Section 109Z of the Environmental Planning and Assessment Act (now s 35 of the Civil Liability Act) requires apportionment of damages among concurrent tortfeasors but does not require apportionment of costs. Joint and several costs orders remain appropriate where liability depends on a common substratum of fact, because the plaintiff must prove the whole case against all defendants to establish the apportionment. Defendants subject to proportionate liability may seek contribution from co-defendants for costs payable to the plaintiff. Hearsay evidence that cannot be tested by cross-examination cannot satisfy the requirement for a new trial on the ground of fresh evidence that the evidence would probably produce a different result.
The full text is available to signed-in members, including the 8 later cases that cite this judgment.
3 of the 8 citing cases carry a classified treatment. How each court treated it is available to signed-in members.