7.1 The discussion below focuses upon those aspects of civil procedure which are particularly relevant to claims for contribution among wrongdoers.
PROCEDURES FOR CLAIMING CONTRIBUTION
Joinder of actions
7.2 The common law rule preventing the joinder of several concurrent tortfeasors was abolished by s 2 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) and Part 8 r 1 of the Supreme Court Rules 1970 (NSW) and Part 7 r 1 of the District Court Rules 1973 (NSW). These provisions allow for the joinder of actions whether the liability is joint or several. Further, Part 8 r 5 of the Supreme Court Rules and Part 7 r 5 of the District Court Rules 1973 (NSW) allow a plaintiff to decide not to join defendants who are jointly liable. A defendant is entitled, by use of the third party procedure, to join a third party where the defendant intends to seek contribution from that third party.1
Initiating a claim for contribution
7.3 There are two ways in which a wrongdoer may initiate a claim for contribution:
- By joining a potential contributor as a third party to the principal action. The procedure for joining potential contributors as third parties (or cross-defendants) is a way of obviating the “need to enforce a contribution by way of a separate action”.2
- By an independent action for the sole purpose of enforcing a right to contribution.
7.4 There are a number of reasons why the process of apportioning losses between wrongdoers is more effective and cost efficient when they are parties to the same action. In New South Wales there are currently some provisions which aim to discourage plaintiffs from bringing multiple successive actions against potential tortfeasors.3 The Supreme Court Act 1970 (NSW) also contains an exhortation against multiple proceedings4 which has received consideration by the High Court and Court of Appeal.5 However, there are no specific provisions aimed at ensuring that all those from whom contribution may be sought are joined as third parties to the plaintiff’s primary cause of action. The Commission has identified two possible options for reform in this area. These approaches are embodied in the laws of Ontario and Ireland respectively, and are discussed below.
The Ontario approach
7.5 The Ontario Negligence Act6 has been interpreted as intending that a party who has been sued to judgment by P may claim contribution only within that action.7 Thus, if D2 is a co-defendant, D1’s claim must be made in the statement of defence; if D2 is not joined as a co-defendant to the plaintiff’s action, D1 must seek contribution by means of a third party claim. Despite suggestions from the Supreme Court of Canada that the current interpretation is “unsatisfactory”,8 the Ontario Law Reform Commission recommended a statutory codification of this rule.9
The Irish approach
7.6 The Civil Liability Act 1961 (Ireland) maintains the basic rule that a party who has been sued to judgment by P may claim contribution only within that action, but provides the court with a discretion to allow a claim for contribution to proceed by way of an independent action.10 The Act gives no indication of how this discretion should be exercised. Glanville Williams, upon whose draft legislation the Irish Act is based, has stated that an independent action should be permitted only where it is impossible, as a practical matter, for the third party notice to be served.11
The Commission’s view
7.7 There are some advantages which would follow from the introduction of a single action rule. These include the cost savings flowing from a reduction in the number of separate proceedings, and also the fact that potential contributors can determine with greater certainty whether they will be subject to a claim for contribution. However, an immediate introduction of such a rule would likely create hardship in New South Wales because defendants currently have the right to bring a claim for contribution at any time within the two year limitation period specified for contribution claims.12 On the other hand, the introduction of a modified version of the rule found in the Irish Civil Liability Act 1961 could be achieved without creating undue hardship. The effect would be to impose a general rule, qualified by a discretion to grant leave to seek contribution in a separate action. The basis for the exercise of the discretion should be that proposed by Glanville Williams, that, as a practical matter, it was not possible to serve the third party notice on the potential contributor.
7.8 In considering whether D1, if sued by P, should be compelled to seek contribution by means of third party procedure, other law reform agencies have had serious reservations about compelling D1 to claim in this way. Some of the arguments against such a provision include:
- that it would be inappropriate in cases where D1 was not aware of the existence of other wrongdoers or where the other wrongdoers were, in some way, not amenable to the court’s jurisdiction;13
- that it might lead to parties being brought to court unnecessarily as a precautionary measure to preserve any rights of contribution which may happen to arise;14 and
- that there may be perfectly legitimate reasons why wrongdoers may prefer to leave a determination of liability amongst themselves to another proceeding,15 or indeed why a plaintiff may not consider a potential wrongdoer worth pursuing.16
7.9 Most law reform agencies have preferred to maintain a sanction in costs and, to a lesser extent, a sanction in damages, as the only means of encouraging contribution claims to be brought in the initial action.17
7.10 In New South Wales claims by defendants against third parties who are not co-defendants are generally referred to as “cross-claims”.18 Currently Part 6 r 9 of the Supreme Court Rules 1970 (NSW) and Part 20 r 9 of the District Court Rules 1973 (NSW) provide for situations where a defendant makes a cross-claim for contribution. Any change would, therefore, require consideration by the Rules Committee of the Supreme Court.
