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Law Reform (Civil Liability) Act 2009

Commencement: 09/11/2009

REPUBLIC OF VANUATU
Law Reform (Civil Liability)
Act No. 28 Of 2009

Arrangement of Sections

PART 1. PRELIMINARY
1 Interpretation
2 Act Binds State
3 Contracting Out
4 Application

PART 2. APPORTIONMENT
5 General Principles
6 Legal Proceedings
7 Effect of Judgments and compromises
8 Powers of the court
9 Commencement

REPUBLIC OF VANUATU

Assent: 19/10/2009
Commencement: 09/11/2009

LAW REFORM (CIVIL LIABILITY)
Act No. 28 of 2009

An Act to amend certain aspects of the common law and to provide for apportionment of liability in damages for civil wrongs, and for related purposes.

Be it enacted by the President and Parliament as follows-

PART 1. PRELIMINARY

1. Interpretation

In this Act unless the contrary intention appears:

civil wrong includes any cause of action:

(a). in tort; or

(b). founded on, or resulting from, a breach of a contractual or statutory duty of care that is concurrent with and coextensive with a duty of care in tort, and for which damages is an available remedy;

compromise includes a consent judgment and any settlement of a civil wrong, whether or not proceedings have been, or could have been, brought;

concurrent wrongdoer means each of two or more wrongdoers whose acts or omissions gave rise, wholly or partly, to the same loss and corresponding entitlement to damages, including by way of vicarious liability;

damages refers to damages awardable in respect of a loss resulting, wholly or partially, from a civil wrong but excludes exemplary damages;

judgment includes a consent judgment;

victim means a person who has suffered any loss by the commission of a civil wrong;

wrongdoer means:

(a). a person whose acts or omissions amounted to the commission of a civil wrong which gave rise, wholly or partly, to a loss and a corresponding entitlement to damages; and

(b). who is or becomes joined to the proceedings mentioned in subsection 6(1).

2. Act Binds State

This Act binds the State.

3. Contracting Out

An agreement may contain a provision by which a provision of this Act is excluded, modified or restricted and this Act does not limit or otherwise affect such provision.

4. Application

This Act applies to any act or omission amounting to a civil wrong occurring after its commencement.

PART 2. APPORTIONMENT

5. General Principles

(1). Damages awardable to a victim as a result of a civil wrong are apportionable as between concurrent wrongdoers in such manner and proportion as is just and equitable having regard to:

(a). all the circumstances of the act or omission comprising the civil wrong; and

(b). the relative culpability of each concurrent wrongdoer; and

(c). the relative rights and obligations of concurrent wrongdoers arising from any contract or other Act; and

(d). subject to section 7, any payments already made, or ordered to be made, by a wrongdoer or concurrent wrongdoer in respect of the act or omission comprising the civil wrong, whether as a result of a judgment or compromise.

(2). The liability in damages of concurrent wrongdoers is joint and several unless an order under subsection (1) is made.

(3). Nothing in this section operates to defeat any right, defence or other limitation as to time or quantum of damages, arising under a contract or any other Act.

6. Legal Proceedings

(1). A wrongdoer or concurrent wrongdoer may seek an order under subsection 5(1) and recover a contribution to damages from a concurrent wrongdoer in:

(a). proceedings brought by or through the victim; or

(b). any other proceedings brought by a wrongdoer against a concurrent wrongdoer in respect of the same civil wrong where the latter was not a party to proceedings brought by or through the victim.

(2). Despite subsection (1):

(a). an order must not be made against a non-party in the relevant proceedings; and

(b). any defence that would have been available but was not raised against a victim in proceedings under paragraph (a) shall be available to a concurrent wrongdoer against another wrongdoer in proceedings under paragraph (b).

(3). A party seeking an order under subsection 5(1) must:

(a). in the appropriate statement of the case, refer to such persons, facts and particulars as may be necessary to address the matters in paragraphs 5(1)(a), (b), (c) or (d); and

(b). apply to join all concurrent tortfeasors against whom apportionment is sought by the party and who are not already parties.

(4). Further to paragraph (2)(a) it shall not be necessary to state the amount or percentage of apportionment sought.

7. Effect of Judgments and compromises

(1). In a proceeding brought by a concurrent wrongdoer under paragraph 6(1)(b), an order under subsection 5(1) on the merits in a prior proceeding brought by or through the victim against any concurrent wrongdoer is conclusive evidence, in the absence of fraud or collusion, of the liability of that other concurrent wrongdoer to the victim and of the quantum of damages for which that other concurrent wrongdoer is liable to the victim.

(2). A compromise between a victim and a wrongdoer is not a defence to a proceeding brought under paragraph 6(1)(b) and does not affect an apportionment of loss for the purposes of such proceeding..

8. Powers of the court

(1). A court of competent jurisdiction may give effect to an apportionment under subsection 5(1) by making an order that:

(a). particular amounts be paid to a victim or into court; or

(b). payment of contribution should be postponed, pending further order.

(2). The Chief Justice may make such rules of court with regard to practice and procedure as are necessary or convenient to give effect to this Act.

9. Commencement

This Act commences on the day on which it is published in the Gazette.