Proportionate Liability in Building and Subdivision Cases
James Goudkamp, ‘Proportionate Liability in Building and Subdivision Cases’ (2003) 8 Australasian Journal of Natural Resources Law and Policy pp.179–190.
14 Pages Posted: 23 Mar 2016 Last revised: 17 Apr 2016
Date Written: 2003
Litigation arising out of defective building work is often complex due to a multiplicity of both parties and actions. Parties to building litigation frequently include designers, architects, engineers, builders and their subcontractors, suppliers and local planning authorities. Larger construction projects generally draw in larger numbers of parties. These parties may be sued in negligence, contract and for breach of the Trade Practices Act 1974 (Cth). It is thus not surprising that building litigation sometimes generates difficult questions as to how liability for defective building work should be apportioned between concurrent wrongdoers. Traditionally, concurrent wrongdoers were jointly and severally liable to the plaintiff. In recent years however, legislation has been enacted in New South Wales, the Northern Territory, South Australia and Victoria in an attempt to sever the joint and several liability of concurrent wrongdoers in building cases, and to introduce a system of proportionate liability. The New South Wales scheme also extends to subdivision cases. This note surveys this legislation and comments on its operation. In section two, some introductory comments are made concerning the relationship between joint and several liability and proportionate liability. Section three canvasses reasons for the introduction of proportionate liability in building and subdivision cases. Section four outlines the legislation and notes some differences between the jurisdictions. Decisions in which the legislation has been interpreted are discussed in section five. Finally, in section six, an assessment is made of the schemes’ effectiveness in substituting joint and several liability for proportionate liability.
Keywords: planning law, tort law, solidary liability, proportionate liability, apportionment
JEL Classification: K13
Suggested Citation: Suggested Citation