South Australian Current Acts

CIVIL LIABILITY ACT 1936 - SECT 50R

50R—Continuity of institutions

        (1)         For the purposes of Division 4, it is sufficient that an institution (the "current institution") is substantially the same as it was at the time when the cause of action accrued (the "relevant time ).

        (2)         Without limiting the generality of subsection (1), the current institution is substantially the same as it was at the relevant time if the class or type of member and the primary purposes or work of the current institution are substantially the same as they were at the relevant time.

        (3)         Subsections (1) and (2) have effect regardless of whether, after the relevant time—

            (a)         the name of the institution changed; or

            (b)         the organisational structure of the institution changed; or

            (c)         the institution became incorporated; or

            (d)         the geographic area in which the members of the institution carried out the purposes or work of the institution changed.

        (4)         If there is no institution that is the same institution, or substantially the same institution, as the institution at the relevant time (the "old institution"), a relevant successor of the old institution is taken to be the same institution as the old institution.

        (5)         For the purposes of subsection (4), an institution (also the "current institution ) is a relevant successor of the old institution if—

            (a)         all or part of the old institution merged into the current institution; or

            (b)         all or part of the old institution merged with 1 or more other entities to form the current institution; or

            (c)         the current institution is the remainder of the old institution after part of the old institution ceased to be part of the old institution; or

            (d)         in a case in which there is at least 1 institution interposed, over time, between the old institution and the current institution—at least 1 of the following circumstances applies to each link in the chain between the old institution and the current institution:

                  (i)         all or part of an earlier institution merged into another institution;

                  (ii)         all or part of an earlier institution merged with 1 or more other entities to form another institution;

                  (iii)         an institution is the remainder of an earlier institution after part of the earlier institution ceased to be part of the earlier institution;

                  (iv)         an institution as it is at a particular time is substantially the same as it was at an earlier time.

        (6)         If more than 1 institution (a "current institution") is a relevant successor of the old institution the following applies:

            (a)         each current institution is jointly and severally liable for the abuse of a child by a person associated with the old institution while the child was under the care, supervision, control or authority of the old institution;

            (b)         a current institution which is a relevant successor of the old institution may recover contribution from another current institution which is also a relevant successor of the old institution;

            (c)         an action for contribution may be brought—

                  (i)         by way of third party proceedings, or proceedings between the parties, in an action in which damages are sought from the institution entitled to contribution; or

                  (ii)         by way of a separate action brought against the institution from which contribution is sought;

            (d)         if it is fair and equitable to do so, a court may exempt an institution from liability to make contribution or order that the contribution to be recovered is to amount to a complete indemnity;

            (e)         an action for contribution may be brought even though—

                  (i)         judgment in an action in which damages are sought for the relevant abuse has not yet been given; or

                  (ii)         the person who suffered the abuse has released the institution from which contribution is sought from liability or has obtained judgment against that institution; or

                  (iii)         a notice that would be required if the person who suffered the abuse were to obtain a judgment against the institution from which contribution is sought has not been given; or

                  (iv)         the time within which the person who suffered the abuse could have commenced an action against the contributory has expired;

            (f)         despite paragraph (e)—

                  (i)         if an institution is liable to indemnify another institution against that other institution's liability, the institution is (to the extent of the liability to indemnify) not entitled to contribution from the other institution under this section; and

                  (ii)         a contractual limitation or exclusion of liability operates to limit or exclude an entitlement to contribution under this section if—

                        (A)         it arises from a contract made before the occurrence of the act or omission that gave rise to the liability; and

                        (B)         it would, assuming the institution who suffered primary harm had brought an action for damages against the institution from which contribution is sought, have limited or excluded that institution's right to recover damages;

            (g)         a court may determine any action for contribution according to what is fair and equitable in all of the circumstances.

        (7)         In this section—

"contributory" means the institution (or institutions) seeking contribution under this section and the institution (or institutions) from which contribution is sought.