(d) the exclusion provisions in the Oz Lotto Rules do not preclude liability of the Newsagents and Lotteries to Mr Reinhold for these breaches; nor do they preclude recovery of damages by Mr Reinhold accordingly."
15 The matter of causation was dealt with at paragraph 229:
"Mr Reinhold would not have been deprived of Ticket B and the Entry it reflected but for the cancellation which, as I have found, entailed a breach of contract, as against him by each of Lotteries and the Newsagents. And that cancellation would not have occurred but for the breaches of the duties in negligence owed to Mr Reinhold by both Lotteries and the Newsagents, being the duties related to the exercise of care and skill in the identification of tickets to be cancelled. The breaches of contract and of the duties of care were directly causative of Mr Reinhold's deprivation. In the terms used in s 5D(1) of the Civil Liability Act , those breaches were a necessary condition of the harm constituted by the deprivation and it is appropriate for the scope of the liability of Lotteries and the Newsagents to extend to that harm, they being, to the entire exclusion of Mr Reinhold, the persons with control of the process of ticket cancellation and with knowledge of the workings of that process. This last factor means that the risk to which Mr Reinhold was exposed was not an "obvious risk" as defined by s 5F of the Civil Liability Act ."
16 Consideration of matters of remoteness and quantum led to the following conclusion, stated at paragraph [236]:
"The damages for both breach of contract and negligence are therefore the sum of $2,000,000 necessary to put Mr Reinhold into the position he would have occupied had the deprivation not occurred."
17 In the result, therefore, each of Lotteries and the Newsagents is, apart from any impact of the Civil Liability Act, liable to Mr Reinhold to the extent of $2,000,000 because of both breach of contract and negligence. But if Part 4 of the Civil Liability Act applies to all the claims concerned, the amount of the liability of Lotteries and the amount of the liability of the Newsagents will be limited to an amount determined by the court under s 35(1)(a) and, by virtue of s 35(1)(b), the court will not have power to give judgment for a sum greater than that limited amount.
18 There was some debate before me about the construction of Part 4 of the Civil Liability Act and the fact that its provisions are, in terms, concerned with "claims", not liability as such. But I am of the opinion that the several references to "claims" are references to determined or decided claims that have been established as sources of liability. In this respect, I adopt the construction advocated by Mr J T Gleeson SC on behalf of Lotteries and Mr J C Kelly SC on behalf of the Newsagents.
19 It seems to me clear that a person will be a "concurrent wrongdoer" only if the court makes findings about the existence of "loss or damage" and about which acts or omissions "caused" the loss or damage. It is only when those findings are made that it is possible to identify, as contemplated by s 34(2), each person whose acts or omissions, as found, "caused" the "loss or damage", as found. At that point, and not before, a person can be seen to be a "concurrent wrongdoer".
20 The relevant "claim" - that is, the claim in relation to which the identified person is a "concurrent wrongdoer" - can only be the claim in respect of which the findings concerning loss or damage and causation are made. That claim is, of necessity, a claim already litigated, not a pending or foreshadowed claim. Its nature and content (and, therefore, its status under s 34(1)) will be discoverable by looking at the findings that cause it to be determined as it is determined. If, on those findings, it is seen that the loss or damage (as established in "an action for damages") arose from a failure to take reasonable care and did not arise out of personal injury, the case will be within s 34(1)(a); and if it is seen that there was a contravention of s 42 of the Fair Trading Act, the case will be within s 34(1)(b). In either such case, the already litigated "claim" will be an "apportionable claim" because of s 34(1) and, if, on the findings made, the acts or omissions of several persons "caused" the "damage or loss" as found, the persons will be "concurrent wrongdoers".
21 The need to know the outcome of the claim in order to apply Part 4 is emphasised by s 34A. The operation of that section - and, therefore, the ambit of Part 4 as a whole - depends on the ability to know, among other things, whether a person "intended to cause" or "fraudulently caused" the "loss or damage that is the subject of the claim". These things can be judged only after the loss or damage and its causes have been identified through a process of fact finding and analysis. Viewed in prospect and in its pending state, a claim might allege an intentional or fraudulent act or omission, but it is impossible to say, at that point, whether any loss or damage was caused and, if it was, what caused it - in particular, whether it was intentionally caused or fraudulently caused.
22 On this basis, the nature of a "claim", for the purposes of Part 4, will be determined by what the court has decided in the case, not by what might be prayed or pleaded in an initiating process or points of claim. In short, "claim" refers to a claim as proved and established, not a claim as made or advanced.
23 This approach accords with that taken by Middleton J to analogous legislation of Victoria (Part IVAA of the Wrongs Act 1958 (Vic)) in Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd [2007] FCA 1216. After referring to the need for facts warranting apportionment to be put forward by a defendant at an early stage, his Honour said (at [31]):
"The court, after hearing all the evidence, will then need to determine, as a matter of fact, whether the relevant claim brought by the applicant is a claim arising from a failure to take reasonable care."