7.11 The Commission is not entirely convinced of the need to introduce a rule based on the Ontario model, or a variant based on the Irish model, because of the potential such a rule may have to work unfavourably in particular cases. Our tentative view is that such a rule should not be introduced. However, we note the strong arguments on cost efficiency grounds to have all factual issues tried in the same hearing unless there are good reasons to the contrary. The Commission invites submissions on all the approaches identified above.
SANCTION IN COSTS
7.12 Section 5(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) provides that in cases of both joint and several liability a plaintiff pursuing successive suits will not be entitled to an order for costs unless there are reasonable grounds for bringing the action. The rationale for this rule is that it operates as a disincentive for a plaintiff to bring successive actions.19
7.13 Most law reform agencies have recommended the retention of the sanction in costs rule, notwithstanding the belief that the courts probably have the inherent power to make such costs orders in any case,20 although some considered that the court’s inherent power alone is sufficient.21 The Law Reform Commission considers that the sanction in costs should be retained and extended to include not only plaintiffs injured by tortfeasors but all plaintiffs injured by wrongdoers.
SANCTION IN DAMAGES
7.14 Section 5(1)(a) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) abolished the judgment bar rule for joint tortfeasors. However, s 5(1)(b) applied a sanction in damages to all successive actions whether the liability was joint or several. The “sanction in damages” prevented plaintiffs from recovering any more in subsequent actions than that which they obtained in the first action. The rationale of this provision was to discourage plaintiffs from bringing multiple actions and from “forum shopping” for increased awards of damages.22 The concern about “forum shopping” was particularly relevant when inconsistencies were apt to arise between jury verdicts, but this concern is no longer so pressing with the decline in the use of civil juries.23
7.15 Some law reform agencies have supported the retention of the sanction in damages, albeit with some modifications.24 However, the balance of the argument seems to be on the side of abolition of the sanction. In England, the rule has been abolished.25 The Ontario Law Reform Commission also recommended that it be abolished, reasoning that the sanction in damages was too onerous on the plaintiff and that this unfairness would be heightened if rights to contribution were extended to all joint wrongdoers.26 This could be the case, for example, where a plaintiff takes action against one wrongdoer liable under a contract which contains some form of limitation before proceeding against a tortfeasor liable for the same damage.27
THE DISTINCTION BETWEEN JOINT WRONGDOERS AND SEVERAL WRONGDOERS
7.16 As already mentioned in Chapter 1,28 concurrent wrongdoers may be either joint or several.29 However, this distinction between them has become difficult to justify, especially since the passing of contribution legislation has rendered the distinctions between joint tortfeasors and several tortfeasors irrelevant. Such differences as remain with respect to wrongdoers generally will sometimes adversely affect a concurrent wrongdoer’s right to claim contribution. The aim of the following paragraphs is to note the differences between joint wrongdoers and several wrongdoers and to propose reforms which will remove these differences.
