The Supreme Court of Queensland considered two separate applications in respect of proportionate liability and the ability to withdraw a number of express and deemed admissions.
In issue
- The Supreme Court of Queensland considered two separate applications, one being an application by the plaintiff to strike out the defendant’s proportionate liability defence, and an application by the defendant to withdraw a number of express and deemed admissions in its defence.
The background
The plaintiff operates an asbestos removal business. The defendant is a licenced insurance broker. The plaintiff’s claim against the defendant was for damages for alleged negligence, breach of contract and breach of statutory duties regarding the defendant’s provision of broking services to the plaintiff in 2020.
Concurrent Wrongdoers
In August 2020, the plaintiff entered a building contract with the State of Queensland to perform 'asbestos remediation work and associated works'. In the progress of the contract, the plaintiff 'completed placement and spread of imported new landfill'. The plaintiff was later notified by the State of Queensland that the new landfill was contaminated with asbestos and asked to rectify the situation. The plaintiff submitted a claim under its policy of insurance which was subsequently rejected. The plaintiff alleged negligence against the defendant in not obtaining insurance that would cover the claim made by the State of Queensland.
The plaintiff had retained Coastal Soil to supply the relevant topsoil/landfill. In an environmental assessment report, it was found that the topsoil provided by Coastal Soil was contaminated with asbestos. The defendant therefore contended that Coastal Soil was a concurrent wrongdoer, as it was responsible for the asbestos contamination. The plaintiff submitted that the proportionate liability pleading should be struck out on the basis that Coastal Soil did not contribute to the same damage or loss that the plaintiff could allege against the defendant, and therefore could not be considered a concurrent wrongdoer.
Deemed and Express Admissions
The defence included various express and deemed admissions. The defendant contended that those admissions were made in error due to the fact that its South Australian-based lawyer did not comply with the pleading requirements under the UCPR. The defendant applied to the court for leave to withdraw both the express and deemed admissions.
The decision at trial
Concurrent Wrongdoers
The court agreed with the defendant that Coastal Soil was arguably (as liability had not been established against either party) a concurrent wrongdoer and the strikeout application was unsuccessful. In coming to this decision, the court relied upon the High Court authority of Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613.
In arriving at the decision, the court considered two questions needed to be answered:
- What is the damage or loss that is subject of the claim; and
- Is there a person, other than the defendant, whose acts or omissions also caused that damage or loss?
As to the first question, the court considered the harm suffered by the plaintiff as a consequence of the defendant’s alleged negligence, and the harm suffered by the plaintiff as a consequence of the possible negligence by Coastal Soil. As for the claim against the defendant, the court held that the harm suffered by the plaintiff was the plaintiff’s inability to recover rectification and other costs incurred. As for the hypothetical claim against Coastal Soil, the court held that the harm suffered by the plaintiff was the plaintiff’s liability for rectification and other associated costs. The court therefore held that the loss suffered by the plaintiff was the liability for rectification and other costs (that is, the same loss), with two possible sources of recovery for that loss, being the insurer and Coastal Soil.
As to the second question, the court considered that based on its analysis of the first question, it was plain that Coastal Soil also caused the plaintiff’s liability to pay rectification and other associated costs. On that basis, the strike-out application was dismissed.
Deemed and Express Admissions
The court primarily accepted the defendant’s submissions and gave leave to withdraw the majority of the express and deemed admissions made. In exercising this broad discretion (pursuant to rule 188 of the Uniform Civil Procedure Rules 1999 (QLD)), the court relied upon a number of factors, including the sworn evidence required to verify the circumstances justifying the grant of leave (Ridolfi v Rigato Farms Pty Ltd [2000] 2 Qd R 455 at [19), any delay in making the application for leave to withdraw the admission and whether that delay was explained (Medina v Electro Industry Group Queensland Limited [2019] QSC 63 at [46]), and prejudice to the other party (Ridolfi v Rigato Farms Pty Ltd [2000] 2 Qd R 455, Hanson Construction Materials Pty Ltd v Norlis & Or [2010] QSC 34 at [16]; Medina v Electro Industry Group Queensland Limited [2019] QSC 63 at [46]).
The court relevantly held that the delay was not significant and there was no prejudice to the plaintiff that could not be adequately compensated by way of an appropriate costs order.
Implications for you
This case provides a useful summary of the relevant considerations established by previous cases in determining the availability of a concurrent wrongdoer defence, and in exercising the court’s broad discretion as to withdrawal of express and deemed admissions. As to proportionate liability, it is a helpful reminder that the key consideration is whether the harm (i.e. the damage or loss) suffered by the plaintiff is caused by both parties. The plaintiff erred in this case in submitting that the parties could not be concurrent wrongdoers as the acts or omissions which may be causative of loss, were not the same. That is not the proper focus of the enquiry, but rather the source of the harm suffered.
