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Proportionate Liability: A decade of clarity or confusion?

Source: Asia Insurance Review | Dec 2014

Ten years ago, reforms were made to the proportionate liability sector. This year, two court cases with conflicting judgments on what constitutes an apportionable claim throws up a confusion. Ms Jenni Priestley, Ms Janette McLennan and Ms Kate Benjamin, from Clyde & Co, Australia, elaborate. 

In mid-2004, proportionate liability reform became effective in Australia, removing joint and several liability for certain causes of action. 
 
Under the old system, the insolvency risk associated with other wrongdoers fell on the defendant against whom the plaintiff successfully sued and elected to recover judgment, which unfairly meant a single defendant could bear 100% of a loss notwithstanding that the acts of another wrongdoer caused the same damage. 
 
It was hoped by many that reform would address the crisis of high claim costs associated with liability insurance, by removing the burden faced by “deep pocket” defendants routinely targeted in litigation, despite others also causing the same loss and damage which was the subject of a claim. This article explores the impact of the reforms on claims against financial services professionals.
 
2004: Changes to the law become effective 
The key reforms (which remain in force) were implemented in New South Wales (NSW) in 2004, making claims for economic loss or damage to property arising from a failure to take reasonable care in contract, tort or otherwise (Section 34(1)(a) of the Civil Liability Act 2002 (NSW), which applies only to liability arising after 26 July 2004. Importantly, the proportionate liability provisions do not apply to personal injury claims), or in an action for damages for misleading and deceptive conduct under consumer protection laws, apportionable claims whereby liability is apportioned to each wrongdoer according to the Court’s assessment of the extent of their responsibility. 
 
At the Commonwealth level, amendments were also made to the Australian Securities and Investments Commission Act 1974 (Cth) (ASIC Act), the Corporations Act 2001 (Cth) (Corporations Act) and the Trade Practices Act 1974 (Cth) (TPA) (which has since been replaced by the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law) to introduce proportionate liability in relation to claims for misleading and deceptive conduct. 
 
Where the reforms apply, the plaintiff is now obliged to join all alleged concurrent wrongdoers to an action, rather than leaving it to the defendants to bring in others by way of cross-claims for indemnity and/or contribution.
 
What is an apportionable claim?
The relevant statutory provisions in all Australian jurisdictions are in similar terms in identifying what is a single apportionable claim. The loss or damage caused by the various wrongdoers must be the same, even if “the claim for that loss or damage is based on more than one cause of action (whether or not of the same or a different kind)”.
 
Those words were subject to intense judicial scrutiny in May 2014 and early June 2014, when two conflicting judgments were delivered by two differently constituted benches of the Full Federal Court considering whether certain claims were apportionable, in Wealthsure Pty Limited v Selig [2014] FCAFC 64 (Wealthsure) and ABN AMRO Bank NV v Bathurst Regional Council [2014] FCAFC 65 (ABN AMRO). 
 
In Wealthsure, a majority held that in proceedings which involve both an apportionable claim under the Corporations Act (being a claim for damages for a contravention of the misleading and deceptive conduct provision of that Act in relation to a financial product or a financial service) and a claim that is not apportionable, and the same loss and damage has resulted from both causes of action, the claim maintains its character as an apportionable claim in its entirety. 
 
White J dissented, holding that the relevant statutory provision which stipulates that “there is a single apportionable claim in proceedings in respect of the same loss or damage even if the claim for the loss or damage is based on more than one cause of action (whether or not of the same or a different kind)” refers only to causes of action themselves which are apportionable claims and does not extend to statutory provisions which were deliberately omitted by the legislature as falling within the regime. 
 
That dissenting position gained unanimous support in the second decision delivered by the Full Federal Court in ABN AMRO a week later. 
 
The decisions in Wealthsure and ABN AMRO were made against the backdrop of the High Court of Australia’s leading decision on proportionate liability delivered a year ago in Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd and Others (2013) 247 CLR 613 (Hunt & Hunt). 
 
In that case (which has wider application than just misleading and deceptive conduct), the court considered whether, in order for liability for “damage” to be apportioned to a concurrent wrongdoer, that damage must be “caused” by each concurrent wrongdoer and what analysis the court should undertake in making that assessment. 
 
In a split 3-2 decision, the majority of the High Court concluded that a wrongdoer’s acts may be independent of those of another wrongdoer and yet be said to cause the same damage for the purposes of apportionment.
 
Key messages
It may be some time before there is clarity on the contradicting decisions of Wealthsure and ABN AMRO in respect of misleading and deceptive conduct claims involving financial services and financial products. 
 
Despite widespread anticipation that the decisions would be appealed and even possibly heard together by the High Court, to the authors’ knowledge, there has been no appeal from either decision. The absence of any High Court authority resolving the conflict means that alleged wrongdoers (and by implication, insurers of those alleged wrongdoers) will continue to face uncertainty in terms of how far the proportionate liability regime extends in financial services 
cases.
 
It is clear that ten years into the regime, the law of proportionate liability in Australia is still very much in the development phase. It has been largely successful in simplifying the often unfair burden created by allocation of loss under the joint and several liability system. However, part of the mischief the regime was also designed to remedy was the complexity of litigation resulting from the net being cast so widely with too many unnecessary parties being joined to litigation. 
 
It is harder to draw the line on joinder given the conflicting authority that has resulted from Wealthsure and ABN AMRO and the confusion which follows. As a result it appears that Australia may well be in for a few more years of confusion before clarity (likely in the form of further High Court authority) on proportionate liability can prevail.
 
Ms Jenni Priestley is a Partner, Ms Janette McLennan is a Senior Associate and Ms Kate Benjamin is an Associate, at Clyde & Co, Australia.
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