Proportionate Liability Peter Rashleigh Partner DLA Phillips Fox

Suncorp Metway v Panagiotidis [2009] VSC 126

Apportionable Claim depends on facts not pleadings applies Solak v Bank of Western Australia contractual claim was an apportionable claim statutory claim against Registrar of Lands was not an apportionable claim relevant statute imposed a strict liability and had specific provisions which dealt with recovery by the Registrar against others query whether this conclusion would be different if the Registrar had, in fact, made an error in the registration process

Suncorp Metway v Panagiotidis [2009] VSC 126 "proceeding involving an apportionable claim“ should be interpreted broadly as meaning the proceeding which incorporates both claims and counterclaims. where a person is a party to one counterclaim in a proceeding, it will not be necessary for a defendant to another counterclaim to join them to that second counterclaim in order to obtain the benefit of proportionate liability

Suncorp Metway v Panagiotidis [2009] VSC 126 Pleading A party seeking to reduce its liability in reliance on proportionate liability legislation must fully plead: identity of concurrent wrongdoer; relevant conduct said to constitute wrongdoing; responsibility (liability) of that person for the ‘same loss’ claimed. follows line of other authority in Victoria and NSW

Suncorp Metway v Panagiotidis [2009] VSC 126 Default judgment Under s 25AL(2) of the Act: "The court is not to give leave for the joinder of any person who was a party to any previously concluded proceeding in relation to the apportionable claim". party seeking to invoke proportionate liability had previously obtained default judgment against alleged concurrent wrongdoers would preclude proportionate liability defence strategic error – Court suggested party apply to have default judgment set aside

St George Bank Ltd v Quinerts Pty Ltd [2009] VSCA 245

Concurrent Wrongdoer ‘A concurrent wrongdoer in relation to a claim is a person…whose acts of omissions caused…the loss or damage that is the subject of the claim’

St George Bank Ltd v Quinerts Pty Ltd [2009] VSCA 245 Concurrent Wrongdoer ‘A concurrent wrongdoer in relation to a claim is a person…whose acts of omissions caused…the loss or damage that is the subject of the claim’

St George Bank Ltd v Quinerts Pty Ltd [2009] VSCA 245 ‘the loss or damage that is the subject of the claim’ the damage caused by the concurrent wrongdoer and the damage caused by the party seeking to rely upon proportionate liability must be the ‘same damage’ akin to the concept of ‘same damage’ in contribution legislation requires a careful analysis of the precise nature of the damage flowing from the acts of each of the defendant and the asserted concurrent wrongdoer

St George Bank Ltd v Quinerts Pty Ltd [2009] VSCA 245 ‘the loss or damage that is the subject of the claim’ the ‘loss’ caused by the failure of the Borrower and/or Guarantor was the loss suffered by St George by reason of their to meet their contractual obligations to repay the sum owing under the loan agreement the ‘loss’ caused by the valuer was the loss which St George suffered by reason of its accepting inadequate security

St George Bank Ltd v Quinerts Pty Ltd [2009] VSCA 245 ‘the loss or damage that is the subject of the claim’ ‘loss’ caused by the Borrower and/or Guarantor ≠ ‘loss’ caused by the valuer

St George Bank Ltd v Quinerts Pty Ltd [2009] VSCA 245 care needs to be taken with describing the ‘loss’ caused by the valuer as being: ‘the loss suffered by reason of St George accepting inadequate security’ a better description of the loss caused by the valuer, based on the factual findings in the case, was: ‘the loss of principal, expenses and loss of use of money caused by St George’s decision to enter into the loan transaction’

St George Bank Ltd v Quinerts Pty Ltd [2009] VSCA 245 this decision does not stand for any general proposition that a Borrower will not be a concurrent wrongdoer the Borrower will be a concurrent wrongdoer where it engages in some conduct (such as supplying inaccurate financial information) which causes the lender to enter into the loan transaction that is, relevantly, the same loss caused by the valuer

Some construction issues Peter Rashleigh Partner DLA Phillips Fox scope of cover; conditions; exclusions

Council of the City of Wollongong v Vero [2009] NSWSC 475

Fire destroyed NES Hall in Wollongong Dispute as to Basis of Settlement agreed value ($322,000) full cost of reinstatement ($594,990) indemnity value ($758,365)

