3.1 This chapter deals with the question of where a right to contribution arises, that is, which wrongdoers should be able to claim contribution from other wrongdoers liable for the same damage, and the circumstances in which such a right should arise.
ENSURING COVERAGE OF ALL TORTFEASORS
3.2 Section 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) does not expressly exclude any specific categories of tort and, therefore, can be taken to cover all types of concurrent tortfeasors. In DP 38 the Commission asked whether any specific categories of tortfeasor should be excluded from the application of the section as it currently stands.1 The following torts are considered:
- torts that are crimes;
- intentional torts; and
- torts of strict liability.
The Commission’s general conclusion is that there should be no restrictions on the classes of tortfeasors who can claim contribution from other wrongdoers.
Torts that are crimes
3.3 Torts that are crimes were considered because it has been thought by some that tortfeasors should not be able to base a cause of action for contribution on the commission of a crime.2 Section 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) expressly includes torts that are crimes within the categories of torts for which contribution can be claimed. There are two principles3 to be noted when considering the retention of contribution with respect to torts that are crimes: the first is that it is not possible to have a blanket provision preventing rights of contribution where the tort is also a crime, given the range of wrongs which constitute crimes and the wide variety of contexts in which those wrongs are committed;4 the second is that the question of whether a defendant should have a right to contribution would presumably depend on the nature of the crime committed and on the circumstances relevant to the case.5
Intentional torts
3.4 Intentional torts raise similar issues to those discussed in relation to torts which are also crimes. While there is no specific provision including intentional torts amongst those for which contribution may be claimed, the Commission is of the view that the New South Wales courts will follow the course adopted in other common law jurisdictions6 and allow intentional tortfeasors to claim contribution from other wrongdoers. Once again, it is not possible to formulate a general rule excluding rights of contribution for intentional tortfeasors and it is both practicable and just for courts to apportion responsibility between defendants once one defendant’s liability to the plaintiff is established. Also, there is no justification for allowing one or more concurrent tortfeasors to escape liability simply because there is one tortfeasor whose wrongdoing can be classed as intentional.7 A problem would also arise in situations where there is more than one intentional tortfeasor.8
Torts of strict liability
3.5 Torts of strict liability may arise at common law or, more commonly, by statute. When they arise by statute, there is some uncertainty where no provision is made for a scheme of statutory rights of contribution, such as the liability created by s 2(2) of the Damage by Aircraft Act 1952 (NSW).9 It seems that where liability arises from breach of statutory duty, a tortfeasor will have the right to claim contribution from another tortfeasor;10 this may be the case even though the tortfeasors cannot avail themselves of the defence of contributory negligence in the primary action against the plaintiff.11 While it can be argued that strict liability tortfeasors should bear the whole burden of the damage suffered by the plaintiff on the grounds that the law makers have clearly specified where the liability for the damage caused is ultimately to fall, it can also be argued that strict liability torts are concerned with ensuring that in certain defined circumstances an injured plaintiff will recover compensation and that there is a clearly defined entity against which a plaintiff can commence an action.12 Therefore, once a plaintiff has recovered compensation from the tortfeasor who is strictly liable, there is no reason why that tortfeasor cannot then claim contribution from other wrongdoers, irrespective of the nature of their liability.
3.6 The Commission in recommending that it should be possible for the tortfeasors listed above to claim contribution from other wrongdoers, also considers that the courts should be left with a wide discretion as to how to apportion responsibility, including the right to award full contribution against particular defendants depending on the circumstances of the case.
EXTENSION TO MIXED CONCURRENT WRONGDOERS
Recommendation 2
Rights of contribution should be extended to include mixed concurrent wrongdoers. Rights of contribution to mixed concurrent wrongdoers, some of whom are liable in contract, should explicitly provide that a defendant, whose liability to the plaintiff in contract is expressly limited or exempted, should have the full benefit of those contractual terms.
