11—Substitution of sections 8 and 9
Sections 8 and 9—delete the sections and substitute:
Part 3—Apportionable liability
8—Limitation of defendant's liability in cases of apportionable
liability
(1) If a defendant's
liability on a claim for damages is apportionable, the liability is limited
under this section.
(2) If the limitation
applies, the defendant's liability is limited to a percentage of the
plaintiff's notional damages that is fair and equitable having regard
to—
(a) the
extent of the defendant's responsibility for the harm; and
(b) the
extent of the responsibility of other wrongdoers (including wrongdoers who are
not party to the proceedings) whose acts or omissions caused or contributed to
the harm.
(3) For the purpose of
subsection (2)—
(a) 2 or
more wrongdoers who are members of the same group are to be treated as a
single wrongdoer; and
(b) if
the plaintiff was guilty of contributory negligence, that contributory
negligence will be brought into account as wrongdoing and a percentage
assigned to it; and
(c) if 2
or more wrongdoers are each entitled to the benefit of a limitation of
liability under this section (for some reason other than that they are members
of the same group), the aggregate percentage assigned to them cannot
exceed—
(i)
if there is no contributory negligence on the plaintiff's
part—100%; or
(ii)
if there is contributory negligence on the plaintiff's
part—100% less a percentage representing the extent of the plaintiff's
responsibility for his or her harm.
(4) In a case
involving apportionable liability, the court must proceed as follows:
(a) the
court first determines the plaintiff's notional damages;
(b) the
court gives judgment against any defendant whose liability is not subject to
limitation under this section for damages calculated without regard to this
Part;
(c) the
court determines, in relation to each defendant whose liability is limited
under this section, a proportion of the plaintiff's notional damages
equivalent to the percentage representing the extent of that defendant's
liability;
(d) the
court then gives judgment against each such defendant based on the assessment
made under paragraph (c) (but in doing so must give effect to any special
limitation of liability to which any of them may be entitled).
Example—
A Ltd (which runs a forestry business) has engaged B (an independent
contractor) to protect its forest from fire. C (an arsonist) sets the forest
on fire. B is negligent in failing to detect and stop C's malicious act. A Ltd
sues B and C for damages. In this case, B would be entitled to a limitation of
liability under this section but C would not. In working out the amounts for
which judgment should be given, the court would determine first the amount of
damages necessary to cover the damage caused by the fire. Judgment for that
amount would be given against C. In determining the amount for which judgment
should be given against B, responsibility for the damage would be divided
between B and C on essentially the same basis as would formerly have been
applicable to an action for contribution between them. Judgment would be given
against B for an amount reflecting the proportionate responsibility assigned
to B on that basis.
(5) The plaintiff is
not entitled to recover, by way of damages under the judgment, more than the
amount fixed as the plaintiff's notional damages.
Example—
Suppose that A has suffered a loss of $1 000 for which B, C and D are liable.
The liability of B and C is limited to 20% and 30% respectively, but D's
liability is not limited. Judgment is therefore given against B for $200,
against C for $300 and against D for $1 000. In this case, the court would fix
$1 000 as the plaintiff's notional damages—thus limiting the damages
that the plaintiff is entitled to recover under the judgment to that amount.
If A proceeded first to recover in full against B and C, recovery against D
would be limited to $500. Conversely, recovery in full against D would
preclude recovery against B and C. But rights of contribution may
arise—see section 9.
(6) However, this
section does not affect the award of exemplary damages and, if such damages
are awarded, they may be recovered in the ordinary way from a defendant
against whom they were awarded.
9—Contribution
In a case in which the liability of one or more wrongdoers is limited under
this Part, the provisions of Part 2 regarding contribution apply but subject
to the following qualifications:
(a) no
order for contribution between wrongdoers whose liability is limited may be
made;
Exception—
Contribution will be allowed between wrongdoers who are members of the same
group, in respect of the liability of the group, in the same way (and subject
to the same exceptions) as apply under Part 2.
(b) no
order for contribution may be made in favour of a wrongdoer whose liability is
limited against a wrongdoer whose liability is not limited;
(c) no
order for contribution may be made in favour of a wrongdoer whose liability is
not limited ("A") against a wrongdoer ("B") whose liability is limited unless
A has fully satisfied the judgment debt, and, if such an order is made, the
amount of contribution awarded against B cannot exceed the amount of B's
liability for damages under the judgment.
10—Procedural provision
(1) If a defendant
entitled to a limitation of liability under this Part has reasonable grounds
to believe that a person who is not a party to the action may be liable on the
plaintiff's claim, the defendant must, as soon as practicable, provide the
plaintiff with information that is in the defendant's possession, or
reasonably available to the defendant (and not equally available to the
plaintiff), about—
(a) the
other person's identity and whereabouts; and
(b) the
circumstances giving rise to the other person's liability.
(2) If a defendant
fails to comply with its obligation under this section, a court may order the
defendant to pay costs incurred in proceedings that could have been avoided if
the obligation had been carried out.
(3) A court may order
that costs payable under this section be assessed on the basis of an
indemnity.
11—Separate proceedings
If a plaintiff brings separate actions for the same harm against wrongdoers
who are entitled to a limitation of liability under this Part, the judgment
first given (or that judgment as varied on appeal) determines for the purpose
of all other actions—
(a) the
amount of the plaintiff's notional damages; and
(b) the
proportionate liability of each wrongdoer who was a party to the action in
which the judgment was given; and
(c)
whether the plaintiff was guilty of contributory negligence and, if so, the
extent of that negligence.
Part 4—General provision