7.17 The consequences of three important differences between joint wrongdoers and several concurrent wrongdoers will be considered. These are:
- judgment against one joint wrongdoer bars actions against the others (the “judgment bar rule”);
- release of, or accord with, one joint wrongdoer discharges all, unless there is an express reservation of rights against the others (the “settlement bar rule”); and
- when joint wrongdoers are sued together only one judgment can be given against them, and damages cannot be severed (the “single judgment rule”).30
7.18 The judgment bar rule has been affected by the provisions of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW)31 and the relevant provisions of the Supreme Court Rules 1970 (NSW) dealing with joinder.32 The remaining distinctions between joint wrongdoers and several concurrent wrongdoers serve no useful purpose. The general aim of reform in this area of the law should therefore be for the legal distinction between them to be abolished.33
The judgment bar rule
7.19 The common law rule that judgment against one joint tortfeasor barred all further actions against other joint tortfeasors was removed by s 5(1)(a) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) which now provides that a plaintiff can bring an action against a joint tortfeasor after obtaining judgment against another tortfeasor. The effect of this provision has been to place joint tortfeasors in the same position as several concurrent tortfeasors. Where a plaintiff chooses to bring successive actions against joint tortfeasors, s 5(1)(b) provides for a sanction in damages and a sanction in costs.34
7.20 The full impact of the operation of s 5(1)(a) and s 5(1)(b) on the “single judgment rule” and “settlement bar rule” is uncertain. There is also some uncertainty about whether the abolition of the judgment bar rule is effective where a plaintiff brings a single action against two joint tortfeasors and obtains judgment against one tortfeasor while the action is still pending against the other.35 The Civil Liability (Contribution) Act 1978 (Eng) abolished the defence of release by judgment by expressly applying it to “any person liable in respect of any debt or damage”. Further, the judgment bar rule was abolished not only in respect of successive actions but also in relation to a “single action against two or more persons”.36
7.21 Section 5(1)(a) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) refers only to joint tortfeasors. If the proposal to extend rights of contribution to mixed concurrent wrongdoers is adopted, it will be necessary to widen the abolition of the judgment bar rule to include mixed concurrent wrongdoers who are jointly liable to the plaintiff, including co-sureties.
7.22 In addition to the necessary changes to s 5(1)(a) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 97 of the Supreme Court Act 1970 (NSW) and relevant parts of both the District Court Rules and s 29 of the Local Courts (Civil Claims) Act 1970 (NSW) will need to be amended to confirm the abolition of the judgment bar rule for all joint wrongdoers.
The settlement bar rule
7.23 At common law, release or release by accord and satisfaction by a plaintiff with a joint wrongdoer discharges the liability of all other joint wrongdoers.37 This was the case even where the amount for which the plaintiff settled with the wrongdoer was less than the amount of the judgment in favour of the plaintiff. This rule was ameliorated by the effect of the distinction between a “release” and a “covenant not to sue”. The latter, but not the former, preserved the plaintiff’s rights against the other parties who were liable to the plaintiff. However, a plaintiff had to state specifically that the agreement with the joint tortfeasor was a covenant not to sue.
7.24 Fleming has argued that the basis for the settlement bar rule may have been implicitly abrogated by s 5(1)(a) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) which provides for the authorisation of successive actions.38 In XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd, Justice Brennan stated that:
The effect of s 5(1) upon the joint and several liability of joint tortfeasors is far reaching, for the unity of the cause of action against all joint tortfeasors is severed by s 5(1)(a) and the resulting implications are not merely procedural ... As s 5(1)(a) confers on a plaintiff the right to recover judgments in successive actions against the respective tortfeasors, the unity of the common law cause of action against all joint tortfeasors is severed. Axiomatically, a judgment awarding damages against any tortfeasor must be founded on an antecedent cause of action against him, and so a plaintiff now has as many causes of action as there are joint tortfeasors.39
7.25 The High Court has since held, in relation to the Australian Capital Territory equivalent of s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW),40 that the unity of a cause of action against joint tortfeasors has been effectively severed and there is no conceptual basis for the rule concerning the release of joint wrongdoers which has, therefore, been abrogated.41
7.26 There are other good reasons for explicitly abolishing the settlement bar rule, as Professor Fleming has noted:
The effect of the rule was in any event pernicious, either discouraging settlements or ensnaring the unwary. From a functional point of view it was all the more difficult to justify because the law has otherwise been most solicitous to encourage settlements with one or more multiple tortfeasors by only reducing the settlor’s claim against the others pro tanto rather than in equal shares (pro rata).42
7.27 Abolition of the settlement bar rule requires that the effect of a settlement by a plaintiff with a joint tortfeasor will be entirely dependent upon the intention of the plaintiff who reaches the settlement with the defendant.43 At least one law reform body has seen the need to provide expressly that it should be possible for contracting parties to state that the “specific incidents of joint obligations will apply to their bargain”.44 Abolition of the settlement bar rule should be extended to apply to all wrongdoers, as was proposed in relation to the abolition of the judgment bar rule.
7.28 The English Law Commission noted the problem of the settlement bar rule but recommended against reform of the law because any reform in this area would have to deal with all forms of joint liability.45 By contrast, the Ontario Courts of Justice Act46 abolished both the judgment bar rule and the settlement bar rule for all kinds of joint wrongdoers.