3.7 The Law Reform (Miscellaneous Provisions) Act 1946 (NSW) currently provides that rights to contribution are available only between wrongdoers who are tortfeasors. This means that where there is more than one person responsible for the same damage, and at least some are wrongdoers under heads of liability other than tort,13 contribution is not available to those wrongdoers if they are proceeded against.
Difficulties in extending the right to contribution
3.8 Despite the largely uncontroversial nature of the proposal to extend the right to claim contribution to wrongdoers other than tortfeasors, a number of issues mostly related to liability in tort, contract and restitution have been considered by the Commission:
1. the fundamental difference between liability arising under different sources of obligation, in particular tort and contract;
2. the potential that liability under different heads (for example, tort, contract and restitution) may be found to exist concurrently, which may render reform in this area unnecessary; and
3. the potential for adding an unnecessary degree of complexity to an already complex area of the law, in particular the fact that there are different bases of assessment of damages in contract and tort.
Each of these concerns will be considered in the following paragraphs.
Different nature of liability
3.9 Differences in the basis of liability among various joint wrongdoers may make it difficult for courts to decide how to apportion liability among them. An assumption underlying existing rights of contribution (in tort and equity) is that the liability of both wrongdoers to the plaintiff is the same.14 Each defendant has the same kind of liability to the plaintiff, and apportionment between the defendants is simply required to be “just and equitable”.15 However, where the liability of the defendants is different, as in the case of one defendant being liable to the plaintiff for breach of contract and the other defendant being a tortfeasor, the underlying rationale for the apportionment of responsibility disappears. The liability of the defendant (D1), who is liable to P in tort, arises because D1 breached a duty imposed on D1 by operation of the law. The liability of D2 in contract arises because D2 has breached a term of the contract with which D2 had promised to comply. The only common element between D1 and D2 is that breach of their separate and independent obligations to P caused the harm sustained by P. In this context it may be argued that a just and equitable apportionment of responsibility between D1 and D2 is not possible, because each of the defendants is exposed to an independent liability imposed for different reasons.
3.10 This approach to analysing rights of contribution places a high degree of importance on maintaining distinct boundaries between the primary categories of legal rights. However, the simple answer must be that the courts will do the best they can, just as they do in apportioning liability in cases of contributory negligence which involve the apportionment of damages between tortfeasors and plaintiffs, using concepts like “responsibility” and “causation”.16 For example, the Alberta Institute of Law Research and Reform, while recognising that the rules relating to remoteness of damage and the measure of damages are not precisely the same in tort as in contract, observed that claims for contribution would only be available in respect of the same “overlapping damage, flowing from the overlap in liability, whether it arises in tort or in contract”. They concluded that there would not be any serious problems with extending rights of contribution to include wrongdoers other than tortfeasors.17 The Commission agrees with this conclusion.
The effect of concurrent liability
3.11 Situations can be envisaged where claims arising from damage may be founded on several other bases of liability in addition to tort. For example, in the Western Australian case of Biala Pty Ltd v Mallina Holdings Ltd the plaintiffs claimed equitable compensation for breach of fiduciary duty, damages under s 574(8) of the Companies (Western Australia) Code and damages in negligence,18 and in the New South Wales case of Williams v Minister, Aboriginal Land Rights Act 198319 the plaintiff claimed damages for negligent breach of duty and false imprisonment and also equitable compensation for breach of fiduciary duty.
3.12 The most significant area of development in recent years has, however, been the finding that duties in tort and contract may co-exist. Concurrent liability in tort and contract was found to be possible in the relationship between a solicitor and that solicitor’s client,20 a relationship previously governed exclusively by contract.21 The High Court has also held that the existence of a contractual relationship between a builder and client does not preclude the existence of a “duty of care under the ordinary law of negligence”.22
3.13 However, the possibility that concurrent duties in tort and contract may be found to exist in some cases does not mean that they will be found in all cases. There are duties imposed by the operation of the law of contract which will not be concurrent with any duty imposed by the law of tort. Obligations arising out of terms dealing with fitness for purpose or merchantibility would not generally be concurrent with duties imposed in tort.
