A claim in intentional trespass to land is not an apportionable claim under s 34(1)(a) of the Civil Liability Act 2002 (NSW), because the absence of reasonable care is not an element of the cause of action. Knowledge of the boundary location is irrelevant to whether a trespass is intentional — the relevant intention is the intention to enter where the defendant in fact entered. A defendant relying on proportionate liability must plead the defence and identify each concurrent wrongdoer with the same particularity as a cross-claim; Part 4 does not apply of its own force. Where tortious damage is done to a residential home, the cost of rectification is the appropriate measure of damages unless the defendant discharges the onus of establishing that the costs are unreasonable, and failure to cross-examine the plaintiff on their intention to rectify is forensically significant.
The full text is available to signed-in members, including the 3 later cases that cite this judgment.
3 of the 3 citing cases carry a classified treatment. How each court treated it is available to signed-in members.