7.29 The Commission’s tentative view is that the settlement bar rule should be abolished for all joint wrongdoers. The effect of this proposal is that settlements involving joint wrongdoers should be treated in precisely the same way as settlement involving several wrongdoers.
Single judgment rule
7.30 One consequence of the single judgment rule was that it was impossible for a court to apportion damages between joint tortfeasors, or to award exemplary damages against any one of them. In XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd, the High Court found that s 5(1)(a) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) had abolished the common law rule that only one judgment could be awarded in an action for damages against joint tortfeasors. In XL Petroleum, the Court confirmed an award of exemplary damages against one of the joint tortfeasors who was a party to that action. In reaching this conclusion, the High Court by implication abolished the single judgment rule.47
7.31 If s 5(1)(a) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) is recast to include all joint wrongdoers, it follows that the single judgment rule would likewise be abrogated for all joint wrongdoers.
LIMITATION PERIODS
7.32 There are two situations in which limitation periods may affect a claim for contribution made by D1 against D2. The first is where P proceeds against D1 at a time when P’s primary cause of action against D2 is statute barred. The second is concerned with the limitation period within which D1 is allowed to initiate a claim for compensation against D2.
Limitation period relevant to the primary cause of action
7.33 When provision is made for contribution between wrongdoers liable under different heads of liability, it is inevitable that, in some cases, the limitation periods for the primary causes of action will differ with the result that P may bring an action against D1 at a time when P’s action against D2 is barred.48 The circumstances in which there are likely to be varying limitation periods are in cases involving personal injury,49 in cases involving damage in the form of economic loss,50 or in instances where statutes define specific limitation periods.51
7.34 The approach to resolving this problem will depend in part on a general assessment of the role of limitation periods. The particular problem in the case of rights of contribution is that the later two year limitation period for D1 to initiate a claim for contribution does not begin to run until D1’s liability to P is determined.52
7.35 The current position in relation to tortfeasors is that the termination of the limitation period in P’s action against D2 will not prevent D1 claiming contribution from D2 because of the interpretation placed on s 5(1)(a) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).53 The Commission has identified two other ways to align the rights of D1 and D2 where there are different limitation periods. D1 could be denied a right of contribution from D2 when P’s action against D2 is statute barred.54 Alternatively, P’s right to damages in the action against D1 could be reduced on the grounds that P should bear the losses flowing from a failure to sue D2 within the limitation period.55
7.36 An acceptable solution to this issue depends in large part upon the weight to be accorded to the limitation periods for the principal causes of action as against D1’s rights to contribution. The Ontario Law Reform Commission,56 the New Zealand Law Commission,57 and the Civil Liability (Contribution) Act 1978 (Eng)58 have confirmed the position reached by the High Court in Brambles Construction Pty Ltd v Helmers59 that, where P initiates an action against D1 at a time when P’s cause of action against D2 is statute barred, D2 will not be able to rely on the passing of the limitation period as a defence against D1’s claim for contribution.
7.37 There are two reasons for retaining the rule in Brambles Construction Pty Ltd v Helmers. The first, consistent with the doctrine of solidary liability, is that P should not bear the burden of having failed to bring an action against D1 within the limitation period applicable to D2.60 The second is that allowing D1 to claim contribution from D2, at a time when P’s action against D2 is statute barred, removes in effect the capacity of P to decide whether D1 will be able to claim contribution from D2.61
7.38 Some law reform agencies have raised concerns that the ability of D1 to settle with P long after the expiration of the primary limitation periods for all defendants could result in the indefinite extension of the time during which D2 could be called on to contribute to D1.62 In fact, the Scottish Law Commission argued that:
Payment by D1 could, therefore, be a collusive device to get round the fact that P had failed to sue D2 within the appropriate time limit.63
However, this concern appears to have no basis in New South Wales where s 26(1)(b) of the Limitation Act 1969 (NSW) provides that an action for contribution cannot be pursued beyond four years from the expiry of the limitation period of the principal cause of action.