3.14 In any event, where concurrent liabilities do exist in contract and tort the plaintiff can choose the head of liability under which he or she wishes to proceed subject to the operation of the express terms of any contract between the plaintiff and defendant. In Bryan v Maloney23 Chief Justice Mason and Justices Deane and Gaudron stated that some aspects of the relationship between duties in tort and contract were “helpfully and correctly explained” by Justice Le Dain of the Supreme Court of Canada in Central Trust Co v Rafuse.24 One of these explanations was as follows:
A concurrent or alternative liability in tort will not be admitted if its effect would be to permit the plaintiff to circumvent or escape a contractual exclusion or limitation of liability for the act or omission that would constitute the tort. Subject to this qualification, where concurrent liability in tort and contract exists the plaintiff has the right to assert the cause of action that appears to be most advantageous to him in respect of any particular legal consequence.25
The High Court now appears to have accepted the proposition stated in the last sentence to its fullest extent. In Astley v Austrust Ltd26 the Court held that a plaintiff can choose the basis of liability under which he or she will proceed against a defendant where the liabilities are concurrent. In such cases the causes of action in tort and contract do not merge. Potentially this gives a plaintiff the power, by claiming damages for breach of contract, to deny certain wrongdoers the right to claim contribution and, in effect, decide on whom the financial burden of the plaintiff’s damage will ultimately fall.
3.15 The expansion of tort liability into other areas of legal liability cannot, therefore, be relied on to alleviate the unfairness arising from the current limitation of rights to claim contribution to actions in tort.
Adding to the complexity of the law
3.16 Complexity may arise in the assessment of damages under different heads of liability. For example, the object of damages in contract is to put P in the position which P would have been in if the contract had been performed,27 which leads to the award of expectation damages,28 whereas, in tort, the object of damages is to put P in the position he or she would have been in if there had been no tort. Expectation damages are, therefore, not available in tort.29
3.17 The extension of rights of contribution to cases involving liability other than in tort will also lead to more cases in which multiple actions will be possible. The increase in multiple actions in itself will not be a problem so long as the joinder of all parties relevant to an action in one case is still encouraged.
The benefit of a contractual term limiting liability
3.18 An effect of extending contribution to non-tortious wrongdoers will be to alter, where some of the wrongdoers are liable in contract, existing private contractual arrangements by giving D1, a tortfeasor, a right of contribution against D2, whose breach of contract has caused the same damage to P.30 This intrusion into contractual arrangements has been viewed with concern by some.31
3.19 In DP 38, the Commission noted that its preferred option was to allow P to recover in full against the tortfeasor, D1, and to limit D1’s right to claim contribution from D2 according to the contractual limitation or exclusion agreed between D2 and P.32 There are a number of reasons for this conclusion:
1. It is consistent with the restitutionary nature of the law of contribution. D2 does not benefit unfairly when D1 is denied the ability to claim contribution. In circumstances where D2 owes, by contract, a reduced, or no, liability to P, D2 can receive no benefit by D1’s payment to P for the full loss suffered by P.33
2. It is not unfair to D1 because D1 would have been liable in any case if D1 alone had caused P’s loss and the price of the contractual limitation may have been factored into some other part of the contract. To allow D1 a right to contribution would be to allow D1 a benefit for which D1 paid nothing.34
Accordingly the Commission recommends that there should be explicit recognition that any defendant whose liability to the plaintiff in contract is limited by agreement, should have the full benefit of those contractual terms.
3.20 Most law reform agencies have chosen to respect the contractual arrangements agreed upon before liability was incurred.35 This approach has been adopted in England, following recommendations of the Law Commission,36 by s 2(3) of the Civil Liability (Contribution) Act 1978 (Eng)37 which provides as follows:
(3) Where the amount of the damages which have or might have been awarded in respect of the damage in question in any action brought in England and Wales by or on behalf of the person who suffered it against the person from whom the contribution is sought was or would have been subject to -
(a) any limit imposed by or under any enactment or by any agreement made before the damage occurred; ...
the person from whom the contribution is sought shall not by virtue of any contribution awarded under section 1 above be required to pay in respect of the damage a greater amount than the amount of those damages as so limited or reduced.
