In 2007, following a number of decisions involving various states’ proportionate liability schemes, various the Council of Australian Governments (COAG) began to take another look at the proportionate liability statutory regimes because of concerns about the lack of consistency in the legislation across the country.
In October 2013, the Revised Draft Model Proportionate Liability Provisions (26 September 2013) and a new Decision Regulation Impact Statement (October 2013) were presented to the former Standing Council on Law and Justice.
The Decision Regulation Impact Statement identified two main problems with the current regime:
- There were substantial legislative inconsistencies between jurisdictions, which can lead to ‘forum shopping’.
- There was a lack of clarity and/or certainty in the operation of particular provisions.
The Revised Draft Model Proportionate Liability Provisions make a number of recommendations, including:
- The definition of ‘concurrent wrongdoer’ should be broadened to expressly include multiple defendants who cause the same or ‘substantially or materially similar’ loss or damage.
- A defendant should be required to notify a plaintiff in regards to other possible concurrent wrongdoers and other concurrent wrongdoers of the claim.
- When apportioning liability, the court:
- must consider the comparative responsibility of any concurrent wrongdoer joined to the proceedings; and
- may consider the comparative responsibility of concurrent wrongdoers who are not joined.
- The types of claims that are excluded from the proportionate liability regime should be standardised.
- If notice is given to a plaintiff of a concurrent wrongdoer, they should only bring proceedings against that concurrent wrongdoer with leave of the court, and caps should apply for any award in those proceedings.
- Proportionate liability legislation should not apply to arbitrations or other entities capable of making a binding determination; and, in jurisdictions that adopt this provision, arbitration could therefore be used as a means to circumvent proportionate liability.
- When a plaintiff settles with one concurrent wrongdoer, another should not be exposed to contribution claims from other concurrent wrongdoers.
- Contracting should be prohibited for all contracts, but an exception should be made for agreements by a concurrent wrongdoer to contribute to the damages recoverable from, or to indemnify, another concurrent wrongdoer.
- A failure to take reasonable care must be an element of the claimant’s cause of action, apart from claims under the Australian Consumer Law for statutory misleading or deceptive conduct claims.
Each jurisdiction has agreed to consider implementing the Draft Model Provisions. At this point, however, no action has been taken.