LAW REFORM (TORTFEASORS CONTRIBUTION, CONTRIBUTORY NEGLIGENCE, AND DIVISION OF CHATTELS) ACT of 1952

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1 649 TIlE LAW REFORM (TORTFEASORS CONTRIBUTION, CONTRIBUTORY NEGLIGENCE, AND DIVISION OF CHATTELS) ACT of Eliz. 2 No. 42 Amended by Law Reform (Husband and Wife) Act of 1968, No. 15 An Act to Amend the Law Relating to Proceedings against, and Contribution between, Tortfeasors, to Amend the Law Relating to Contributory Negligence, and to Amend the Law Relating to the Division of Chattels belonging to Persons Jointly or in Undivided Shares, and for purposes connected therewith [Assented to 4 December 1952] PART I-PRELIMINARY 1. Short title. This Act may be cited as "The Law Reform (Tortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act of 1952." 2. Commencement of Act. This Act shall come into operation on a date to be fixed by the Governor in Council by Proclamation published in the Gazette, which date is herein referred to as the commencement of this Act. Commenced 12 January 1953 (Proclamation: Gazette, 10 January 1953, p. 223). 3. Parts of Act. This Act is divided into Parts, as follows: PART I-PRELIMINARY; PART II-PROCEEDINGS AGAINST, AND CONTRIBUTION BETWEEN, TORTFEASORS; PART Ill-CONTRIBUTORY NEGLIGENCE; PART IV-DIVISION OF CHATTELS. 4. Interpretation. In this Act the following expressions shall have the meanings hereby respectively assigned to them, that is to say: "Court"-Means, in relation to any claim, the Court or arbitrator by or before whom the claim falls to be determined; "Damage"-Includes loss of life and personal injury; "Dependant"-Means any person for whose benefit an action could be brought under section twelve of "The Common Law Practice Acts, 1867 to 1940"; "Fault"-Means negligence, breach of statutory duty, or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence. Act referred to: Common Law Practice Act , title SUPREME COURT AND PRACTICE, Vol. 17, p. 191.

2 650 WRONGS Vol. 20 PART II-PROCEEDINGS AGAINST, AND CONTRIBUTION BETWEEN, TORTFEASORS 5. Proceedings against, and contribution between, joint and several tortfeasors. Where damage is suffered by any person as a result of a tort (whether a crime or not)- (a) Judgment recovered against any tortfeasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tortfeasor in respect of the same damage; (b) If more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered. or for the benefit of the estate, or of the wife, husband, parent, or child of that person, against tortfeasors liable in respect of the damage (whether as joint tortfeasors or otherwise) the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given; and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to eosts unless the Court is of opinion that there was reasonable ground for bringing the action; (c) Any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought. Paragraph (c) does not make available to a defendant tortfeasor in an action for contribution any time limitation which would have been available to him in an action of tort brought against him by the injured party. In other words, paragraph (c) should be read without the importation of any temporal element or as if the words "at any time" were present after the words "if sued". See Brambles Constructions Pty. Ltd. v. Helmr!rs (1966). 114 C.L.R See also George Wimpey & Co. Ltd. v. British Overseas Airways Corporation. [1955] A.C. 169; Morgan v. Ashmore, Benson, Pease & Co. Ltd., [1953] 1 All E.R. 328; Guyder v. Lipscombe, [1966] Qd. R. 24. The words "any tortfeasor liable in respect of that damage", in paragraph (c), refer to a tortfeasor whose liability has been ascertained, and this includes ascertainment by judgment. See Bitumen and Oil Refineries (Australia) Ltd. v. Commissioner jor Government Transport (1955), 92 C.L.R On the nature of the cause of action given by this section see the judgments of Fullager, J., and Taylor, J., in Unsworth v. Commissioner for Railways and King, [1958] Qd. R The defendant in an action of negligence may in a proper case recover contribution from the Commissioner for Railways and may obtain leave to issue third-party notice. So held in Ward v. Blue and Red Buses Ltd., [1956] St. R. Qd The meaning and effect of the similar section-so 25 (c)-of the Wrongs Act of South Australia were considered and discussed by the Supreme Court (in banco) of that State in Hall V. Bonnett, [1956] S.A.S.R. 10. In Shield V. Farsley Motors Ply. Ltd. and Barnes, [1954] Q.W.N. 7, an action of negligence, the defendants were given leave to issue a third-party notice upon the Brisbane City Council claiming contribution following Bell V. D. & C. R. Baker and Andrews, [1953] St. R. Qd. 303.

