Contribution between Wrongdoers - Is the Damage Sufficiently Related?

• Author: Sir Andrew Tipping
• Position: Retired judge of the Supreme Court of New Zealand
• Pages: 1-26

1

CONTRIBUTION BETWEEN WRONGDOERS

– IS THE DAMAGE SUFFICIENTLY RELATED?

SIR ANDREW TIPPING *

I. Introduction

This ar ticle address es the right s of contribut ion (or indemnit y), between

themselves, of t wo or more parties who have e ach caused or contribut ed to the loss

or harm for wh ich a plainti is ent itled to redress. The ne ed for contribution ari ses

when one wrongdoer h as paid more than t heir fair sha re of the plainti ’s total loss.

For simplicit y, I will proceed on the ba sis of two defendants t o be called D1 and D 2. I

will c all the plaint i P. My central thesis wi ll be that New Zeal and law has for some

time been i n an unsatisfac tory state. L egislative att ention is overdue.

Sir Peter Bla nchard and I both sa id as much 10 years ago in the Supr eme Court

in Marlborough Di strict Counc il v Altimarloch Jo int Venture Ltd (Altimarlo ch).1

In that ca se the cour t was divided 3 :2 on the contri bution issue, a nd indeed, in

dierent combi nations, on sever al other issu es. Since then, t he Supreme Cour t

has addres sed the contribution iss ue again in Hotchin v Guardian Trust.2 The Court

was aga in divided 3:2. The ma jority made a vali ant eort to simpli fy the criteri a for

contribut ion, but the need for legisl ation remains, a s the minorit y recognised. I w ill

be maki ng some suggestions i n that respect at th e end of my article.

Courts c an achieve on ly so much with ad ho c situation al solutions . The

necessar y general coherenc e is best achieve d legislati vely, particu larly as a key

issue wit h the present reg ime – the “same d amage” conu ndrum – is en shrined i n

legislat ion. This is a si mila r situation t o that which we fa ced for many year s with

the previous ly outdated Lim itation Act 1950 . That legislation wa s updated in 2010. In

the contri bution f‌ield, the only relev ant legislation wa s passed as long ago as 19 36. It

is now seriously out of d ate. Equitable pri nciples have found it dicult t o adjust to

changing needs.

My thesis w ill be that the prese nt legislative regi me, which covers contribut ion

only betwe en tortfea sors, should be ex panded in t wo ways. Firs t, it should cover

1 Marlboroug h District Coun cil v Altimarloc h Joint Venture Ltd [2012] 2 NZLR 206, [201 2] NZSC 11.

2 Hotchin v Guardian Trust [2016] 1NZLR 50 0, [2016] NZSC 24 .

* Retire d judge of the Supr eme Court of Ne w Zeala nd.

2 [Vol 28, 2021]

all wr ongdoers, not just tort feasors. Second, the cr iterion for liabil ity to contribut e

should be expa nded from liabilit y for the “same da mage” to liabilit y for the “same

or suciently r elated damage”. The new reg ime should take the pl ace of all rules of

the common law a nd equit y. The amount of contribu tion should ref‌lec t the causa l

potency of each w rongdoer’s conduct a nd their compa rative blame worthi ness,

those being f amiliar c oncepts in the contri butory negligenc e f‌ield.

My artic le is based on the prem ise that we retain t he present joint and several

liabil ity regi me, under which pl ainti s can recover t heir ful l loss from each of

two or more wron gdoers. They ca n choose whom to sue. I f we were to move to a

proportionat e regime u nder which plai ntis could r ecover from each wr ongdoer

only that pa rty’s prop ortionate s hare of the pla inti ’s tota l loss, the present

dicul ties with c ontribution b etween wron gdoers would be reduce d, but not

elimi nated. That would be helpfu l, but a move to a proportionat e regime would not

suit the i nterests of plai ntis, as there wou ld be greater potent ial for them not to be

fully c ompensated. While t he two areas int eract, my present purp ose is to examine

only the cont ribution aspect.

Before I move on, I must ma ke an explanat ion. My article di scusses a case in the

Supreme Court on w hich I sat (Altimarloch). It d iscusses anot her case in the Supreme

Court on wh ich I did not sit, hav ing reti red in the mea ntime (Hotchin). It is not

normal ly appropriate for a judge, whether re tired or not, to discu ss extrajudicia lly

a case in wh ich the judge has b een involved. Th is risks per ceptions of self-

congratu lation or self-justif‌icat ion, or indeed sel f-f‌lagellation ! It is also nec essary

for retired jud ges to be care ful to not gr atuitou sly critici se judges who have lat er

disag reed with them. In t his article I a m conscious of doing both t hese things.

The reason I am t akin g the liber ty of doing so is t hat my topic is a h ighly

controversia l one in respect of which I am c alling for early le gislative reform. That

call is m ade in the public interest . In order to lay out the problemat ic background,

I must necessa rily discuss t he two cases I have mentione d. I cannot conscient iously

do so without add ressing the merit s of the competing poi nts of view. The reasonin g

I deploy in support of my c all for legislat ion must include an honest appra isal of the

dierent approaches.

II. Facts of Altimarloch

Let me open the di scussion by reference t o the facts of Alti marloch. Vendors

of land on which t he Purcha ser, to their k nowledge, intende d to plant gr apes,

misrepresente d, by overstatement , the quantit y of water right s that went wit h

the land. T he Purcha ser had also chec ked the water ri ghts situation wit h the local