Proportionate liability, as it is utilised across Australian jurisdictions, remains an ineffective means of allocating risk despite the ambitious attempt to make damages awarded against multiple defendants more equitable.
This article examines the development of the proportionate liability regime focussing on how it applies to the building and construction industry, particularly in light of the recent High Court of Australia decision in Hunt & Hunt v Mitchell Morgan Nominees Pty Ltd.
The High Court decision has confirmed the role that the statutory proportionate liability regime has in disputes with multiple parties causing the loss claimed. It is the first judgment handed down by the High Court that involves a detailed analysis of the proportionate liability regime, the New South Wales legislation in particular. The decision clarifies the meaning of ‘damage or loss that is the subject of the claim’ in the legislation and further use of ‘damage’ in the legislative provisions.
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