24 The decision of Bryson AJ in Chandra v Perpetual Trustees Victoria Ltd [2007] NSWSC 694; (2007) ANZ ConvR 481 reflects the same approach. His Honour proceeded on the basis (at [110] and [111]) that the question of "concurrent wrongdoer" status is to be addressed and determined by reference to findings as to liability and causation already made in the proceedings.
25 Because the question whether a claim is, in terms of s 34(1)(a), one "arising from a failure to take reasonable care" is to be judged by reference to the findings in the proceedings, I do not accept that Mr Reinhold's claim for breach of contract (by reason of cancellation of Ticket B without Mr Reinhold's having returned it for cancellation or requested its cancellation) is not within s 34(1)(a). It was submitted by Mr J B Simpkins SC on Mr Reinhold's behalf that the breach of contract claim is outside s 34(1)(b) because the relevant contractual term was concerned with the fact of cancellation, however the cancellation may have arisen and regardless of questions of intention and questions of want of care. According to the submission made, a contract claim is within s 34(1)(a) only where the breach is a breach of an express or implied term requiring that reasonable care be taken - such as the contract claim arising from the solicitors' retainer in Astley v Austrust Ltd (above). The decision of Palmer J in Yates v Mobile Marine Repairs Pty Ltd [2007] NSWSC 1463, one of the very few cases in which there has been a direct application of Part 3 of the Civil Liability Act, was of this kind.
26 In the present case, there would have been a breach of the relevant contractual term had Lotteries or the Newsagents intentionally and knowingly cancelled Ticket B without Mr Reinhold's consent. Hypothetical examples of intentional breaches were referred to at paragraph [224] of the 30 January judgment. On the findings actually made, however, there was a breach of the contractual term because of actions entailing want of care rather than intention to breach or knowing breach. No one held any positive or conscious intention that Ticket B - the ticket with which Mr Reinhold left the shop - should be cancelled. Its cancellation was the product of the conduct of Lotteries and the Newsagents which entailed breach by each of a duty of care in negligence. The breaches of contract to which the cancellation of Ticket B gave rise were of the same character as the negligence. Each had as its central element failure to take reasonable care.
27 The case was thus one in which each relevant "claim", as determined by the court and according to the findings actually made, was a claim in an action for damages "arising from" the failure to take reasonable care that was also at the centre of the tortious claim in negligence. This is so of both the claims in tort and the claims in contract. That, in my view, is sufficient to bring the contract claims, as well as the tort claims, within s 34(1)(a) and it makes no difference that the breaches of contract, as alleged, were not framed in terms of failure to take reasonable care.
28 It is pertinent to note that the words in s 34(1)(a) ("an action for damages (whether in contract, tort or otherwise) arising from a failure to take reasonable care") do not follow the pattern found in the modified Part 3 of the Law Reform (Miscellaneous Provisions) Act 1965 adopted in 2000 and dealing with contributory negligence. Following Astley v Austrust Ltd (above), that Part 3 made a plaintiff's contributory negligence relevant to the assessment of damages for "a breach of a contractual duty of care that is concurrent or co-extensive with a duty of care in tort": s 8, definition of "wrong". The description in s 34(1)(a) of the Civil Liability Act, by contrast, shows a legislative intention going beyond contractual duties existing, as it were, in parallel with duties of care in tort.
29 Again, support for the approach I consider to be correct is found in the observations of Middleton J in Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd (above). His Honour said (at [30]):
"Where a claim brought by an applicant does not have as one of its necessary elements any allegation of failing to take reasonable care, an additional enquiry into the failure to take reasonable care may become relevant in the course of a trial to determine the application of Pt IVAA. Even though the claims in this proceeding themselves do not rely upon any plea of negligence or a "failure to take reasonable care" in a strict sense, a failure to take reasonable care may form part of the allegations or the evidence that is tendered in the proceedings. At the end of the trial, after hearing all the evidence, it may be found that Pt IVAA applies. '
30 I respectfully agree that a claim may properly be regarded as one "arising from a failure to take reasonable care" if, "at the end of the trial", the evidence warrants a finding to that effect and regardless of the absence of "any plea of negligence or a 'failure to take reasonable care'". The nature of the claim, for the purposes of Part 4, is to be judged in the light of the findings made and is not determined by the words in which it is framed.
31 There is good reason in policy to take this approach. The clear objective of Part 3 is to abolish "solidary liability" under which all defendants found guilty of relevant breach are jointly and severally required to meet an undissected verdict. The provisions reflect legislative views about allocation of risk as between plaintiffs and defendants. The New South Wales Attorney-General in office at the time of the enactment of Part 3 made this clear when he said of the new provisions:
"[I]n cases of negligence not involving personal injury, considerations of prejudice to plaintiffs weigh less strongly than the value of limiting liability of defendants according to their share of responsibility, and as a consequence the CLA(PR) Bill proposes in Part 4 the introduction of proportionate liability in the context of economic loss and property damage."