What it does
The Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (the Act) is a consolidating and reforming statute that, in its present form, performs two principal functions. First, Part 2 (inserted by the Law Reform (Miscellaneous Provisions) Amendment Act 1990 No 7, s 5) codifies and expands the equitable rights of sureties. Section 3(1)(a) entitles a surety who discharges a principal debtor’s liability “to have assigned to that person, or to a trustee for that person, every judgment, specialty or other security” held by the creditor, irrespective of whether the security is deemed satisfied at law. Section 3(1)(b) further permits the surety to “stand in the place of the creditor” and to invoke all the creditor’s remedies, including proceedings in the creditor’s name upon indemnity. Subsection (2) makes clear that the surety’s payment does not itself constitute a defence to such proceedings, while subsection (3) limits recovery between co-sureties to their “justly liable” proportion.
Second, and more substantially, Part 3 (substituted by the Law Reform (Miscellaneous Provisions) Amendment Act 2000 No 111, Sch 1 [3]) reforms the common-law doctrine of contributory negligence. At common law a plaintiff’s contributory negligence operated as a complete bar. The Act abolishes that rule. Section 9(1) provides that where a claimant suffers damage “partly of the claimant’s failure to take reasonable care (contributory negligence) and partly of the wrong of any other person”, the claim is not defeated and damages are to be reduced “to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”. The term “wrong” is defined in s 8 to encompass (a) any act or omission giving rise to tortious liability where contributory negligence is available at common law, or (b) a breach of a contractual duty of care that is concurrent and co-extensive with a tortious duty.