3 LAW REFORM (fortfeasors CONT., ETC.) ACT ss See also the judgment of the Full Court of Victoria in Walter H. Wright Pty. Ltd. v. Commonwealth, [1958] V.R. 318; [1958] A.L.R Failure to take a particular precaution before an accident is not evidence of negligence at,the time of the accident. It may however be evidence of some practical step that could have been taken to prevent such an accident or of a step which it was practicable to take to prevent it. So held by Townley, J., in Oulton v. Brisbane Stevedoring and Wool-dumping Co. Pty. Ltd., [1958] Q.W.N. 35. Compare and contrast Herbertson v. Lambert, [1958] Qd. R 294, where the Full Court in dismissing the plaintiff widow's appeal against the trial judge's finding of contributory negligence against her husband in an action of negligence, held that if H. did not look at and appreciate the situation as a reasonable man in full possession of his faculties would have done, he did not take reasonable care for his safety and that if he found himself in a dilemma it was one of his own making and due to his own negligence. In Smith and Smith v. Brown and Moss and State Assurance Co. Ltd., [19601 Q.W.N. 4, a defendant who was the registered owner of a motor vehicle involved in a collision having consented to judgment in favour of the plaintiffs, claimed and r~covered one hundred per cent contribution against another defendant, the driver of the vehicle. As to the right of a defendant to an action brought by a child for damages for negligence, to claim contribution from the parents for their negligence in supervising and controlling the child, see Rogers v. Rawlings, [1969] Qd. R. 262; Cameron v. Commissioner for Railways, [1964] Qd. R 480; Collett v. Hutchins, [[964] Qd. R As to third-party procedure, and proceedings between defendants for contribution, see RS.C. (1900), Order 17, title SUPREME COURT AND PRACTICE, Vol. 18. A master may recover indemnity from his servant whose conduct (intentionally wanton, or negligent) has caused the plaintiff's damage. See Lister v. Romford lee Co., [1957] A.C. 555; Ryan v. Fildes, [1938] 3 All E.R. 517; Semtex Ltd. v. Gladstone, [1954] 2 All E.R. 206; Davenport v. Commissioner for Railways (1953), 53 S.R.(N.S.W.) 552. As to apportionment between tortfeasors where one is the statutory principal and the other the common law principal of the negligent agent, see Soblusky v. Egan, [1960] Qd. R Amoullt of contribution and power of the Court. In any proceedings for contribution under this Part of this Act the amount of the contribution recoverable from any person shall be such as may be found by the Court to be just and equitable having regard to the extent of that person's responsibility for the damage; and the Court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity. The fact that a person is made vicariously liable under s. 3 (2) of the Motor Vehicles Insurance Act (title TRAFFIC, Vol. 19, p. 151) does not remove him from the category of a tortfeasor within this section, Soblusky v. Egan, [1960] Qd. R As to an application to serve a third party notice outside the jurisdiction, see Gilchrist v. Dean, [19601 V.R [Repealed] Repealed by Law Reform (Husband and Wife) Act of 1968, No. 15, s. 5, Sch. The Schedule to the Act of 1968, No. 15, provides inter alia as follows:- "Section seven is repealed but notwithstanding the repeal of that section the provisions of the said section seven shall continue too apply to and in relation to a claim for contribution where the act or omission giving rise to the claim occurred prior to the coming into operation of "The Law Reform (Husband and Wife) Act of 1968" and for the purposes of such a claim for contribution and any liability arising out of such a claim the said section seven shall be deemed to remain in full force."

