South Australian Numbered Acts South Australian Numbered Acts5—Amendment of section 3—Interpretation
(1)
Section 3—before the definition of "claimant" insert:
"apportionable liability"—see subsection (2);
(2)
Section 3—after the definition of "damages" insert:
"defendant" includes a third party (that is, the defendant to a third-party
claim);
(3) Section 3,
definition of "derivative liability —delete the definition and
substitute:
"derivative liability" means—
(a) a
vicarious liability (including a partner's liability for the act or omission
of another member of the partnership); or
(b) a
liability of a person who is subject to a non-delegable duty of care for the
act or omission of another that places the person in breach of the
non-delegable duty; or
(c) if
an insurer or indemnifier is directly liable to a person who has suffered harm
for the act or omission of a person who is insured or indemnified against the
risk of causing the harm—the liability of the insurer or indemnifier; or
(d) a
liability as nominal defendant under a statutory scheme of third-party motor
vehicle insurance;
(4)
Section 3—delete the definition of
"fault";
(5)
Section 3—before the definition of "harm" insert:
"group"—a group consists of a person who is directly liable for a
particular act or omission and the person or persons (if any) who have a
derivative liability for the person's act or omission;
(6)
Section 3—after the definition of "harm" insert:
"innocent"—wrongdoing is innocent if the wrongdoer whose act or omission
actually caused the harm neither intended to cause harm nor was negligent in
causing harm;
"negligent wrongdoing" means—
(a) a
breach of a duty of care that arises under the law of torts; or
(b) a
breach of a contractual duty of care; or
(c) a
breach of a statutory duty of care that is actionable in damages or innocent
wrongdoing that gives rise to a statutory right to damages;
"notional damages"—a plaintiff's notional damages is the amount of the
damages (excluding exemplary damages) to which the plaintiff is, or would be,
entitled assuming—
(a) no
contributory negligence; and
(b) the
defendant were fully liable for the plaintiff's harm and were not entitled to
limitation of liability under—
(i)
this Act; or
(ii)
any other Act that limits the liability of defendants of
a particular class (as distinct from one that imposes a general limitation of
liability); or
(iii)
a contract;
(7) Section 3,
definition of "relevant statutory duty of care —delete the definition
and substitute:
"special limitation" of liability means a limitation of liability to which a
defendant is entitled under—
(a) an
Act (other than this Act) that limits the liability of defendants of a
particular class (as distinct from one that imposes a general limitation of
liability); or
(b) a
contract;
"wrongdoer" means—
(a) a
person who commits an act, or makes an omission, that causes or contributes to
harm (including a person whose act or omission contributes to his or her own
harm); or
(b) a
person who has a derivative liability for harm resulting from the act or
omission of someone else;
Note—
A person may be considered a wrongdoer even though the person—
• has died; or
• has been wound
up or has ceased to exist; or
• has become
insolvent; or
• cannot be
found.
"wrongdoing" means an act or omission that causes or contributes to harm
(including such an act or omission on the part of the person
who suffers the harm); and a reference to the "wrongdoing of a
wrongdoer" (or a "defendant") is to be understood as a reference to wrongdoing
for which that person is directly liable or for which that person has a
derivative liability.
(8)
Section 3—after the contents of section 3 as amended by this section
(now to be designated as subsection (1)) insert:
(2) A liability is an
"apportionable liability" if the following conditions are satisfied:
(a) the
liability is a liability for harm (but not derivative harm) consisting
of—
(i)
economic loss (but not economic loss consequent on
personal injury); or
(ii)
loss of, or damage to, property;
(b) 2 or
more wrongdoers (who were not acting jointly) committed wrongdoing from which
the harm arose;
(c) the
liability is the liability of a wrongdoer whose wrongdoing was negligent or
innocent.
Example—
A , who acts with intention to defraud, prepares a false and deceptive
statement. B, who is not aware of the fraud, negligently publishes the
statement to C, who relies on it and suffers financial loss in consequence. C
brings an action against A and B under section 56 of the Fair Trading
Act 1987 . In this case, B's liability is an apportionable liability but
A's is not.
(3) A liability to pay
exemplary damages is not however to be regarded as an apportionable liability.