent wrongdoers, Ann Lyons J in Geldard v Mobbs found that the Queensland scheme did not change the general rule that a defendant bears the onus of pleading and proving a defence. Therefore, once the plaintiff has met its burden and established that a defendant has caused it to suffer a loss, it is a matter for the defendant to prove that the damages should be reduced because there are concurrent wrongdoers (whose independent acts or omissions have caused the loss or damage) who are liable to the plaintiff. Discharging such an onus of proof can be difficult for a defendant. A defendant may be obliged to lead evidence at trial regarding the liability of other defendants who may no longer be directly involved in the hearing due to brokering a prior settlement with the plaintiff. 205 Contrary to the common law position, concurrent wrongdoers against whom judgment has been given cannot seek contribution or indemnity from each other. 206 Therefore, in a matter involving an apportionable claim, it is vital for defendants to plead proportionate liability during the proceeding. Determining liability The wording of each scheme’s provision concerning the assessment of a concurrent wrongdoer’s proportional share of the loss is similar, varying between ‘ just and equitable ’, 207 ‘ just ’, 208 and ‘ fair and equitable ’. 209 199 CLA (Qld) s 28(3)(b). 200 CLA (NSW) s 34(3A). 201 CLA (Tas) s 43D(1); CLA (WA) s 5AKA(1); LRA (SA) s 10(1); CLA (NSW) s 35A(1); PLA (NT) s 12(1)(a) and (b); CLA (ACT) s 107G(1)(a) and (b); CLA (Qld) s 32(2) and (3). 202 CLA (Tas) s 43D(1) and (2); CLA (WA) s 5AKA(1) and (2); LRA (SA) s 10(2) and (3); CLA (NSW) s 35A(1) and (2); PLA (NT) s 12; CLA (ACT) s 107G(1), (2) and (3); CLA (Qld) s 32(5). 203 CLA (Qld) s 32(1), (4) and (5). 204 CLA (Qld) s 32(6). 205 As was the case in GEJ & MA v Geldard v Mobbs (No 2) [2012] 1 Qd R 120. 206 CLA (Qld) s 32A. 207 CLA (Qld) s 31(1)(a). 208 CLA (Tas) s 43B(1)(a); CLA (WA) s 5AK(1)(a); CLA (NSW) s 35(1)(a); PLA (NT) s 13(1)(a); CLA (ACT) s 107F(1)(a); ASIC Act s 12GR(1)(a); Corporations Act 2001 (Cth) s 1041N(1)(a); CCA s 87CD(1)(a). 209 LRA (SA) s 8(2).

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