Appendix 2

List of questions

Q1 In what ways, if any, does joint and several liability work well at present?
Q2 Under joint and several liability each defendant is liable for all the damage they are found to have caused, even if other defendants are also responsible. Is this fair?
Q3 Joint and several liability only applies where the defendants are liable for the same loss or damage. How do you think this “same damage” requirement should be applied in practice?  
Q4 Joint and several liability is intended to ensure that the plaintiff is fully compensated for their loss, even if one defendant is missing or insolvent. Is this goal achieved in practice? 
Q5 Should plaintiffs be able to recover the full amount of their loss without claiming from all possible defendants who contributed to the damage? If so, why? If not, why not?
Q6 How effectively does apportionment operate in practice? Does apportioning responsibility between several liable defendants do justice between defendants?
Q7 Which, of joint and several liability and proportionate liability, do you consider fairer? Why?
Q8 If a system of proportionate liability were introduced, what if any additional measure do you think would be needed to protect plaintiffs, for instance against uncollectable shares?
Q9 Which if any of the hybrids or other alternatives to straight joint and several liability or straight proportionate liability do you prefer? Why?
Q10 If the “peripheral wrongdoer” model is used, do you think it is necessary to include a threshold test or definition in legislation? If you support a statutory threshold, what threshold would you prefer? How should this be applied in practice?
Q11 If the “plaintiff at fault” model is used, should there be a threshold level for contributory negligence by the plaintiff, before proportionate liability applies?  If so, what level do you consider appropriate? 
Q12 Overall, which of the options for reform or the status quo do you prefer?  Why?
Q13 Should contributory negligence operate as a partial defence for all claims, regardless of whether the defendant is liable in contract, tort, or equity?
Q14 Should defendants be able to recover contributions from all other potentially liable parties regardless of whether the defendant is liable in contract, tort, or equity?
Q15 Should the rules relating to contributory negligence and contributions be the same whether the claim is based in contract, tort, or equity?
Q16 Do you consider that leaky homes claims have exposed problems in the operation of the rule of joint and several liability?  If so, what are they?
Q17 Which of joint and several liability or proportionate liability do you think would produce fairer outcomes in leaky building cases?  Why?
Q18 Do you consider that the joint and several rule has adequately protected homeowners’ interests in leaky homes cases?
Q19 Could a change to proportionate liability be limited to a specific sector?
Q20 If New Zealand were to shift to a system of proportionate liability in the construction sector, would a compulsory builders’ warranty scheme be necessary to protect the interests of the homeowner? If so, how should this be funded and run?
Q21 In the wake of the global financial crisis, do you consider that auditors and other professional advisers should be able to cap their liability, as in Australia?  If so, how should a liability cap operate? What classes of defendant should receive the benefit of liability caps?
Q22 How relevant is the Australian experience for reform of liability rules in New Zealand?  To what extent do the reasons and conditions that led to this change in Australia in 2003 also apply in New Zealand?
Q23 How important is it that there be one liability regime applying across Australia and New Zealand? 
Q24 What weight should the Commission give CER when considering whether to recommend changes to New Zealand’s liability rules?
Q25 Given that the different Australian states have not yet harmonised their liability regimes, if New Zealand decides to adopt proportionate liability, how should we draw on the Australian experience? 
Q26 Are any of the liability models used in other jurisdictions discussed in this chapter preferable to the current system of joint and several liability in New Zealand? If so, why? And if not, why not?
Q27 To what extent should a liability rule balance fairness or justice concerns with economic efficiency?  How can the best balance be achieved? If there must be a trade-off between fairness and efficiency, which should be preferred?
Q28 Do you think it is true that some categories of defendants in New Zealand tend to become “deep pockets”?  Which defendants are particularly affected?  Do you think this is a problem? Why or why not?
Q29 Do you favour using proportionate liability to deal with the issues of “deep pockets”?  Are there other options to prevent “deep pockets” bearing disproportionate liability? Are there other ways to prevent “deep pockets” becoming risk averse?
Q30 Overall, do you think that joint and several liability is a fair system?
Q31 Overall, do you think that proportionate liability is a fair system?
Q32 What, if anything, could be done to improve the fairness or efficiency of outcomes under joint and several liability (either to the plaintiff, the defendant, or overall)?
Q33 If proportionate liability were to replace joint and several liability, what if any adjustments would you consider necessary to ensure fair outcomes?
Q34 How do you think the interests of plaintiffs and defendants should be balanced in a fair system of apportioning liability? How important is avoiding disproportionate burden on some defendants, compared to ensuring that plaintiffs receive an effective remedy?
Q35 What, if any other changes do you think are necessary or desirable to improve our liability rules?  Why?
Q36 Overall, do you think that New Zealand should retain joint and several liability or shift to proportionate liability or adopt a hybrid option?  Why?