1.15The principal question that this Report must answer is which, of joint and several liability and proportionate liability, is the appropriate rule for New Zealand today. We set out our analysis of the issues and consequent recommendation on this central point in Chapters 2 and 3. We provide a general answer and recommendation, applicable to all cases where liability of multiple defendants arises. We also give separate consideration to whether the features and needs of particular sectors require some individual treatment, in Chapters 6 to 8.
1.16The terms of reference require us to examine hybrid schemes, involving some mixture of elements of joint and several liability, proportionate liability, or some other arrangement, as well as arrangements for capping liability, either by contract or through statute. We deal with the possibility of hybrids in Chapter 4. Capping is discussed in Chapters 7 and 8 as part of our consideration of limitation of liability for building consent authorities, professional advisers and service providers. Capping is most relevant for these groups because it may mitigate the catastrophic loss risk, and reflects that capping is already a reality in Australia.
1.17We have also considered whether other adjustments could or should be made. In the building sector, we note the desirability of more comprehensive and effective building guarantee or warranty products, whether or not the liability rule changes. In the building sector it is also necessary to work through the implications for the liability of building consent authorities (local authorities) from changes to consenting rules and allocation of responsibility. The landscape for local authority liability in this area is changing and this should be clearly understood and consistently expressed in the relevant legislation.