Apportioning liability between defendants

By Resolve Editor Kate Tilley

Rockhampton barrister Steven Deaves KC make a quick addition to his Qld Insurance Intensive presentation when an important decision on apportioning liability between defendants was handed down that morning.

In Dearden v Ryan & Anor, Justice Graeme Crow awarded damages of $600,797.55 to a man who was badly burnt after being set alight while asleep in his swag at a 21st birthday party on a rural property at Jondaryan, near Toowoomba, Qld.

Justice Crow apportioned 30% to Terrence Bernard Ryan and Nicole Therese Ryan, the parents who hosted the party, and 70% ($420,558.29) to Robert Andrew Taylor, the friend who set Charles Oswald Dearden alight.

Fuel that was normally stored on an adjacent property was brought to the homestead to fuel a generator when the electricity failed early in the evening. Power was later restored and a jerry can that contained some residual fuel was then stored in a shed near the homestead.

Mr Taylor, who had consumed alcohol, decided after midnight to awaken Mr Dearden by setting fire to his swag “as a prank”. Instead he set fire to Mr Dearden who was severely injured.

Justice Crow said the Ryans knew there was a risk of a guest suffering burns from an uncontrolled fire when more than 100 young adults were at the party, some of whom were highly intoxicated. Before Mr Dearden was injured, a guest had lit a separate grassfire that was extinguished.

Justice Crow said the Ryans had “a duty to take reasonable care to prevent harm from an uncontrolled fire lit by an intoxicated guest from petrol made available” by them.

He said Mr Taylor’s actions were “entirely reckless and criminal”. However, he accepted Mr Taylor’s evidence he had not intended to harm Mr Dearden, merely to make him wake up and return to the party and they were good friends.

However, “acts of gross stupidity were not outside the realm of what could occur with such highly intoxicated young persons”.

Had the fuel been returned to safe storage, “five minutes’ drive away and therefore inaccessible to partygoers”, the incident would not have occurred.

Multiple defendants

In his presentation to delegates, Mr Deaves said governments had, over the last two decades, “probably unintentionally, created additional incentives to injured plaintiffs to join multiple defendants, making contribution between defendants a matter more frequently required to be considered by those representing defendants”.
 
He outlined cases involving the apportionment of liability between tortfeasors in personal injuries actions.

McCormack v Ethnic Community Care Links Inc [2017] QDC 102

Support worker Therese Gai McCormack was to accompany an Ethnic Community Care client to a hospital dental appointment.

She arrived at the hospital car park to find the grossly overweight client lying face down on the floor of a maxi taxi with his legs halfway out the door. In accordance with instructions received by phone, she comforted the client while waiting for help to extricate him from the cab.

Two male hospital orderlies attempted to pull the client out of the taxi while Ms McCormack was inside, kneeling near the client’s head. As he was being pulled, the client slipped or was dropped and Ms McCormack struck her shoulder on the leg of a taxi seat causing injury.

Qld District Court Judge Stuart Durward found Ethnic Community had breached its duty of care to Ms McCormack by failing to make proper transport arrangements for its client and failing to adequately instruct her once the situation arose.

Ethnic Community claimed against the hospital, alleging its employees had failed to appropriately deal with the client.

Judge Durward found Ethnic Community had failed to forewarn the hospital of its client’s visit and his circumstances and had “failed to demonstrate by any evidence what [the hospital] could or should have done”. Ethnic Community was therefore not entitled to indemnity or contribution from the hospital.

Smith v Randall & Anor [2016] QSC 191

The drivers of two separate vehicles in a collision each sued the other for damages for personal injury, requiring Qld Supreme Court Justice Peter Applegarth to compare “both culpability, that is the degree of departure from the standard of care required of the driver, and the relative importance of the acts of the parties in causing the damage”.

Paul Michael Randall was driving a utility west on a highway outside Toowoomba and Joshua John Smith was driving a milk truck in the same direction some distance behind him.

As Mr Randall approached his destination, he slowed to exit to his right, into a driveway, reducing his speed to about 10km/h and positioning his vehicle on the far right-hand side of the west-bound lane.

Mr Smith was aware of the utility but didn’t realise how slow it was travelling until he was about 100m away. He moved his truck into the east-bound lane to overtake the utility, assuming it had broken down, was travelling slowly or had stopped. He sounded his horn about 10m behind the utility and, at about the same time, the utility turned right, into the truck’s path. Both drivers were injured.

