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* CLA s 35 Proportionate liability for apportionable claims>>
Lovick & Son Developments PL v Doppstadt Australia Pty Ltd [2012] NSWSC 529. Slattery J. 21.05.12.
From [254-257], "The defendants raise the concurrent liability provisions of the Civil Liability Act and the Trade Practices Act. The defendants relied upon Trade Practices Act, Part VIA and Civil Liability Act, Part 4. The purpose of these provisions is to visit on each concurrent wrongdoer only that amount of liability which the Court considers 'just' having regard to the comparative responsibilities of all wrongdoers for the plaintiff's loss: Yates v Mobile Marine Repairs Pty Ltd [2007] NSWSC 1463 at [93]- [94] and Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505; (2008) 13 BPR 25,343.[255] The Trade Practices Act, Part VIA and Civil Liability Act, Part 4 were enacted in relevantly identical terms. Both are deployed by the defendants to meet the plaintiffs' Trade Practices Act and the Fair Trading Act claims. Trade Practices Act, s 87CD(1), (3) and (4) provide as follows ... [256] The plaintiffs' claim in these proceedings is undoubtedly an 'apportionable claim', being a claim for damages underTrade Practices Act, s 82 and Fair Trading Act, s 42. Civil Liability Act, s 34(1)(b) applies Part 4 to contraventions of Fair Trading Act, s 42. It also arises from a "failure to take reasonable care" on the part of the defendants: Civil Liability Act, s 34(1)(a). I do not accept that the defendants' conduct involved an intentional deception of Mr Lovick. The representations made were a failure to take reasonable care. [257] Trade Practices Act, s 87CD and Civil Liability Act, s 35 are applied analogously with Law Reform (Miscellaneous Provisions) Act 1946, s 5: Yates v Mobile Marine Repairs Pty Ltd [2007] NSWSC 1463 per Palmer J at [94]. The principle is applied analogously to the assessment of contribution between tortfeasors which requires the Court to have regard to comparative culpability, of the acts of the parties causing the damage, the relative blameworthiness and relevant causal potency of the negligence of each party and the whole of the conduct of each party in relation to the circumstances of the loss by way of a comparative examination: Reinhold v New South Wales Lotteries Corporation (No 2) [2008] NSWSC 187 at [60] per Barrett J, Chandra v Perpetual Trustees Victoria Limited [2007] NSWSC 694 [110] and [111] and in Vinidex Tubemakers Pty Ltd v Thiess Contractors Pty Ltd [2000] NSWCA 67 at [29]. My approach to this apportionment exercise is similar to taken by Barrett J in Reinhold v New South Wales Lotteries Corporation (No 2) [2008] NSWSC 187 at [60] where his Honour described his principal task as making findings about (1) the degree of departure from the standard of care of the reasonable man as regards the causative conduct of the putative concurrent wrongdoer and the defendants, and (2) relative importance of the acts of the putative wrongdoer and the defendants in causing the economic loss suffered."
