Professional Liability Guide

PROFESSIONAL LIABILITY GUIDE

The courts take a holistic approach in considering the comparative wrongdoing of all concurrent wrongdoers, including those who haven’t been joined to the proceedings by the plaintiff.

Podrebersek v Australian Iron & Steel Pty Ltd 210 provides a starting point for considering how the courts approach the issue of determining apportionment between concurrent wrongdoers. The decision concerns the principles to be applied in the context of contributory negligence (apportioning responsibility between a plaintiff and defendant), although they have been held to apply whenever the issue of apportionment between parties arises, including under the Queensland, 211 New South Wales 212 and Victorian 213 proportionate liability schemes, and under the TPA. 214 The High Court in Podrebersek said that a finding on a question of apportionment is a finding upon ‘a question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds. ’ 215 ‘[t]he making of an apportionment … involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42–49 and Broadhurst v Millman [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.’ 216 The High Court went on to say that: ‘The approach to be adopted … requires a comparison both of culpability and the relative importance of the acts of the parties in causing the injury, requiring the whole of the relevant conduct of each of the negligent parties to be subject to comparative examination. The tasks involve matters of proportion, balance and relative emphasis and are, in this regard, similar to the exercise of a broad discretion.’ 217 The Victorian Supreme Court applied these principles in Sali & Ors v Metzke & Allen , 218 a professional negligence claim against an accountant following a business failure. The Court compared the respective culpabilities of what it described as the ‘ active wrongdoer ’, who was primarily responsible for the failure (to which it apportioned 70% of the liability), with that of the defendant accountants, who were not the active cause of the failure but could have taken steps to prevent it from occurring (to which it apportioned the 30% balance). In Alcoa Portland Aluminium Pty Ltd v Husson, Chernov JA stated that:

210 (1985) 59 ALR 529. 211 Geju Pty Ltd v Central Highlands Regional Council [2016] QSC 279, [164]. This principle remained unaffected on appeal in Central Highlands Regional Council v Geju Pty Ltd [2018] 3 Qd R 550. 212 Av8 Air Charter Pty Ltd v Sydney Helicopters Pty Ltd [2014] NSWCA 46 [125]. 213 Iannello v BAE Automation and Electrical Services Pty Ltd [2008] VSC 544 [71]; applied by Gregory

Spencer Ward t/as Ward’s Stock Transport v Watson [2021] WASCA 44. 214 Orchard Holdings Pty Ltd v Paxhill Pty Ltd [2012] WASC 271 [342]–[343]. 215 (1985) 59 ALR 529, 532. 216 Ibid 532–533. 217 (2007) 18 VR 112, 136. 218 [2009] VSC 48.

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