Proportionate Liability Act 2005 (NT)

NORTHERN TERRITORY OF AUSTRALIA

PROPORTIONATE LIABILITY ACT 2005

As in force at 1 January 2011

Table of provisions [if supportFields]><span style='mso-element:field-begin'></span><span style='mso-spacerun:yes'>&#160;</span>TOC \o &#34;1-9&#34; <span style='mso-element: field-separator'></span><![endif] — Preliminary matters1 — Short title2 — Commencement3 — Definitions4 — Apportionable claims to which Act applies5 — Act binds CrownPart 2 — Proportionate liabilityDivision 1 — Preliminary matters6 — Concurrent wrongdoers7 — No apportionment for loss caused intentionally or fraudulentlyDivision 2 — General provisions for proceedings8 — Determination as single claim if more than one cause of action9 — Determination of apportionable claim and other claim10 — No need for all concurrent wrongdoers to be parties11 — Joining concurrent wrongdoers as defendants12 — Costs order if failure to inform of concurrent wrongdoerDivision 3 — Determination of liability in apportionable claims13 — Determination of liability of concurrent wrongdoers14 — Other liability not affectedDivision 4 — After judgment given in proceedings15 — Concurrent wrongdoers not required to contribute or indemnify16 — Subsequent actionsPart 3 — Miscellaneous matters17 — RegulationsPart 4 — Repeal and transitional matters for Proportionate Liability Act 200518 — Repeal of apportionable liability provisions of 19 — Transitional mattersENDNOTES NORTHERN TERRITORY OF AUSTRALIA

NORTHERN TERRITORY OF AUSTRALIA

As in force at 1 January 2011

PROPORTIONATE LIABILITY ACT 2005

An Act to replace the common law rule that imposes joint and several liability for economic loss or damage to property caused by concurrent wrongdoers with rules that limit the liability of each concurrent wrongdoer to reflect the extent of the wrongdoer's responsibility for the loss or damage, and for related purposes

Part 1Preliminary matters 1Short title

This Act may be cited as the Proportionate Liability Act 2005.

2Commencement

This Act comes into operation on the date fixed by the Administrator by notice in the Gazette.

3Definitions

In this Act, unless the contrary intention appears:

apportionable claim means an apportionable claim to which this Act applies by virtue of section 4.

concurrent wrongdoer has the meaning in section 6(1).

court means the court, tribunal or other statutory body determining a proceeding.

damages includes any form of monetary compensation for loss or damage.

defendant includes any person joined as a defendant in a proceeding, whether joined under this Act or otherwise.

economic loss does not include economic loss resulting from a personal injury.

loss or damage means economic loss or damage to property.

proceeding means a proceeding involving an apportionable claim.

4Apportionable claims to which Act applies

• (1)

  This Act applies in relation to an apportionable claim if the loss or damage that is the subject of the claim occurs wholly or partly after the commencement of this Act.

• (2)

  An apportionable claim is:

  • (a)

    a claim for damages (whether in tort, in contract, under a statute or otherwise) arising from a failure to take reasonable care; or

  • (b)

    a claim in respect of loss or damage arising from a contravention of section 18 of the Australian Consumer Law (NT).

• (3)

  However, none of the following is an apportionable claim:

  • (a)

    a claim arising from a personal injury;

  • (b)

    a claim arising from a contravention of Part 3-3 or 3-4 of the Australian Consumer Law (NT);

  • (c)

    a claim specified by the Regulations not to be an apportionable claim.

• (4)

  The Regulations may specify that a claim or class of claims is not an apportionable claim.

• (5)

  In this section:

  Australian Consumer Law (NT) means the provisions applying as a law of the Territory because of Part 4 of the Consumer Affairs and Fair Trading Act 1990.

5Act binds Crown

This Act binds the Crown in right of the Territory and, to the extent the legislative power of the Legislative Assembly permits, the Crown in all its other capacities.

Part 2Proportionate liabilityDivision 1Preliminary matters 6Concurrent wrongdoer

• (1)

  A concurrent wrongdoer is one of 2 or more persons whose acts or omissions caused (either jointly or independently) the loss or damage that is the subject of a claim for damages.

• (2)

  In applying this Part to an apportionable claim, it is immaterial that a concurrent wrongdoer is insolvent, is being wound up, has ceased to exist or has died.

7No apportionment for loss caused intentionally or fraudulently

• (1)

  This section applies to a concurrent wrongdoer (the excluded concurrent wrongdoer) who intended to cause, or fraudulently caused, the loss or damage that is the subject of an apportionable claim.

• (2)

  This Part does not limit the liability of the excluded concurrent wrongdoer for that loss or damage.

• (3)

  The liability of the excluded concurrent wrongdoer must be determined in accordance with the legal rules that, apart from this Part, are relevant.

• (4)

  The liability of any other concurrent wrongdoer must be determined in accordance with this Part.

Division 2General provisions for proceedings 8Determination as single claim if more than one cause of action

If a proceeding involves 2 or more apportionable claims in respect of the same loss or damage arising out of different causes of action, liability for the loss or damage must be determined in accordance with this Part as if the claims were a single claim.

9Determination of apportionable claim and other claim

If a proceeding involves both an apportionable claim and a claim that is not an apportionable claim:

• (a)

  liability for the loss or damage that is the subject of the apportionable claim must be determined in accordance with this Part; and

• (b)

  liability for the loss or damage that is the subject of the other claim must be determined in accordance with the legal rules that, apart from this Part, are relevant to that claim.

10No need for all concurrent wrongdoers to be parties

This Part applies in relation to a proceeding whether or not all concurrent wrongdoers are parties to the proceeding.

