Concurrent liability

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Concurrent liability is the principle that multiple defendants can be liable for the same damage. A plaintiff can thus bring an action against multiple defendants, who are liable for their proportionate share.

This article is a topic within the subject Torts.

Contents

Required Reading

Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009), pp. 607-617 [15.05-15.55]; 621-635 [15.70-15.115]; 635-647 [15.115-15.140]; 653 [15.185]; 655-6 [15.200].

Introduction

[1] There are different forms of concurrent liability:

  • Joint enterprise
  • Vicarious liability
  • Non-delegable duties
  • Multiple torts causing the same damage

Joint-enterprise

[2] This is where two parties are negligent together in a "joint act done in the pursuance of a concerted purpose[3] ". For example, two people inspecting a gas pipe together and causing it to set alight.[4]

Vicarious liability

Dedicated page: Vicarious liability

[5] Vicarious liability is the imposition of liability on an otherwise blameless party who has some sort of responsibility over the tortfeasor. For example, an employer will generally be vicariously liable for the negligence of his employees.

Vicarious liability will only be imposed if:

  1. There is a requisite relationship between the defendant and the tortfeasor
  2. The negligence occurred within the course of employment.
  3. The tortfeasor's conduct was tortious (as in, passes the usual tests of negligence)

Non-delegable duties

Dedicated page: Non-delegable duties

[6] A non-delegable duty is a duty which cannot be assigned to someone else. This means that when one owes a non-delegable duty towards another, he has a duty not only to take reasonable care himself, but ensure that others take reasonable care (since he cannot discharge his duty by 'delegating' or transferring it to others).[7]

  • As a result, a defendant who owes a non-delegable duty will be liable for the wrongdoing of others even if they are independent contractors.

Multiple torts

[8] Sometimes, several defendants inflict individual torts upon a plaintiff, causing separate damages. If the torts and damages are separately identifiable, each tortfeasor is responsible for his individual action and damage. However, if the damage is not separately identifiable, all the defendants are liable for the entirety of the damage (to be split between them obviously, the plaintiff does not get double damages).

Part 4 of the Civil Liability Act 2002 provides that that economic loss or damage caused to property is apportioned between the individual defendants (see below).

Proportionate liability

[9] Proportionate liability applies in cases of property damage or economic loss.[10] The tortfeasors will only be liable for the proportion of the harm which they have caused, under what is just and equitable.[11]

  • This is distinguished from solidary liability, where each tortfeasor would be liable for all of the damage (note, this does not mean that the plaintiff can obtain double remedies. It merely means that if one of the tortfeasor's is unable to compensate, the other one will have to compensate for that damage).

Contributory negligence is deducted before the calculation of proportionate liability.[12] A defendant must inform the plaintiff of other concurrent wrongdoers if it wishes to apportion liability.

End

This is the end of this topic. Click here to go back to the main subject page for Torts.

References

Textbook refers to Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009).

CLA refers to Civil Liability Act 2002 (NSW)

  1. Textbook, p. 608 [15.10]
  2. Textbook, p. 608 [15.15]
  3. Brooke v Bool [1928] 2 KB 578, 585 (Salter J)
  4. Brooke v Bool [1928] 2 KB 578
  5. Textbook, pp. 608-9 [15.20]
  6. Textbook, pp. 609 [15.20]; 634-5 [15.115]
  7. Burnie Port Authority v General Jones P/L, (1994) 179 CLR 520, 550; New South Wales v Lepore (2003) 212 CLR 511, 528, 530
  8. Textbook, p. 609 [15.30]
  9. Textbook, pp. 653 [15.185]; 655-6 [15.200]
  10. CLA, s 34. Part 4 of the CLA concerns proportionate liability.
  11. CLA, s 35.
  12. CLA, s 35
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