Chapter 2
Options for allocating liability among multiple defendants

Partial reform options

2.17In the course of this review it has become apparent that full proportionate liability is very rare. Most jurisdictions that have reformed the rule of joint and several liability have not shifted wholly to proportionate liability, instead adopting more moderate or partial reforms.31 It is therefore particularly important that this review considers these “hybrid” options.

2.18In our Issues Paper we discussed different partial reform models, including some used in parts of the United States and Canada and those considered in our previous review in 1998. Such models are intended to ameliorate some of the effects of joint and several liability for defendants, without going the whole way to proportionate liability. An example is to provide proportionate liability where a plaintiff is found to be contributorily negligent, with joint and several liability applying if the plaintiff is judged not to have contributed to their own loss. The detail of different hybrids will be discussed more fully in Chapter 4.

31For example, the Australian move to proportionate liability only applies to property damage and economic loss claims alleging negligence, another cause of action akin to negligence, or some statutory causes of action, including Trade Practices. See ch 4.