Proportionate Liability – Fatal Accidents Claims
Do the proportionate liability provisions in Part 9A of the Civil Liability Act 2002 apply to claims pursuant to the Fatal Accidents Act 1934? This question is yet to be resolved judicially and practitioners need to be aware the provisions may potentially apply.
In so far as is relevant I refer to the following provisions of the Civil Liability Act 2002:-
PART 9A – Proportionate Liability
43A. Application of Part 9A
[Section 43A Inserted by No. 2 of 2005, s. 5, Applied:01 Jun 2005]
(1) This Part applies to the following claims (“apportionable claims”):
(a) a claim for economic loss … in an action for damages (whether in contract, tort or otherwise) arising from a failure to take reasonable care (but not including any claim arising out of personal injury); …
(2) In this Part –
“concurrent wrongdoer”, in relation to a claim, means a person who is one of two or more persons whose act or omission caused, independently of each other or jointly, the damage or loss that is the subject of the claim;
(3) For the purpose of this Part, apportionable claims are limited to those claims specified in subsection (1). …
(7) The liability of any other concurrent wrongdoer who is not an excluded concurrent wrongdoer is to be determined in accordance with the provisions of this Part.
43B. Proportionate liability for apportionable claims
[Section 43B Inserted by No. 2 of 2005, s. 5, Applied:01 Jun 2005]
(1) In any proceedings involving an apportionable claim –
(a) 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 damage or loss claimed that the court considers just, having regard to the extent of the defendant’s responsibility for the damage or loss; and
(b) the court is not to give judgment against the defendant for more than that amount.
(2) If the proceedings involve both an apportionable claim and a claim that is not an apportionable claim –
(a) liability for the apportionable claim is to be determined in accordance with the provisions of this Part; and
(b) 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 proceedings –
(b) the court is to have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceedings.
(4) This section applies in proceedings involving an apportionable claim whether or not all concurrent wrongdoers are parties to the proceedings.
(5) A reference in this Part to a defendant in proceedings includes any person joined as a defendant or other party in the proceedings (except as a plaintiff) whether joined under this Part, under rules of court or otherwise.
43F. Joining non-party concurrent wrongdoer in action
[Section 43F Inserted by No. 2 of 2005, s. 5, Applied:01 Jun 2005]
(1) The court may give leave for any one or more persons to be joined as defendants in proceedings involving an apportionable claim.
Prior to the enactment of the above provisions concurrent tortfeasors were each answerable/liable in full for the whole damage caused to a plaintiff. Therefore, it was only necessary to sue one of several concurrent tortfeasors to recover a judgment for the entirety of the damages sustained. That is, each concurrent tortfeasor was jointly and severally liable – referred to as solidary liability. Now the situation is markedly different if the proportionate liability provisions apply in a given case.
There has been only limited judicial pronouncement/interpretation of the proportionate liability provisions since the enactment of uniform legislation throughout Australia, none of which assists a resolution of the issue raised in this article. The textbooks which I have considered express differing views as to the interpretation and application of the provisions, in so far as those provisions may arguably apply to claims pursuant to the Fatal Accidents Act 1934.
Villa the author of the text Annotated Civil Liability Act 2002 (NSW), referring to the equivalent NSW provision to section 43A(1) of the Civil Liability Act 2002 (Tas) states, at 4.34.040, that the legislation “ … provides that a claim for damages arising out of personal injuries is not an apportionable claim. … Curiously, the exclusion is limited to claims arising out of personal injury, and does not exclude claims for damages arising out of death. The death of a person is not an injury at law.” References are cited in the footnote in support of the latter observation. The author then refers generically to an action instituted under the NSW equivalent to the Fatal Accidents Act 1934 (Tas) and goes on to state : “This is clearly a ‘claim for economic loss’ and therefore strictly falls within the terms of section … – referring to the NSW equivalent to section 43A(1) of the Civil Liability Act 2002 (Tas) – … this would be a curious result, and the reference to ‘personal injury’ should be read to include the death of a person.”
However, the concluded suggestion by Villa referred to in the preceding paragraph may not find favour judicially. The Civil Liability Act 2002 (Tas) specifically and consistently distinguishes between personal injury and death. For example, section 3B(1)(a) and (b), the title for Part 7 and section 24. Further, the definition of “personal injury” in section 3, whilst inclusive, does not make reference to death. This latter observation contrasts, for example, with section 5A(4) of the Limitation Act 1974 (Tas).
On the other hand, I disagree with Villa when he states that fatality claims are claims for economic loss and therefore potentially claims to which the proportionate liability provisions may apply. A claim under the Fatal Accidents Act 1934, it is accepted, may include components for economic loss (for example, funeral expenses), but generally fatality claims cannot be categorised as claims for economic loss. For example, in most fatality claims there will often be claims for loss of domestic and care services. Those claims are predicated, not on the basis of economic loss, but for the loss of services formerly provided by the deceased prior to his/her death and which it is anticipated he/she would have continued to provide in the future, but for his/her untimely death, whether or not the services have been, or will be replaced and, if replaced, whether or not the procurement of those replacement services has resulted in, or will result in, financial expense. In my opinion, those components of the claim cannot therefore be categorised as claims for economic loss.
