This precedent has been authored by Dr. Gordon Hughes, Principal, Davies Collison Cave Law.
The effect of proportionate liability legislation is that a court can apportion liability among multiple defendants, rather than assessing total damages on a joint and several liability basis. A customer may feel exposed under proportionate liability legislation because, if it is dealing with multiple contractors and sub-contractors, there is a prospect that one or more of these parties may be apportioned significant liability but be unable to pay. For this reason, customers tend to favour an exclusion of proportionate liability legislation, although this is not permissible under Queensland law.
Proportionate liability legislation can be defined as embracing some or all of the following, depending upon the scope of the agreement:
• Civil Liability Act 2002 (NSW) – part 4;
• Wrongs Act 1958 (Vic) – part IVAA; • Civil Liability Act 2002 (WA) – part 1F;
• Civil Liability Act 2003 (Qld) – chapter 2 part 2;
• Civil Law (Wrongs) Act 2002 (ACT) – chapter 7A; • Proportionate Liability Act 2005 (NT);
• Law Reform (Contributory Negligence and Apportionment of Liability Act) 2001 (SA) – part 3;
• Civil Liability Act 2002 (Tas) – part 9A;
• Competition and Consumer Act 2010 (Cth) – part VIA;
• Corporations Act 2001 (Cth) – part 7.10, division 2A; or
• Australian Securities & Investments Commission Act 2001 (Cth) – part 2, division 2, subdivision GA.