Determining the contributable sum
3.21 In DP 3838 the Commission considered the Ontario Law Reform Commission’s approach to determining the contributable sum between D1 and D2 in circumstances where there was a contractual limitation. The Ontario Commission’s solution was that:
. . . the fact that a wrongdoer’s liability to the injured person is limited should be ignored for the purpose of calculating the amount that she is liable to pay by way of contribution, except for the purpose of ensuring that her liability to contribute does not exceed the amount in which her liability to the injured person was limited.39
The English Law Commission recommended that this was the preferred method for calculating rights of contribution in these circumstances.40 We also adopt this approach.
Conclusions
3.22 The discussion above has highlighted some of the issues surrounding the proposal to extend the right to claim contribution to mixed concurrent wrongdoers. The conclusions in support of a legislative extension of the right to claim contribution are as follows:
- It is unfair to give a plaintiff the right to determine which wrongdoer must ultimately pay for the loss (which would be the case if choice of action were to fall to the plaintiff in cases of concurrent liability).
- It would be inappropriate to rely on the development of concurrent liability as the basis for defining the extent of rights of contribution.
- It is unfair that denying D1 a right to contribution in some circumstances would mean that D2, who is also liable, is unjustly enriched at D1’s expense.41
- There should be, as far as possible, a rational connection between a wrongdoer’s liability for the harm caused and the wrongdoer’s responsibility for that harm.
3.23 The case for expanding rights of contribution therefore focuses on the responsibility of D1 and D2 for causing the same harm to the plaintiff. If both the defendants cause the same harm to the plaintiff, the ultimate conclusion is that it is unjust for one of the defendants to be wholly responsible for compensating the plaintiff and the other not responsible at all.
3.24 The reform of rights of contribution between concurrent wrongdoers has been considered by a number of other law reform agencies. One of the central issues has been whether rights of contribution should be extended to mixed concurrent wrongdoers and each agency has recommended that they should be.42 In a number of cases, these recommendations have been adopted in the form of new legislation defining rights of contribution between wrongdoers.43
3.25 The Commission’s conclusion is that rights of contribution should be extended to mixed concurrent wrongdoers. However, the new legislation should indicate clearly that, in any contribution proceedings, where there is a contractual term limiting or excluding D2’s liability to P, D2 should retain the benefit of the exclusion clause.
Legislative implementation
3.26 In DP 38, the Commission considered two models for the implementation of the extension of rights of contribution to mixed concurrent wrongdoers, the English Civil Liability (Contribution) Act 1978 and the proposals of the New Zealand Law Commission.44
3.27 Section 1(1) of the Civil Liability (Contribution) Act 1978 (Eng) provides:
Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise).45
Further, s 6(1) provides:
A person is liable in respect of any damage for the purposes of this Act if the person who suffered it (or anyone representing his estate or dependants) is entitled to recover compensation from him in respect of that damage (whatever the legal basis of his liability, whether tort, breach of contract, breach of trust or otherwise).46
3.28 The New Zealand Law Commission proposal was as follows:47
3.29 DP 3849 noted that the New Zealand proposal was not as clear as the English provision in leaving open-ended the list of bases of liability to which the provisions apply.50 The New Zealand Law Commission has since accepted this criticism and has reformulated its proposed provision more in accordance with the English provision.51 We also confirm our preference for the English provision as the model for any legislative enactment extending rights of contribution to mixed concurrent wrongdoers.
