Wrongs Act 1954 (TAS)

Wrongs Act 1954

[The long title Substituted by No. 39 of 2000, s. 4, Applied:29 Jun 2000] An Act to amend the law relating to proceedings against, and contributions between, persons committing wrongful acts and the law relating to contributory negligence

[Royal Assent 28 April 1954]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1Short title [Section 1 Amended by No. 39 of 2000, s. 5, Applied:29 Jun 2000] This Act may be cited as the Wrongs Act 1954 . 2Interpretation [Section 2 Amended by No. 93 of 1973, s. 5 ]In this Act, unless the contrary intention appears – action includes a counter-claim and proceedings by way of arbitration; court, used in relation to a claim, means the court before which the claim falls to be determined, and, except in subsections (6) and (7) of section three, includes an arbitrator before whom the claim falls to be determined; [Section 2 Amended by No. 39 of 2000, s. 6, Applied:29 Jun 2000] [Section 2 Amended by No. 39 of 2000, s. 6, Applied:29 Jun 2000] damage includes loss of life, personal injury, damage to property, economic loss and loss of any other kind; dependant means a person for whose benefit an action could be brought under the Fatal Accidents Act 1934 ; [Section 2 Amended by No. 39 of 2000, s. 6, Applied:29 Jun 2000] plaintiff includes a defendant who counter-claims; [Section 2 Amended by No. 39 of 2000, s. 6, Applied:29 Jun 2000] wrongful act means an act or omission that – (a) gives rise to a liability in tort or would, if it caused damage to another person, give rise to a liability in tort; or (b) amounts to a breach of a contractual duty of care that is concurrent and co-extensive with a duty of care in tort; or (c) amounts to a breach of a statutory duty – and includes an act or omission on the part of a person suffering damage that causes or contributes to the damage and that constitutes a failure on the part of that person to take reasonable care for the protection of his or her person or property. 3Proceedings against, and contribution between, wrongdoers (1)  [Section 3 Subsection (1) amended by No. 39 of 2000, s. 7, Applied:29 Jun 2000] Where damage is suffered by a person as the result of a wrongful act – (a) [Section 3 Subsection (1) amended by No. 39 of 2000, Sched. 1, Applied:29 Jun 2000] [Section 3 Subsection (1) amended by No. 39 of 2000, s. 7, Applied:29 Jun 2000] judgment recovered against a person who is liable in respect of that damage is not a bar to an action against any other person who would, if sued by the person by whom the damage was suffered at the time when the cause of action arose, have been liable in respect of the same damage; (b) [Section 3 Subsection (1) amended by No. 39 of 2000, s. 7, Applied:29 Jun 2000] if more actions than one are 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 a dependant, of that person, against persons who are liable in respect of the damage 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 is not entitled to costs unless the court is of the opinion that there was reasonable ground for bringing the action; (c) [Section 3 Subsection (1) amended by No. 39 of 2000, Sched. 1, Applied:29 Jun 2000] [Section 3 Subsection (1) amended by No. 39 of 2000, s. 7, Applied:29 Jun 2000] a person who is liable in respect of that damage may recover contribution from any other person who is, or would, if sued by the person by whom the damage was suffered at the time when the cause of action arose, have been, liable in respect of the same damage but so that no person is entitled to recover contribution under this section from a person who is entitled to be indemnified by him in respect of the liability in respect of which the contribution is payable; (d) [Section 3 Subsection (1) amended by No. 39 of 2000, Sched. 1, Applied:29 Jun 2000] [Section 3 Subsection (1) amended by No. 39 of 2000, s. 7, Applied:29 Jun 2000] a person may recover contribution or indemnity from another person who is, or would, if sued by the person by whom the damage was suffered at the time when the cause of action arose, have been, liable in respect of the same damage by settling with the person by whom the damage was suffered and thereafter commencing or continuing an action against the other person, in which case the first-mentioned person shall satisfy the court that the amount of the settlement was reasonable, and if the court finds that the amount of the settlement was excessive it may fix the amount at which the claim should have been settled. (e) [Section 3 Subsection (1) amended by No. 39 of 2000, s. 7, Applied:29 Jun 2000] .  .  .  .  .  .  .  .   (2) In proceedings for contribution under this section, the amount of the contribution that is recoverable from a person shall be such amount 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, for the purposes of this section, the court has power to exempt a person from liability to make contribution, or to direct that the contribution to be recovered from a person shall amount to a complete indemnity. (3)  [Section 3 Subsection (3) amended by No. 39 of 2000, s. 7, Applied:29 Jun 2000] A release of, or accord with, one person granted or made by a person by whom damage is suffered– (a) [Section 3 Subsection (3) amended by No. 39 of 2000, s. 7, Applied:29 Jun 2000] does not discharge another person unless the release so provides; and (b) [Section 3 Subsection (3) amended by No. 39 of 2000, s. 7, Applied:29 Jun 2000] relieves the person to whom it is granted or with whom it is made from liability to make contribution to another person–and has effect to reduce the claim of the person by whom damage is suffered– (c) in the amount of the consideration paid for the release or accord; (d) in any amount or proportion by which the release or accord provides that the total claim of that person shall be reduced; or (e) [Section 3 Subsection (3) amended by No. 39 of 2000, s. 7, Applied:29 Jun 2000] to the extent that the person to or with whom the release or accord is granted or made would have been liable to make contribution to another person if the total claim of the person by whom damage is suffered had been paid by the other person– whichever is the greatest. (4)  [Section 3 Subsection (4) amended by No. 39 of 2000, Sched. 1, Applied:29 Jun 2000] For the purposes of this section, the taking out of court of money that has been paid in by a person shall be deemed to be an accord and satisfaction with him, and the amount of money so taken out shall be deemed to be the amount of the consideration paid for the accord. (5) Notwithstanding any provisions of any enactment requiring notice of damage or injury to be given, or notice of an intended action to be given, or limiting the time within which an action may be brought, proceedings for contribution under this section may, although notice of damage or injury, or notice of an intended action, as the case may be, has not been given, or the time so limited has expired, be commenced at any time within the period of twelve months (or within such extended period as may be allowed pursuant to subsection (6) of this section) after the writ in the original action was served on the person seeking to recover contribution. (6)  [Section 3 Subsection (6) amended by No. 39 of 2000, s. 7, Applied:29 Jun 2000] A judge, magistrate or any other person constituting or presiding over a court of competent jurisdiction, on the application of a person seeking to recover contribution under this section, may, in his discretion and subject to such conditions (if any) as he may impose, extend the period within which proceedings for recovery of contribution shall be commenced, notwithstanding that the period prescribed in subsection (5) of this section may have expired, if he is satisfied that the person from whom contribution is sought to be recovered will not be prejudiced in his defence by reason of the extension. (7)  [Section 3 Subsection (7) amended by No. 39 of 2000, s. 7, Applied:29 Jun 2000] Execution for the recovery of contribution under this section shall not be issued without the leave of a judge, magistrate or any other person constituting or presiding over a court of competent jurisdiction, and upon application for leave under this subsection the judge, magistrate or other person may direct that payment to the original plaintiff shall be sufficient satisfaction of the judgment for contribution. (8)  Nothing in this section – (a) affects any criminal proceedings against a person in respect of a wrongful act; or (b) renders enforceable an agreement for indemnity that would not have been enforceable if this section had not been enacted. (9)  A reference in this section 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 that is not so reversed, and, in a case where a judgment is varied on appeal, shall be construed as a reference to that judgment as so varied. 