Limitation period for contribution actions
7.39 In New South Wales a claim for contribution is a separate cause of action and hence has its own limitation period. Section 26(1) of the Limitation Act 1969 (NSW) provides that a claim for contribution is not maintainable if brought after the first to expire of:
The date on which the cause of action first accrues is defined in s 26(2) as the date on which judgment is given in the action of P against D1, or the date on which P and D1 reach a settlement to the action of P against D1.64
7.40 The overall effect of the operation of s 26 is that a defendant seeking contribution has two years from the date of judgment in the principal action in which to initiate a claim for contribution.65 This is generally in line with the limitation period for claims for contribution established by the Civil Liability (Contribution) Act 1978 (Eng)66 and with recommendations of other law reform bodies,67 although some have opted for longer periods.68
7.41 By contrast, s 24(4) of the Wrongs Act 1958 (Vic) provides for a limitation period for a claim for contribution which is shorter than that in New South Wales. In Victoria, the action must commence either within the period of limitation relevant to P’s action against D1, or within twelve months after the writ in the action against D1 was served on D1. The University of Alberta Institute of Law Research and Reform has taken a different approach and recommended that the limitation period for a contribution claim should be the limitation period for the original wrong.69
7.42 The reasons which are generally used to justify imposing limitation periods are equally relevant to the cause of action for contribution. Indeed, the general trend has been to reduce limitation periods for claims for contribution. This is primarily because the cause of action for contribution only accrues when judgment is given in the principal action. The effect of this is that a claim for contribution can be made well outside the limitation period for the principal cause of action.
7.43 While the arguments in support of a short limitation period for causes of action for contribution are strong, the Commission takes the view the period provided by the Wrongs Act 1958 (Vic) is too short. It is possible that D1 could otherwise lose his or her right to contribution before the cause of action to claim contribution first accrued.70
7.44 There is, however, one change which will need to be made to s 26 of the Limitation Act 1969 (NSW). If rights to contribution are extended to all concurrent wrongdoers, s 26 will need to be amended to reflect this change so that there is one limitation period for causes of action for contribution.
QUESTIONS ARISING IN CHAPTER 7
7.1 Should all claims for contribution be made in the same action? If not, in what circumstances should claims for contribution be heard in separate actions?
7.2 Is a sanction in costs sufficient to discourage successive actions being taken against defendants by plaintiffs?
7.3 Is a sanction in damages desirable as a means of discouraging successive actions being taken against defendants by plaintiffs?
7.4 Should the abolition of the judgment bar rule be extended to all joint wrongdoers?
7.5 Should the settlement bar rule be abolished for all joint wrongdoers?
7.6 Should the abolition of the single judgment rule be extended to all joint wrongdoers?
7.7 Should the termination of the limitation period in P’s action against D2 prevent D1 claiming contribution from D2?
7.8 Should P’s right to damages in the action against D1 be reduced on the grounds that P should bear the losses flowing from a failure to sue D2 within the limitation period?
7.9 How long should the limitation period for contribution actions be?
FOOTNOTES
1. See also Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 3.
2. B C Cairns, Australian Civil Procedure (4th ed, LBC Information Services, Sydney, 1996) at 353.
3. Namely the sanction in damages and the sanction in costs contained in s 5(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).
4. Supreme Court Act 1970 (NSW) s 63.
5. Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 at 307. See also cases cited in A V Ritchie, Ritchie’s Supreme Court Procedure, New South Wales (New ed, Butterworths, Sydney, 1984) Volume 1 at [s 63.1].
6. RSO 1980 c 315.
7. This rule was first established in Cohen v S McCord & Co Ltd [1944] 4 DLR 753 (CA). See also Ontario Law Reform Commission, Report on Contribution Among rongdoers and Contributory Negligence (1988) at 209.
8. R v Thomas Fuller Construction Co Ltd [1980] 1 SCR 695.
9. Ontario Law Reform Commission, Report on Contribution Among Wrongdoers and Contributory Negligence (1988) at 215-216.
10. Civil Liability Act 1961 (Ireland) s 27(1).
11. G L Williams, Joint Torts and Contributory Negligence (Stevens & Sons, London, 1951) at 185-186.
12. See s 26(1) of the Limitation Act 1969 (NSW).
13. Scottish Law Commission, Report on Civil Liability: Contribution (Scot Law Com No 115, 1988) at paras 3.78-3.79; New Zealand Law Commission, Apportionment of Civil Liability: A Discussion Paper (PP 19, 1992) at para 256.
14. University of Alberta, Institute of Law Research and Reform, Contributory Negligence and Concurrent Wrongdoers (Report 31, 1979) at 74.
15. University of Alberta, Institute of Law Research and Reform, Contributory Negligence and Concurrent Wrongdoers (Report 31, 1979) at 74.