Application of the legislative scheme
3.30 The extension of rights of contribution to mixed concurrent wrongdoers will necessitate a determination of whether the legislation will override existing contractual and equitable rights of contribution. Approaches to this have varied. The Ontario Law Reform Commission recommended that the legislative scheme should apply to all cases of concurrent wrongdoing, except for certain specific cases, including arrangements under the Ontario Workers Compensation Act.52 The English Civil Liability (Contribution) Act 1978 states that the statutory right to claim contribution shall not supersede any express contractual right to claim contribution and shall not affect “any express or implied contractual or other right to indemnity” or “any express contractual provision regulating or excluding contribution” which would be otherwise enforceable.53
3.31 The Commission regards it as obvious that, where statute establishes a general regime, that regime takes precedence only over general schemes.54 Express contractual provisions, where made, should also be allowed to take effect. However, to clarify any apparent uncertainty, the effect of express contractual provisions should be stated in legislation. The Commission considers that the relationship between the statutory provision and normal equitable rights of contribution could, in light of the development of equitable principles,55 become complex. The Commission has concluded that the equitable regime should remain expressly unaffected by the statutory regime, although we are mindful of the fact that equitable rights of apportionment, with an emphasis on the maxim “equality is equity”,56 may turn out to be more rigid in their application than the statutory regime which allows for apportionment according to what is “just and equitable having regard to the extent of that person’s responsibility for the damage”.
EXTENSION TO STATUTORY SCHEMES
3.32 There are a number of statutes which create specific causes of action without any reference to rights of contribution.57 The Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987 (NSW) are two such statutes;58 the Anti-Discrimination Act 1977 (NSW)59 is another. There are diverging opinions as to whether the causes of action created by such statutes are “torts” for the purposes of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) and subject to the right to contribution found in s 5(1)(c).60 Assuming that a breach of, say, s 42 of the Fair Trading Act 1987 (NSW), is not “a tort (whether a crime or not)”, then it cannot come within the terms of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). However, s 23A of the Wrongs Act 1958 (Vic) provides for contribution “whatever the legal basis of liability, whether tort, breach of contract, breach of trust or otherwise”. If s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) is amended along the lines of the Victorian provision, it would be sufficiently wide to include a breach, at least, of s 42 of the Fair Trading Act 1987 (NSW).61 The contribution regime would, therefore, extend to causes of action under the Fair Trading Act 1987 (NSW). However, this may still not be the case with respect to the Trade Practices Act 1974 (Cth), since it has been argued that, even if a breach of its provisions could be classed as a basis for liability or even a “tort”, the statutory right to contribution may not apply in the Federal jurisdiction because s 79 of the Judiciary Act 1903 (Cth) requires the Federal Court to apply only the “laws relating to procedure” of the State in which it is sitting. It is questionable that the laws relating to contribution can be classed as “relating to procedure”.62
3.33 The failure of the Fair Trading Act 1987 (NSW) to provide for any rights of contribution is a major gap in the law which can be simply remedied by the extension of the contribution regime to cover all concurrent wrongdoers. In DP 38, the Commission’s tentative proposal was to amend the Fair Trading Act 1987 (NSW) to provide for rights of contribution between concurrent wrongdoers.63 On reflection, the Commission is now not convinced of the need to make explicit provision in the Fair Trading Act 1987 (NSW) as this will not be necessary if our proposals to extend rights of contribution to all wrongdoers are implemented. Accordingly no such recommendation is made. The failure of the Trade Practices Act 1974 (Cth) to provide for any rights of contribution is a problem beyond the legislative competence of the New South Wales Parliament.
1. DP 38 para 4.2.
2. This is similar to the reasoning in Merryweather v Nixan (1799) 8 TR 186; 101 ER 1337. See England and Wales, Law Revision Committee, Third Interim Report (Cmd 4637, 1934) at 7.
3. Both of which may be derived, in general terms, from the decision of the High Court in Gala v Preston (1991) 172 CLR 243.