Council of the City of Wollongong v Vero [2009] NSWSC 475 Declared Value: stated in the “books of account or other records of the Insured” Adjustment of Premium Condition 1 – Misrepresentation & Non-Disclosure Extending Paragraph - “Notwithstanding Condition 1…the Insured shall not be prejudiced by any unintended and/or inadvertent error, omission or misdescription of risk…incorrect declaration of value…provided that…”

Council of the City of Wollongong v Vero [2009] NSWSC 475 Two Issues: Was the effect of the Adjustment of Premium clause such that the declared value could be adjusted to actual value on the happening of an insured event? Did the Extending Paragraph operated to provide the Insured with relief to the understatement of value in its accounts?

Council of the City of Wollongong v Vero [2009] NSWSC 475 Was the effect of the Adjustment of Premium clause such that the declared value could be adjusted to actual value on the happening of an insured event? NO: But Vero could not rely upon the Adjustment of Premium clause at the end of policy period where it had paid the claim based on the declared value

Council of the City of Wollongong v Vero [2009] NSWSC 475 Did the Extending Paragraph operated to provide the Insured with relief to the understatement of value in its accounts? NO: the Extending Paragraph only provided relief to the Insured where Vero sought to rely upon Condition 1. It had no effect on Vero’s reliance on the Basis of Settlement clause

Transfield Services v Hall; Hall v QBE (2009) ANZ Ins Cas

Transfield’s Liability Non-delegable duty Vicarious Liability Insurance Issues Identification of relevant ‘Product’ Business definition professional advice and service ‘advice for a fee’

Transfield Services v Hall; Hall v QBE (2009) ANZ Ins Cas Business definition ‘Business’ defined as "sale, installation & training of ropes confidence courses" Proposal disclosed that ATS ‘offer a maintenance inspection of the Ropes Courses we have installed’

Transfield Services v Hall; Hall v QBE (2009) ANZ Ins Cas Court held: ‘Business’ definition extends to activities ‘reasonably incidental to’ the listed activities The maintenance service provided was reasonably incidental to the sale & installation of those courses

Transfield Services v Hall; Hall v QBE (2009) ANZ Ins Cas Professional advice and service Policy excluded claims arising from the rendering or failure to render professional advice and service applied Vero Insurance Ltd v Power Technologies held that a similar exclusion was limited to claims made against the manufacturer/designer 'arising out of breaches of duty owed to persons who had retained it for work or services in the course of its business'. did not extend to breaches of duty owed to third parties who may suffer foreseeable loss or damage as a result of negligent acts or omissions No need to consider whether advice or service was ‘professional’ in nature (trial judge had held it was not)

Transfield Services v Hall; Hall v QBE (2009) ANZ Ins Cas ‘advice provided for a fee’ Work contracted to perform: Inspection + Maintenance + Certify as ‘safe to use’

Transfield Services v Hall; Hall v QBE (2009) ANZ Ins Cas ‘advice provided for a fee’ Majority held exclusion did not operate because: 1. the certification that the course was safe for use was 'no more than confirmation that it had carried out the inspection and maintenance task as requested';

Transfield Services v Hall; Hall v QBE (2009) ANZ Ins Cas ‘advice provided for a fee’ 2.to the extent that the communication by ATS that the course was safe can be characterised as 'advice' at all, it was so interwoven with and incidental to the insured business of ATS that to exclude it would strike fundamentally at the commercial purpose of the policy;

Transfield Services v Hall; Hall v QBE (2009) ANZ Ins Cas ‘advice for a fee’ 3.the exclusion clause would only operate to exclude liability for advice given for a fee where that advice was given pursuant to a separate professional engagement of ATS in the nature of a consultancy distinct from its maintenance function.

Transfield Services v Hall; Hall v QBE (2009) ANZ Ins Cas ‘advice for a fee’ 4.the tax invoice, which particularised a single fee for the work performed which was described as: 'Inspection, Maintenance and upgrade work for Endeavour Ropes Course', was inconsistent with the conclusion that ATS relevantly provided advice for a fee.

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