11Joining concurrent wrongdoers as defendants

• (1)

  The court may give leave for any one or more persons who are (or may be) concurrent wrongdoers in relation to an apportionable claim to be joined as defendants in the proceeding involving that claim.

• (2)

  The court must not give leave for the joinder of a person who was a party to any previously concluded proceeding in respect of that apportionable claim.

12Costs order if failure to inform of concurrent wrongdoer

• (1)

  This section applies if:

  • (a)

    a defendant in a proceeding has reasonable grounds to believe that another person may be a concurrent wrongdoer in relation to the apportionable claim;

  • (b)

    the defendant does not give the plaintiff, as soon as practicable, written notice of the information the defendant has about:

    • (i)

      the identity of the other person; and

    • (ii)

      the circumstances that may make the other person a concurrent wrongdoer; and

  • (c)

    the plaintiff unnecessarily incurs costs in the proceeding because the plaintiff does not know the other person may be a concurrent wrongdoer.

• (2)

  The court may order the defendant to pay all or any of those costs unnecessarily incurred.

• (3)

  The court may order that the costs payable by the defendant be assessed on the indemnity basis or otherwise.

Division 3Determination of liability in apportionable claims 13Determination of liability of concurrent wrongdoers

• (1)

  In a proceeding:

  • (a)

    the liability of a defendant who is a concurrent wrongdoer is limited to an amount reflecting the proportion of the loss or damage claimed that the court considers just having regard to the extent of the defendant’s responsibility for the loss or damage; and

  • (b)

    the court may give judgment against the defendant for not more than that amount.

• (2)

  In apportioning responsibility for loss or damage between the defendants:

  • (a)

    the court must exclude any proportion of the loss or damage in relation to which the plaintiff is contributorily negligent under any relevant law; and

  • (b)

    the court may have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceeding.

  14Other liability not affected

  This Act does not:

  • (a)

    prevent a person from being held vicariously liable for a proportion of an apportionable claim for which another person is liable;

  • (b)

    prevent a partner from being held jointly and severally liable with another partner for the proportion of an apportionable claim for which the other partner is liable; or

  • (c)

    affect the operation of any other Act to the extent that it imposes several liability on any person in respect of what would otherwise be an apportionable claim.

  Division 4After judgment given in proceedings  

15Concurrent wrongdoers not required to contribute or indemnify

• (1)

  A defendant in a proceeding against whom judgment is given under section 13 as a concurrent wrongdoer cannot be required:

  • (a)

    to contribute to the damages recovered or recoverable from another concurrent wrongdoer in the proceeding; or

  • (b)

    to indemnify any such wrongdoer.

• (2)

  Subsection (1) does not affect any agreement by the defendant to contribute to the damages recoverable from, or to indemnify, another concurrent wrongdoer in the proceeding.

16Subsequent actions

• (1)

  A plaintiff who has previously obtained judgment against a concurrent wrongdoer for an apportionable part of loss or damage is not prevented by this Part or any other law from bringing another action against any other concurrent wrongdoer for that loss or damage.

• (2)

  However, in a proceeding in respect of such an action, the plaintiff cannot recover an amount of damages that, having regard to any damages previously recovered by the plaintiff in respect of the loss or damage, would result in the plaintiff receiving compensation for loss or damage that is greater than the loss or damage actually sustained by the plaintiff.

Part 3Miscellaneous matters 17Regulations

The Administrator may make regulations, not inconsistent with this Act, prescribing matters:

• (a)

  required or permitted by this Act to be prescribed; or

• (b)

  necessary or convenient to be prescribed for carrying out or giving effect to this Act.

Part 4Repeal and transitional matters for Proportionate Liability Act 2005 18Repeal of apportionable liability provisions of

Sections 154 to 158 (inclusive) of the Building Act 1993 are repealed.

19Transitional matters

• (1)

  Despite the repeal of the sections of the Building Act 1993 referred to in section 18, those sections continue to apply after the commencement date in relation to an action referred to in section 154 of the former Building Act 1993:

  • (a)

    instituted before the commencement date; or

  • (b)

    instituted on or after the commencement date if the economic loss and rectification costs for which damages are claimed were incurred wholly before the commencement date.

• (2)

  In this section:

  commencement date means the date on which this Act comes into operation.

  former Building Act means the Building Act 1993 as in force immediately before the commencement date.

ENDNOTES

• 1

  KEY

Key to abbreviations

 

amd = amended od = order

app = appendix om = omitted

bl = by-law pt = Part

ch = Chapter r = regulation/rule

cl = clause rem = remainder

div = Division renum = renumbered

exp = expires/expired rep = repealed

f = forms s = section

Gaz = Gazette sch = Schedule

hdg = heading sdiv = Subdivision

ins = inserted SL = Subordinate Legislation

lt = long title sub = substituted

nc = not commenced

• 2

  LIST OF LEGISLATION

Proportionate Liability Act 2005 (Act No. 18, 2005)
Assent date	5 May 2005
Commenced	1 June 2005 (Gaz S16, 16 May 2005)
Consumer Affairs and Fair Trading Amendment (National Uniform Legislation) Act 2010 (Act No. 41, 2010)
Assent date	8 December 2010
Commenced	1 January 2011 (Gaz S71, 20 December 2010)

• 3

  GENERAL AMENDMENTS

General amendments of a formal nature (which are not referred to in the table of amendments to this reprint) are made by the Interpretation Legislation Amendment Act 2018 (Act No. 22, 2018) to: ss 1, 4 and 18.

• 4

  LIST OF AMENDMENTS

s 4                     amd No. 41, 2010, s 30