4 652 WRONGS Vol Construction for the purposes of Part II. For the purposes of this Part of this Act- (a) The expressions "parent" and "child" shall have the same meanings as they have for the purposes of "The Common Law Practice Acts, 1867 to 1940"; and (b) The reference in this Part of this Act to "the judgment first given" shall, in a case where that judgment is reversed on appeal, be construed as a reference to the judgment first given which is not so reversed and, in a case where a judgment is varied on appeal, be construed as a reference to that judgment as so varied. Act referred to: Common Law Practice Act , title SUPREME COURT AND PRACTICE, Vol. 17, p Savings. Nothing in this Part of this Act shall- (a) Apply with respect to any tort committed before the commencement of this Act; or (b) Affect any criminal prosecution against any person in respect of any wrongful act; or ( c) Except as provided in section seven of this Act, render enforceable any agreement for indemnity which would not have been enforceable if this Act had not been passed. PART III-CONTRIBUTORY NEGLIGENCE 10. Apportionment of liability in case of contribntory negligence. (1 ) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damage: Provided that- (a) This subsection shall not operate to defeat any defence arising under a contract; (b) Where any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of this subsection shall not exceed the maximum limit so applicable. (2) Where damages are recoverable by any person by virtue of subsection one of this section subject to such reduction as is therein mentioned, the Court shall find and record the total damages which would have been recoverable if the claimant had not been at fault. (3) Part II of this Act shall apply in any case where two or more persons are liable or would, if they had all been sued, be liable by virtue of subsection one of this section in respect of the damage suffered by any person. ( 4) Where any person dies as the result partly of his own fault and partly of the fault of any other person or persons, and accordingly if an action were brought for the benefit of the estate under section 15D of

5 LAW REFO&M (TORTFEASORS CONT., ETC.) ACT ss "The Common Law Practice Acts, 1867 to 1940," the damages recoverable would be reduced under subsection one of this section, any damages recoverable in an action brought for the benefit of the dependants of that person under section twelve of the said "The Common Law Practice Acts, 1867 to 1940," shall be reduced to a proportionate extent. (5) Where, in any case to which subsection one of this section applies, one of the persons at fault avoids liability to any other such person or his personal representative by pleading the "Statute of Frauds and Limitations of 1867," or any other enactment limiting the time within which proceedings may be taken, he shall not be entitled to recover any damages or contributions from that other person or representative by virtue of the said subsection. (6) Where any case to which subsection one of this section applies is tried with a jury, the jury shall determine the total damages which would have been recoverable if the claimant had not been at fault and the extent to which those damages are to be reduced. Acts referred to: Common Law Practice Act , title SUPREME COURT AND PRACTICE, Vol. 17, p. 19l. Statute of Frauds and Umitations of 1867, title FRAUDS, Vol. 6, p The corresponding section was interpreted by the Full Court of Victoria in Winter v. Bennett, [1956] V.L.R. 612; [1957] A.L.R. 15, which decided inter alia (1) that, where it is found that the plaintiff's "own fault" is a real and substantial cause of the damage which he suffered, the doctrine of the last chance bas no application; (2) that in determining the apportionment of liability between plaintiff and defendant who both are in fault tbe principles applicable in Admiralty jurisdiction are to be applied (Marvin Sigurdson v. British Columbia Electric Railway Co. Ltd., [1953] A.C. 291, and Stapley v. Gypsum Mines Ltd., [1953] A.C. 663, followed); and (3) that it is only in the most exceptional cases that an apportionment of liability between plaintiff and defendant in collision cases will be reviewed on appeal, British Fame v. Macgregor, [1943] A.C. 197, approved. The Full Court set aside the verdict and ordered a new trial. For the principles on wbich an appellate court should approach a trial judge's findings of fact, and particularly a finding that a party has or has not been negligent, see Edwards v. Noble (1971), 45 A.L.J.R For an illustration of the blame to be apportioned, on a balance of probabilities, where the parties are joint tortfeasors, see the judgments of the Court of Appeal in Clarke v. E. R. Wright & Son, [1957] 3 All E.R A husband who sues for damages caused to bim by reason of injuries negligently inflicted on his wife sues in his own right, deriving his cause of action not from his wife but from his marriage, and the fact that the wife was guilty of contributory negligence does not cause any reduction of his damages. See Porcheddu v. Hogan, [1965] Q.W.N. 7. Where the jury has found negligence on the part of the plaintiff and defendant and such finding is not disputed and the verdict is not vitiated by misdirection or otherwise, an appellate court will not interfere with the jury's apportionment of the plaintiff's total loss and damage which the plaintiff and defendant respectively should bear unless it is such that no reasonable jury could have reached it. See Zoukra v. Lowenstern, [1958] V.R For an illustration of the practice governing the position of parties in an action on behalf of the widow and children of the victim under similar legislation, see Moffatt v. Hope, [1958] V.R In that case the claim was compromised, but upon application for the court's approval of the compromise the plaintiff sought leave to amend the pleadings by striking out all reference to the two children, so that the widow would receive the full amount of the settlement for herself and the children would be admitted to share in an award made by the Workers'