16. New Zealand Law Commission, Apportionment of Civil Liability: A Discussion Paper (PP 19, 1992) at para 256.
17. See paras 7.12-7.15.
18. See Supreme Court Act 1970 (NSW) s 78 and Supreme Court Rules 1970 (NSW) Pt 6. Cross-claims also incorporate claims brought in the one action by defendants against plaintiffs and by defendants against co-defendants.
19. There is also the question of using a sanction in costs mechanism to encourage D1 to claim for contribution within the proceedings initiated by P. See para 7.9 and Scottish Law Commission, Report on Civil Liability: Contribution (Scot Law Com No 115, 1988) at paras 3.80-3.82.
20. Ontario Law Reform Commission, Report on Contribution Among Wrongdoers and Contributory Negligence (1988) at 28; England and Wales, Law Commission, Law of Contract: Report on Contribution (Law Com No 79, 1977) at paras 37-39; Law Reform Commission of Saskatchewan, Proposals Relating to Joint Obligations (Report to the Minister of Justice, 1985) at 12; Law Reform Commission of Hong Kong, Report on the Law Relating to Contribution Between Wrongdoers (Topic 5, 1984) at para 9.1; and University of Alberta, Institute of Law Research and Reform, Contributory Negligence and Concurrent Wrongdoers (Report 31, 1979) at 29-30. See also J R Morris, Apportionment of Civil Liability (Legal Research Foundation Inc, Publication No 28, 1987) at 24-25.
21. Law Reform Commission of British Columbia, Report on Shared Liability (LRC 88, 1986) at 17; and New Zealand Law Commission, Apportionment of Civil Liability: A Discussion Paper (PP 19, 1992) at para 263.
22. See eg, England and Wales, Law Commission, Law of Contract: Report on Contribution (Law Com 79, 1977) at paras 40-41.
23. Law Reform Commission of Hong Kong, Report on the Law Relating to Contribution Between Wrongdoers (Topic 5, 1984) at para 9.1; New Zealand Law Commission, Apportionment of Civil Liability: A Discussion Paper (PP 19, 1992) at para 259.
24. University of Alberta, Institute of Law Research and Reform, Contributory Negligence and Concurrent Wrongdoers (Report 31, 1979) at 29-30; Law Reform Commission of British Columbia, Report on Shared Liability (LRC 88, 1986) at 16-17.
25. Civil Liability (Contribution) Act 1978 (Eng) s 9(2), repealing s 6(1)(b) of the Law Reform (Married Women and Tortfeasors) Act 1935 (Eng).
26. Ontario Law Reform Commission, Report on Contribution Among Wrongdoers and Contributory Negligence (1988) at 20-21.
27. See Law Reform Commission of Hong Kong, Report on the Law Relating to Contribution Between Wrongdoers (Topic 5, 1984) at para 9.1; England and Wales, Law Commission, Law of Contract: Report on Contribution (Law Com 79, 1977) at para 40. See also J R Morris, Apportionment of Civil Liability (Legal Research Foundation Inc, Publication No 28, 1987) at 23.
28. See paras 1.9-1.11.
29. The differences between joint wrongdoers and several concurrent wrongdoers should not be confused with the question of a defendant’s joint and several liability to the plaintiff, that is, that each person responsible for causing another person’s damage is, if sued by the plaintiff, liable for the full amount of that damage. In this sense, the liability of both joint wrongdoers and several concurrent wrongdoers is solidary.
30. Williams (1951) at para 3.
31. See paras 1.13-1.17.
32. Supreme Court Rules 1970 (NSW) Part 8.
33. See Williams (1951) at para 3.
34. See paras 7.12-7.15.
35. See eg, Bryanston v De Vries [1975] QB 703; see also England and Wales, Law Commission, Law of Contract: Report on Contribution (Law Com 79, 1977) at paras 35-37.
36. Civil Liability (Contribution) Act 1978 (Eng) s 3; and Wrongs Act 1958 (Vic) s 24AA.
37. Williams (1951) at para 11. Note that this rule is quite distinct from that which provides that full satisfaction discharges the liability of all other tortfeasors, both joint and several concurrent tortfeasors, to the plaintiff: see, eg, Castellan v Electric Power Transmission Pty Ltd (1967) 69 SR (NSW) 159 at 180-182 per Asprey JA.
38. J G Fleming, The Law of Torts (8th ed, Law Book Company, Sydney, 1992) at 259.
39. XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 466.
40. Law Reform (Miscellaneous Provisions) Act 1955 (ACT) s 11.
41. Thompson v Australian Capital Television Pty Ltd (1996) 71 ALJR 131 at 134-135 per Brennan CJ, Dawson and Toohey JJ, at 138 per Gaudron J, and at 151-152 per Gummow J.
