Australia: Proportionate or disproportionate liability?

Legal Directions - April 2011
Last Updated: 13 April 2011
Article by Dominic Nguyen and Janice Nand

GEJ & MA Geldard Pty Limited v Mobbs & Ors (No 2) [2011] QSC 33

The Supreme Court of Queensland has held that two defendants were liable for 100% of the damages assessed, without taking into account the settlement reached between the plaintiff and the other six defendants before the trial.

The two liable defendants argued that their liability should be reduced pursuant to the proportionate liability provisions contained in the Civil Liability Act 2003 (Qld) ('CLA')1. They were unsuccessful.


In March 2007, the plaintiff, a Condamine cotton grower, sued eight defendants alleging negligence in relation to the carrying out of the aerial spraying of various chemicals to control regrowth on neighbouring properties. The plaintiff alleged that the negligence of all of the defendants resulted in economic loss due to the damage to its cotton crop and the consequent drop in yield.

Before the trial, the plaintiff settled the action against all of the defendants except for the sixth defendant, the aerial spraying company, and the eighth defendant, the pilot / director of the sixth defendant. Thus the action proceeded to trial against the sixth and eighth defendants only.

Justice A. Lyons found that the sixth and eighth defendants had each breached duties of care owed to the plaintiff when they carried out extensive aerial spraying of various herbicides on neighbouring properties. Her Honour was satisfied that the herbicides had been sprayed in inappropriate conditions and were not mixed to the correct ratios. Her Honour found that  the spraying caused loss to the plaintiff's cotton crops in the amount of $467,187.45.

The matter was then further listed for Her Honour to hear argument regarding proportionate liability as between all of the defendants, and the effect of the pre-trial settlement.


After determining that the plaintiff's claim against the defendants was an 'apportionable claim' because it was for economic loss suffered as a result of damage to property caused by a breach of a duty of care, Her Honour considered the critical issue of who bore the onus of proof in relation to the limitation of the liability of a defendant under the proportionate liability provisions.

The sixth and eighth defendants argued that the plaintiff continued to bear the onus of proving its case. Accordingly, the plaintiff needed to prove all of the necessary facts to satisfy the court that a particular defendant is liable to it, and also the amount or proportion of damages it should pay.

The plaintiff argued that the onus fell on the defendants because its case against the sixth and eighth defendants based on negligence had succeeded. In essence, the plaintiff's argument was that if the sixth and eighth defendants wished to have the benefit of a limitation on their liability, then they should bear the onus of pleading and proving the elements of that limitation.

Justice A. Lyons considered that the CLA did not change the general rule that the onus is on a defendant to plead and prove a defence.

Since the plaintiff had established that the sixth and eighth defendants caused the loss and the amount of damages for which they should be responsible, it was for the defendants to prove that the damages should be reduced because there may have been other concurrent wrongdoers whose acts or omissions, independent of the liable defendants, may have caused or contributed to the plaintiff's loss or damage.

Next, Her Honour had to consider if the sixth and eighth defendants satisfied the onus.

The critical question was what facts had been proved in relation to the liability of the other defendants. In answering this question, Her Honour noted that a significant difficulty was that none of the other defendants gave evidence at the trial.

Justice A. Lyons stated that no findings had been made in respect of the other defendants to identify any of those defendants as concurrent wrongdoers. Alternatively, even if it was accepted that pleadings could be relied upon, Her Honour did not consider that the pleadings established any of those defendants as concurrent wrongdoers. Accordingly, the sixth and eighth defendants failed to show that the other defendants were concurrent wrongdoers, and so their claim for apportionment pursuant to the proportionate liability provisions failed.


If the other defendants had made payment to the plaintiff under a 'judgment' as opposed to a settlement, then the judgment amount would have been deducted from the plaintiff's award of damages against the liable defendants.

It would appear that this decision may have resulted in the plaintiff being awarded a windfall. Not only was the plaintiff entitled to recover the full amount of its assessed loss from the sixth and eighth defendants, the plaintiff also received the benefit of the settlement reached with the other defendants. The terms of the settlement have remained confidential.

As the other defendants were found not to be concurrent wrongdoers, the liable defendants would be entitled to claim contribution from them under the Law Reform Act 1995 (Qld). It remains to be seen whether they will.

If a defendant wishes to reduce its liability on the basis that other parties contributed to the loss then the defendant has the onus of proving that the other parties have a liability. As demonstrated by this case, that may be difficult if those parties are not required to give evidence at the trial.


1 This decision concerned sections 30, 31 and 32B of the CLA. Other jurisdictions have similarly worded provisions, see, ss 34, 35 and 37 of the Civil Liability Act 2002 (NSW), ss 24AH, 24AI and 24AK of the Wrongs Act 1958 (Vic), ss 5AI, 5AK and 5AM of the Civil Liability Act 2002 (WA), ss 3, 8 and 12 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act  2001 (SA), ss 43A, 43B and 43E of the Civil Liability Act 2002 (Tas), ss 107D, 107F and 107I of the Civil Law (Wrongs) Act 2002 (ACT) and ss 6, 9/13 and 16 of the Proportionate Liability Act 2005 (NT).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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