4. See also England and Wales, Law Revision Committee, Third Interim Report (Cmd 4637, 1934) at 7.
5. Gala v Preston (1991) 172 CLR 243.
6. K v P [1993] Ch 140; Bell Canada v Cope (Sarnia) Ltd (1980) 11 CCLT 170 (Ontario HC).
7. See New Zealand, Law Commission, Apportionment of Civil Liability: A Discussion Paper (PP 19, 1992) at para 178.
8. See J R Morris, Apportionment of Civil Liability (Legal Research Foundation Inc, Publication No 28, 1987) at 8-9.
9. But see, eg, Southgate v Commonwealth of Australia (1987) 13 NSWLR 188 which states that liability imposed by the Damage by Aircraft Act 1952 (NSW) is not a breach of duty and therefore not a “tort”.
10. See, eg, TAL Structural Engineers Pty Ltd v Vaughan Constructions Pty Ltd [1989] VR 545 at 556-557 per Kaye J with whom Hampel and Ormiston JJ agreed. In this case D1’s liability to P was based on the tort of breach of statutory duty and it was acknowledged that D1’s right of contribution from D2 could be founded on the basis of D2’s liability to P for either breach of a common law duty of care or breach of statutory duty.
11. Statutory Duties (Contributory Negligence) Act 1945 (NSW) s 2 and Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 7. Whether the defence of contributory negligence should be available raises different issues from those that are relevant in determining whether there should be a right to contribution for breach of statutory duty: see G L Williams, Joint Torts and Contributory Negligence (Stevens & Sons, London, 1951) at 357-361; R P Balkin and J L R Davis, Law of Torts (2nd edition, Butterworths, Sydney, 1996) at 147-148.
12. See Fleming’s rationale for the Damage by Aircraft Act 1952 (NSW): J G Fleming, The Law of Torts (9th edition, LBC Information Services, Sydney, 1998) at 372.
13. This would include situations where persons are in breach of separate contracts.
14. In the case of equitable rights of contribution, this assumption is an explicit part of the doctrine. In order to seek contribution in equity, defendants need to be under a co-ordinate liability to make good the one loss. The underlying principle of contribution is the requirement that each of the defendants be “equally bound” which is the basis for the right to be “equally relieved”. A right of contribution is, in this sense, a simple and unproblematic apportionment of responsibility between defendants who share the same kind of liability to the plaintiff.
15. Section 5(2) Law Reform (Miscellaneous Provisions) Act 1946 (NSW).
16. See Pennington v Norris (1956) 96 CLR 10; Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492. Cf Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65 at 68.
17. University of Alberta, Institute for Law Research and Reform, Contributory Negligence and Concurrent Wrongdoers (Report 31, 1979) at 50. See also England and Wales, Law Commission, Contribution (Working Paper 59, 1975) at para 47; and J R Morris, Apportionment of Civil Liability (Legal Research Foundation Inc, Publication No 28, 1987) at 9-11.
18. In the circumstances, however, the claim in negligence was dismissed: Biala Pty Ltd v Mallina Holdings Ltd (1994) 13 WAR 11 at 83.
19. (1994) 35 NSWLR 497.
20. Hawkins v Clayton (1988) 164 CLR 539 per Deane J at 579 and 585 and also Mason CJ and Wilson J at 543. See also Hill v Van Erp (1997) 188 CLR 159.
21. See Groom v Crocker [1939] 1 KB 194.
22. Bryan v Maloney (1995) 182 CLR 609 at 619 per Mason CJ, Deane and Gaudron JJ.
23. (1995) 182 CLR 609.
24. [1986] 2 SCR 147 at 204-205; 31 DLR (4th) 481 at 521-522.
25. Cited in Bryan v Maloney (1995) 182 CLR 609 at 622.
26. [1999] HCA 6 per Gleeson CJ, McHugh, Gummow and Hayne JJ. This concerned the potential application of the doctrine of contributory negligence in an action for breach of contract.
27. Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64.
28. See generally M J Tilbury, Civil Remedies Volume 2: Remedies in Particular Contexts (Butterworths, Sydney, 1993) at 267-269 and 283-284.