42. J G Fleming, The Law of Torts (8th ed, Law Book Company, Sydney, 1992) at 259.
43. There may be a need to deal specifically with payments into court: see Williams (1951) at para 12; Ontario Law Reform Commission, Report on Contribution Among Wrongdoers and Contributory Negligence (1988) at 13-14.
44. Law Reform Commission of Saskatchewan, Proposals Relating to Joint Obligations (Report to the Minister of Justice, 1985) at 10.
45. England and Wales, Law Commission, Law of Contract: Report on Contribution (Law Com 79, 1977) at paras 42-43.
46. SO 1984, c 11. Section 149(1) states that “Where two or more persons are jointly liable in respect of the same cause of action, a judgment against or release of one of them does not preclude judgment against any other in the same or a separate proceeding”.
47. XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; Fleming (1992) at 258.
48. See also paras 4.74-4.76.
49. See Limitation Act 1969 (NSW) Part 3 Division 3 which provides for a three year limitation period with various provisions for extension of time in cases involving an action “founded on negligence, nuisance or breach of duty, for damages for personal injury”; cf the limitation period for either an intentional tort or for breach of contract which remains six years: s 14(1).
50. See Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27 at 65-71. In this case the plaintiff’s contractual claim was statute barred but the negligence action was within time because the economic loss was sustained when the plaintiffs became aware of the defect, that is, the point of time when the building sustained the diminution in value which amounted to the economic loss.
51. Trade Practices Act 1974 (Cth) s 75A (three year period runs from when the person becomes aware of the loss). See paras 4.18-4.19 for discussion of whether there is any right to contribution arising out of breach of the Trade Practices Act 1974 (Cth).
52. Limitation Act 1969 (NSW) s 26.
53. See para 4.75.
54. George Wimpey & Co Ltd v British Overseas Airways Corp [1955] AC 169.
55. Williams (1951) at 444-446.
56. Ontario Law Reform Commission, Report on Contribution Among Wrongdoers and Contributory Negligence (1988) at 157-158.
57. New Zealand Law Commission, Apportionment of Civil Liability: A Discussion Paper (PP 19, 1992) at paras 240-249.
58. Civil Liability (Contribution) Act 1978 (Eng) s 1(3).
59. (1966) 114 CLR 213
60. This involves a rejection of the solution proposed by Williams (1951) at 444-446, and adopted by the Civil Liability Act 1961 (Ireland) s 35(1)(i).
61. See also the discussion at paras 4.74-4.76.
62. New Zealand Law Commission, Apportionment of Civil Liability: A Discussion Paper (PP 19, 1992) at para 252; Scottish Law Commission, Report on Civil Liability: Contribution (Scot Law Com No 115, 1988) at paras 3.25-3.40; University of Alberta, Institute of Law Research and Reform, Contributory Negligence and Concurrent Wrongdoers (Report 31, 1979) at 71.
63. Scottish Law Commission, Report on Civil Liability: Contribution (Scot Law Com No 115, 1988) at para 3.25.
64. Limitation Act 1969 (NSW) s 14(2)(b).
65. The effect of s 26(1)(b) is to provide an outer limit to the right to contribution where no judgment is given, or settlement reached, four years after the expiration of the original cause of action.
66. Section 47 of which provides a general limitation period of two years for all causes of action.
67. Ontario Law Reform Commission, Report on Contribution Among Wrongdoers and Contributory Negligence (1988) at 222-223; Scottish Law Commission, Report on Civil Liability: Contribution (Scot Law Com No 115, 1988) at paras 3.94-3.95; Law Reform Commission of Hong Kong, Report on the Law Relating to Contribution Between Wrongdoers (Topic 5, 1984) at paras 5.17-5.19. See also J R Morris, Apportionment of Civil Liability (Legal Research Foundation Inc, Publication No 28, 1987) at 51-60.
68. Three years: New Zealand Law Commission, Apportionment of Civil Liability: A Discussion Paper (PP 19, 1992) at para 254.
69. University of Alberta, Institute of Law Research and Reform, Contributory Negligence and Concurrent Wrongdoers (Report 31, 1979) at 76.
70. See eg, Van Win Pty Ltd v Eleventh Mirontron Pty Ltd [1986] VR 484.