Mr Deaves said Justice Applegarth was “unimpressed” with the evidence of both drivers. He found Mr Randall had failed to indicate; failed to check his rear-view mirrors at all or until it was too late; was intoxicated by alcohol, which contributed to the collision; and had not rebutted the presumption of contributory negligence.

Mr Smith had failed to keep a proper lookout; driven too fast; and had no reasonable basis for overtaking the utility.

Justice Applegarth apportioned liability equally between both drivers.

Mr Deaves detailed several NSW cases that involved greater consideration of the principles in apportionment between tortfeasors.

Kabic v Workers Compensation Nominal Insurer (No 3) [2017] NSWSC 1281

Unskilled labourer Milan Kabic was working on a Redfern, Sydney, RSL club redevelopment when he was injured after falling from a raised platform.

He sued his employer, labour hire company Caringbah Formwork; principal site contractor Deicorp; and Deicorp sub-contractor Calcono, to whom Mr Kabic was hired.

The circumstances were disputed but NSW Supreme Court Justice Richard Button found Mr Kabic slipped on wet form-ply and there were no cross-braces or other structures on the platform on which he was working to break his fall.

Mr Kabic’s claim against his employer was dismissed because the circumstances were “highly specific to a particular time and place” such that “enquiries and inspections undertaken by [Caringbah] would have achieved little or nothing”.

The claim against the head contractor was dismissed because of the terms of the contract between the principal contractor and the host employer. There was no control by the head contractor and Mr Kabic was working in a relatively isolated area.

Justice Button found Calcono had breached its duty, which was akin to that of an employer, and it was liable for the entire loss.

Avopiling Pty Ltd v Bosevski [2018] NSWCA 146

Labourer Riste Bosevski was injured at an industrial worksite when he was struck by falling metal objects from a pile-driving rig.

He sued the site operator, which alleged contributory negligence by Mr Bosevski and contribution by the employer. The Workers’ Compensation Nominal Insurer, which stood in the shoes of the employer, launched proceedings against the site operator seeking indemnity. Both proceedings were heard together.

NSW Supreme Court Justice Stephen Rothman found the incident occurred because of the site operator’s negligence and the employer bore no liability because it could not have appreciated the risk of harm to Mr Bosevski.

The Appeal Court did not interfere with the judgement on the issues of liability. In particular, it found the site operator’s negligence lay in the way the pile-driving rig was set up and neither Mr Bosevski nor his employer were involved in or responsible for the set up. The employer did not and could not know of the risk of harm and no inquiry by them would have revealed the risk.

Accordingly, the site operator’s claims for contribution and indemnity against the employer were unsuccessful.

Standalone contribution proceedings

Mr Deaves said a defendant who accepts liability for a plaintiff’s injuries but cannot convince fellow tortfeasors to contribute has the option of settling with the plaintiff and pursuing standalone contribution proceedings.

He outlined the pros and cons of that action.
 
On the pro side, the defendant may enjoy some “halo effect” before the court because they may be seen to have “done the right thing” and be “on the injured plaintiff’s side”.

There may be cost advantages in reducing issues at trial and not being exposed to the plaintiff’s ongoing costs. The liability of the other defendants may not require much evidence, compared to a defendant who settles with the plaintiff.

On the negative side, the defendant has an onus to establish the settlement was reasonable. No such onus exists with a court adjudication on the defendant’s liability and/or the quantum of the plaintiff’s damages, although a respondent to the contribution claim can seek to establish that the quantum was excessive.

Mr Deaves said a practical difficulty arose because a defendant who has settled would likely need to call the plaintiff to give evidence on liability and/or quantum.

“Such evidence will have to be led in chief. It will be a rare set of circumstances where this course of action will be attractive. Proof of the plaintiff’s liability and quantum case would need to be relatively straightforward and the culpability of the remaining tortfeasors relatively clear cut,” he said.

“An alternative would be to admit liability on the pleadings and conduct the trial on quantum as a small target, only taking points about quantum that have real merit as opposed to simply putting the plaintiff proof. Such a tactic, accompanied by an appropriate UCPR and/or Calderbank offer, may produce the same pros as above but without the cons.”

Dearden v Ryan & Anor [2022] QSC 111 (2 June 2022)