29. Though a claim in tort may yield what looks like expectation damages: consider, for example, Hill v Van Erp (1997) 188 CLR 159.
30. A similar argument applies to the extension of rights of contribution between tortfeasors and persons in breach of equitable obligations to P.
31. See, for eg, B Keene, “Law Commission Report: Apportionment of Civil Liability” [1998] New Zealand Law Journal 252.
32. DP 38 para 6.27.
33. Ontario Law Reform Commission, Report on Contribution Among Wrongdoers and Contributory Negligence (1988) at 124.
34. Ontario Law Reform Commission, Report on Contribution Among Wrongdoers and Contributory Negligence (1988) at 124.
35. Law Reform Committee of South Australia, Forty-second Report of the Law Reform Committee of South Australia to the Attorney-General, Relating to Proceedings Against and Contributions Between Tortfeasors and Other Defendants (1977) at 11-12; Law Reform Commission of Hong Kong, Report on the Law Relating to Contribution Between Wrongdoers (Topic 5, 1984) at para 8.2-8.6; and Ontario Law Reform Commission, Report on Contribution Among Wrongdoers and Contributory Negligence (1988) at 128. See also New Zealand, Law Commission, Apportionment of Civil Liability: A Discussion Paper (PP 19, 1992) at 105. Section 8(2)(b) of the New Zealand Law Commission’s draft legislation has fallen short of an express statement that contractual limitations are to have full effect: New Zealand, Law Commission, Apportionment of Civil Liability (Report 47, 1998) at para C17; see also B Keene, “Law Commission Report: Apportionment of Civil Liability” [1988] New Zealand Law Journal 252.
36. England and Wales, Law Commission, Law of Contract: Report on Contribution (Law Com 79, 1977) at para 71-74.
37. See also s 24(2A) of the Wrongs Act 1958 (Vic).
38. DP 38 para 6.31.
39. Ontario Law Reform Commission, Report on Contribution Among Wrongdoers and Contributory Negligence (1988) at 135.
40. England and Wales, Law Commission, Law of Contract: Report on Contribution (Law Com 79, 1977) at para 76-77.
41. D2 is not unjustly enriched if D2 has the benefit of a contractual limitation of liability: see para 3.19.
42. England and Wales, Law Commission, Law of Contract: Report on Contribution (Law Com 79, 1977) at para 81; Victoria, Chief Justice’s Law Reform Committee, Report on Contribution (1979); Scottish Law Commission, Report on Civil Liability: Contribution (Scot Law Com No 115, 1988) at para 3.5; Ontario Law Reform Commission, Report on Contribution Among Wrongdoers and Contributory Negligence (1988) at 73-75; New Zealand, Law Commission, Apportionment of Civil Liability: A Discussion Paper (PP 19, 1992) at para 99-104 and 175, adopted by New Zealand, Law Commission, Apportionment of Civil Liability (Report 47, 1998) at para 5; Manitoba Law Reform Commission, Scope of Apportionment under the Tortfeasors and Contributory Negligence Act (Informal Report 22A, 1992); Law Reform Committee of South Australia, Forty-second Report of the Law Reform Committee of South Australia to the Attorney-General Relating to Proceedings Against and Contributions Between Tortfeasors and Other Defendants (1977) at 10-11; Law Reform Commission of Hong Kong, Report on the Law Relating to Contribution Between Wrongdoers (Topic 5, 1984) at para 5.2-5.3; University of Alberta, Institute of Law Research and Reform, Contributory Negligence and Concurrent Wrongdoers (Report 31, 1979) at 40-52. See also Williams (1951) at 506-507; and J R Morris, Apportionment of Civil Liability (Legal Research Foundation Inc, Publication No 28, 1987) at 11.
43. See Civil Liability (Contribution) Act 1978 (Eng); Wrongs Act 1958 (Vic) Pt 4; Civil Liability Act 1961 (Ireland). The Irish Act was based almost entirely on recommendations for reform of the law of contribution made by Williams (1951).