4Apportionment of liability in case of contributory negligence (1)  [Section 4 Subsection (1) amended by No. 41 of 2003, s. 11, Applied:04 Jul 2003] [Section 4 Subsection (1) amended by No. 39 of 2000, s. 8, Applied:29 Jun 2000] Where a person suffers damage as the result partly of that person’s wrongful act and partly of the wrongful act of any other person, a claim in respect of that damage is not defeated by reason of the wrongful act of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent up to 100% as the court thinks just and equitable, having regard to the claimant’s share in the responsibility for the damage; but– (a) this subsection does not operate to defeat a defence arising under a contract; and (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)  [Section 4 Subsection (2) amended by No. 39 of 2000, s. 8, Applied:29 Jun 2000] Where damages are recoverable by a person by virtue of subsection (1) of this section subject to such a reduction as is mentioned in that subsection, the court shall find and record the total damages that would have been recoverable if there had been no wrongful act by the claimant. (3)  Section three applies in any case where two or more persons are liable or would, if they had all been sued by the person by whom the damage was suffered at the time when the cause of action arose, have been liable by virtue of subsection (1) of this section in respect of the damage suffered by any person. (4)  [Section 4 Subsection (4) amended by No. 39 of 2000, s. 8, Applied:29 Jun 2000] [Section 4 Subsection (4) amended by No. 99 of 1982, s. 3 and Sched. 2 ]Where a person dies as a result partly of that person’s wrongful act and partly of the wrongful act of any other person, and accordingly if an action were brought for the benefit of the estate under the Administration and Probate Act 1935 the damages recoverable would be reduced under subsection (1) of this section, any damages recoverable in an action brought for the benefit of the dependants of the person under the Fatal Accidents Act 1934 shall be reduced to a proportionate extent. (5)  [Section 4 Subsection (5) amended by No. 39 of 2000, s. 8, Applied:29 Jun 2000] Where, in a case to which section three or subsection (1) of this section applies, one of the persons who committed a wrongful act or his personal representative avoids liability to another person or his personal representative by pleading any enactment limiting the time within which proceedings may be taken, he is not entitled to recover damages or contribution from that other person or personal representative. (6)  [Section 4 Subsection (6) amended by No. 39 of 2000, s. 8, Applied:29 Jun 2000] Where a case to which subsection (1) of this section applies is tried with a jury, the jury shall determine the total damages that, apart from any limitation of liability provided by any contract or prescribed by any enactment or any limitation of the jurisdiction of the court, would have been recoverable if there had been no wrongful act by the claimant and the extent to which those damages are to be reduced. (7)  [Section 4 Subsection (7) amended by No. 39 of 2000, s. 8, Applied:29 Jun 2000] A reference in this section to the wrongful act of a person shall be construed as including a reference to a wrongful act for which that person is vicariously liable. (8) This section has effect notwithstanding anything contained in any enactment passed before the commencement of this Act whereby a person is debarred from recovering damages or from taking an action for the recovery of damages in respect of any damage or injury that he caused, or to which he contributed, by his own negligence. 5Retrospective effect of Tortfeasors and Contributory Negligence Amendment Act 2000 [Section 5 Repealed by No. 93 of 1973, s. 5 ][Section 5 Inserted by No. 39 of 2000, s. 9, Applied:29 Jun 2000] The amendments to this Act made by the Tortfeasors and Contributory Negligence Amendment Act 2000 apply to and in respect of a cause of action arising before the commencement of that Act in the same way as they apply to and in respect of a cause of action arising after that commencement, but this Act, as so amended, has no effect in the case of – (a) a cause of action in respect of which a court has given judgment or has reserved judgment (including in either case a judgment as to liability only), whether or not an appeal has been made against that judgment; or (b) a cause of action in respect of which the parties have entered into an agreement to settle claims arising from that cause of action (including an agreement as to liability only). 6Savings (1)  Nothing in this Act affects the operation of subsection (11) of section eleven of the Supreme Court Civil Procedure Act 1932 , and that subsection has effect as if this Act had not been enacted. (2)  This Act does not apply to a case where the act or omission giving rise to a claim occurred before the commencement of this Act. 7Act binds the CrownThis Act binds the Crown.