Similarly, it seems clear that a claim for damages for personal injuries cannot generally be categorised as a claim for economic loss. For example, an available claim for domestic and care services, for which a need is demonstrated, at common law in order to be compensable is often not dependent upon financial loss or expense, as the need for those services is often met by family members or friends who have provided and will continue to provide those services on a gratuitous basis. Further, a claim for loss of earning capacity is not a claim for financial loss, but rather compensable as a capital loss of the capacity to earn. More obviously, a claim for pain and suffering and loss of amenities and enjoyment of life for which general damages are awarded is not a claim for economic loss.
The question arises therefore as to why the legislature, when enacting section 43A(1), considered it necessary to expressly exclude personal injury claims, as those claims are clearly not claims for economic loss as that expression is generally understood and are, in my opinion, excluded from the operation of the section in any event. Further, why does section 43A(1) specifically exclude personal injury claims and not death claims when neither, in my opinion, can be categorised generally as economic loss claims and, therefore, arguably are not caught by the section, in any event, even though not expressly excluded – as with fatality claims. Perhaps the answer lies in section 43B(2), which may be intended to relate not to an entire claim in a particular action, but to individual components. However, such an interpretation would be nonsensical when considering the entire proportionate liability provisions and, in individual cases, potentially logistically difficult to apply. To my mind, the legislature would not have intended this meaning, as it would be potentially farcical in its application in individual cases.
My comments and tentative conclusion reached in the preceding paragraphs find support in other texts where the authors deal with the proportionate liability provisions. Balkan and Davis Law of Torts 4th edition at 29.41 states: “The legislation is uniform in being limited to claims for purely economic loss or property damage – thereby excluding claims for damages arising from personal injury or death.” Further, Luntz Assessment of Damages for Personal Injury or Death : General Principles at 11.6 states : “The …Ipp Committee … recommended that : ‘In relation to claims for negligently caused personal injury or death, the doctrine of solidary liability should be retained and not replaced with a system of proportionate liability.’ This recommendation has been adhered to in the legislation that has since been introduced providing for proportionate liability on the part of multiple defendants in relation to economic loss and property damage, which does not apply to personal injury however caused.” Interestingly, it will be noted Luntz does not include the words or death in his final summation. The authors of Flemming Law of Torts 10th edition at 11.100 also assume the proportionate liability provisions apply only to “… claims for property damage and economic loss arising out of negligence …”.
Further, a Fact Sheet apparently made available to the Parliament in support of the Civil Liability Amendment (Proportionate Liability) Bill 2004 contains the statement : “The purpose of this is to introduce proportionate liability for damages for pure economic loss or property damage claims.” This document can be relied on as an extrinsic aid to interpretation: Acts Interpretation Act 1931 section 8B(3).
It is my view that the proportionate liability provisions should be interpreted so as not to apply to a claim for damages pursuant to the provisions of the Fatal Accidents Act 1934 as claims pursuant to this legislation are not claims for economic loss. However, this view may not be shared by others and argument to the contrary may be advanced in any given case. My conclusion as to the appropriate interpretation is by no means certain. Ideally, the legislature should amend section 43B(2) so as to put the issue beyond doubt, by including the words “or death” in the parenthesis part of section 43A(1)(a) so that the provision reads “…(but not including any claim arising out of personal injury or death)…” In the meantime, until the legislation is amended or the current provision interpreted judicially to exclude application to fatality claims, practitioners pursuing those claims on behalf of dependants need to be aware of the issue.
In a fatality claim if a Defendant pleads the proportionate liability provisions and/or obtains leave to join another party as a Third Party – section 43B(5) – the Court would then have to consider whether or not the proportionate liability provisions apply. If the Court were to conclude that the proportionate liability provisions apply and that liability should be apportioned as between each concurrent wrongdoer, the damages recoverable by the Plaintiff(s) would be reduced to the extent assessed as the % finding of culpability on the part of the Defendant.
Hence, a Plaintiff should carefully consider joining any potential concurrent wrongdoer as a Defendant to a proposed action in order to cover this potential outcome. On the other, hand to do so will involve the risk that, if a Defendant is found not to have been negligent, the Plaintiff would potentially be ordered to pay the costs incurred by the absolved Defendant in defending the action. Further, in those circumstances, a court may decline to make a Bullock or Sanderson order in favour of the Plaintiff with regard to those costs.
However, if a Defendant has initiated the involvement of another alleged concurrent wrongdoer, by joining that person as a Third Party, or by simply pleading in the Defence responsibility on the part of the alleged concurrent wrongdoer, providing time limitation permits, it would then be prudent for the Plaintiff to make application to join the alleged concurrent wrongdoer as a Defendant. In those circumstances, if the newly joined Defendant is absolved from liability, the fact that the Defendant found liable to the Plaintiff initiated the involvement of the absolved Defendant would be a relevant consideration and give support to an application to the Court by the Plaintiff for a Bullock or Sanderson order against the unsuccessful Defendant.