Chapter 4
What we said last time

Introduction

4.1In the early 1990s, the Law Commission selected the law relating to the apportionment of civil liability as an area that deserved attention. The primary reasons for this were that there had been significant statutory reform in this area in England and Wales,39 and in this Commission’s own work on statutes of limitations and company law40 the consultative activity revealed considerable concern about some of the present rules concerning multiple liability disputes.
4.2The work culminated in the release of a Preliminary Paper in March 1992.41 As explained below, the Law Commission recommended that there be no change to the joint and several liability structure of our civil law. Rather, changes to address specific concerns with the existing system were proposed, and a draft Bill was attached.
4.3Subsequent to the release of the Preliminary Paper, consideration was given in Australia to the same issues. Despite suggestions as early as in 1994 that a complete movement away from joint and several liability to proportionate liability was possible,42 legislation had still not been enacted by 1997 (although specific reforms relating to the building industry, including the shift to proportionate liability in that sector only, had occurred in Victoria, New South Wales, South Australia, and the Northern Territory).43
The Law Commission pressed on and released a Final Report in May 1998,44 which subject to one relatively minor change carried forward the draft Bill attached to the Preliminary Paper.
39Civil Liability (Contribution) Act 1979 (UK).
40Law Commission The Limitation Act 1950: A Discussion Paper (NZLC PP3, 1987); Limitation Defences in Civil Proceedings (NZLC R6, 1998); Company Law: A Discussion Paper (NZLC PP5, 1987), Company Law: Reform and Restatement (NZLC R9, 1989); Company Law Reform: Transition and Revision (NZLC R16, 1990).
41Above n 3.
42See the discussion in the report Apportionment of Liability, above n 4 at [2].
43Building Act 1993 (VIC); Environmental Planning and Assessment Amendment Act 1997 (NSW); Developments Act 1993 (SA); Building Act 1993 (NT).
44Above n 4.