44. New Zealand, Law Commission, Apportionment of Civil Liability: A Discussion Paper (PP 19, 1992) at para 50.
45. Similar provision is made in s 23B(1) of the Wrongs Act 1958 (Vic) which states that:
a person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage ... .
46. Similar provision is made in s 23A(1) of the Wrongs Act 1958 (Vic) which states that:
a person is liable in respect of any damage if the person who suffered that damage ... is entitled to recover compensation from the first-mentioned person in respect of that damage whatever the legal basis of liability, whether tort, breach of contract, breach of trust or otherwise.
47. New Zealand, Law Commission, Apportionment of Civil Liability: A Discussion Paper (PP 19, 1992) at para 50.
48. The provision does not apply to loss or damage arising wholly or partly from a failure to pay a debt or from the fault of two or more ships within the meaning of Part 14 of the Shipping and Seamen Act 1952 (NZ).
49. DP 38 para 6.40.
50. New Zealand, Law Commission, Apportionment of Civil Liability (Report 47, 1998) para 13.
51. New Zealand, Law Commission, Apportionment of Civil Liability (Report 47, 1998) at 16 (draft Civil Liability and Contribution Act (NZ) s 5).
52. RSO 1980, c 539.
53. Civil Liability (Contribution) Act 1978 (Eng) s 7(3).
54. Generalia specialibus non derogant.
55. See Walsh v Permanent Trustee Australia Ltd (NSW, Supreme Court, ED 2210/94, Hodgson J, 21 February 1997, unreported) at 5; Leigh-Mardon Pty Ltd v Wawn (1995) 17 ACSR 741 (NSW SC) at 751-753.
56. Aequitas est aequalitas: see R P Meagher, W M C Gummow and J R F Lehane, Equity: Doctrines and Remedies (3rd edition, Butterworths, Sydney, 1992) at para 329-330.
57. Other statutes, such as the Motor Accidents Act 1988 (NSW), which do not establish new causes of action do not need to be considered by this Report.
58. Many provisions of the Trade Practices Act 1974 (Cth) and Fair Trading Act 1987 (NSW) create independent causes of action, eg, in s 52 and 82 of the Trade Practices Act 1974 (Cth), the measure of damages is similar to that in tort: Gates v City Mutual Life Assurance Society Ltd (1985) 160 CLR 1. See also Fair Trading Act 1987 (NSW) s 42 and 68.
59. See s 113(1)(b)(i).
60. Australia and New Zealand Banking Group Ltd v Turnbull & Partners Ltd (1991) 33 FCR 265 which says that a breach of s 52 of Trade Practices Act 1974 (Cth) is not a tort; but see J C Campbell, “Contribution, Contributory Negligence and Section 52 of the Trade Practices Act – Part I” (1993) 67 Australian Law Journal 87 which states that the causes of action created by s 52 and s 82 of the Trade Practices Act 1974 (Cth) are either “torts” or a form of “statutory tort” and within the terms of s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). There is also a possibility that the courts may find a co-ordinate liability at law or equity which could give rise to a form of contribution under the Trade Practices Act 1974 (Cth): Re La Rosa; Ex Parte Norgard v Rodpat Nominees Pty Ltd (1991) 31 FCR 83; Trade Practices Commission v Manfal Pty Ltd (No 3) (1991) 33 FCR 382 at 385.
61. J D Heydon, “Damages under the Trade Practices Act” in P D Finn (ed), Essays on Damages (Law Book Company, Sydney, 1992) 42 at 53.
62. J D Heydon, “Damages under the Trade Practices Act” in P D Finn (ed), Essays on Damages (Law Book Company, Sydney, 1992) 42 at 53. Section 80 of the Judiciary Act 1903 (Cth) may also not be of assistance in filling the gap in the law of the Commonwealth with respect to contribution: see Pritchard v Racecage Pty Ltd (1997) 72 FCR 203.
63. DP 38 Proposal 9.