6 654 WRONGS Vol. 20 Compensation Board in favour of another child. The defendant not consenting, Pape, J., refused leave to amend, ruled that the proper procedure in the circumstances was by summons and then approved the compromise. For an example of employer defendants' vicarious liability for negligence of a servant whose negligence resulted in the servant's own death and in injury to a fellow servant, see Harvey v. R. G. O'Dell Ltd., [1958] 1 All E.R For an example of reduction of damages in accordance with the requirements of a corresponding section, see Synnott v. ROllzio (1955), 57 W.A.L.R. 77. An illustration of the state of the law before this Act came into force may be had from the decision of the Full Court in Milanovic v. Cavanaugh, [1957] St. R. Qd (1) (b), (6) The initial assessment of "damages recoverable" is to be made without any regard to the existence of any statutory limitation as to the amount of which the defendant may ultimately take advantage, Unsworth v. Commissioner for Railways and King, [1958] Qd. R. 528 (H.C.A.). For an example of apportionment of blame between the parties in a collision between motor cars, see Middleton v. Freier, [1958] Qd. R See also Creely v. Banks Pty. Ltd., [1958] Q.W.N. 34, and James v. McCarthy, [1958] Q.W.N. 32. See Mitchell v. Clancy, [1961] A.L.R. 299; Eichsteadt v. Lahrs, [1960] Qd. R. 487; Mitchell v. Clancy, [1960] Qd. R As to the liability of a child for contributory negligence see Griffiths v. Doolan, [1959] Qd. R Provisions as to workers and employers. ( 1) Where, within the time limited by "The Workers' Compensation Acts, 1916 to 1952," for making application for compensation under those Acts, an action is brought to recover damages independently of the said Acts in respect of an injury giving rise to a claim for such compensation, and it is determined in that action that- (a) Damages are recoverable independently of the said Acts subject to such reduction as is mentioned in subsection one of section ten of this Act; and (b) There is a liability to pay compensation under the said Acts, subclause one of clause twenty-three of the Schedule to the said Acts (which enables the Court, on the dismissal of an action to recover damages independently of the said Acts, to assess and award compensation under the said Acts) shall apply in all respects as if the action had been dismissed, and, if the claimant chooses to have compensation assessed and awarded in accordance with the said subclause one of clause twentythree, no damages shall be recoverable in the said action. (2) Where a worker or his dependant has recovered compensation under "The Workers' Compensation Acts, 1916 to 1952," in respect of an injury caused under circumstances which would give a right to recover reduced damages in respect thereof by virtue of section ten of this Act from some person other than the employer (hereinafter referred to as "the third party"), any right conferred by clause twenty-four of the Schedule to the said Acts on the Insurance Commissioner to be indemnified by the third party shall be limited to a right to be indemnified in respect of such part only of the compensation recovered by the worker or his dependant as bears to the total amount of compensation so recovered the same proportion as the said reduced damages bear to the total damages which would have been recoverable if the worker had not been at fault. Act referred to: Workers' Compensation Acts, 1916 to 1966, title LABOUR, Vol. 8, p. 757.

7 LAW REFOR:M (TORTFEASORS CONT., ETC.) ACT ss Saving. Part III of this Act shall not apply to any case where the acts or omissions giving rise to the claim occurred before the commencement of this Act. PART IV-DIVISION OF CHATTELS 13. Power to direct division of chattels. Where any chattels belong to persons jointly or in undivided shares, the persons interested to the extent of a moiety or upwards may apply to the Supreme Court for an order for division of the chattels or any of them, according to a valuation or otherwise, and the Supreme Court or a Judge thereof may make such order and give any consequential directions as it or he thinks fit. For the purpose of founding an application under this section co-ownership is assumed as not being in dispute. Where it is disputed and the dispute involves a material issue the court should not entertain the application, but should leave it to the applicant to establish his or her title in a suit brought for that purpose, Re Catley, [1955] St. R. Qd. 388, where Jeffriess, AJ., followed and applied Re Bludhorne and the Conveyancing Act (1948), 65 W.N.(N.S.W.) 238, and Re Watts, (1951) 68 W.N.(N.S.W.) 238. S. G. REID. Government Printer, Brisbane

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