Proportionate liability ‘needs speedy resolution’

The shortcomings of proportionate liability legislation across Australian jurisdictions are extensive and need speedy resolution, Queensland barrister Richard Douglas has told the Australian Insurance Law Association’s annual Geoff Masel Lecture.

Douglas QC presented the lecture from Brisbane this week with video links to eastern seaboard capitals. The event will be in Perth, Western Australia, on 22 August.
The lecture considered the ramifications of changes to civil liability legislation, generated by the release 16 years ago of a report by a panel chaired by former judge David Ipp.

Douglas said the Ipp report’s recommendation for proportionate liability was welcomed, but jurisprudence had “developed at a snail’s pace”. He blamed “drafting complexity, with disparate drafting yielding varying jurisprudence”. That fuelled “the reach for certainty by compromise”.

“While compromise of contentious litigation is desirable, it ought not be foist on parties by dint of uncertainty as to the law,” Douglas said. Proportionate liability enables courts to apportion responsibility for damages claims among wrongdoers in proportionate amounts.

Douglas said procedural provisions enacted to identify wrongdoers were “cumbersome and readily circumvented”. Apportionments were often unpredictable and unsatisfactory, particularly when one wrongdoer was a fraudster and the other a professional “whose remit extends to detection or avoidance of such wrongdoing”.

The Law, Crime and Community Safety Council – formerly the Standing Council on Law and Justice – had had template legislation drafted that corrected many of the shortcomings. But the council had deferred it as an agenda item since 2013.

In question time after the lecture, Mr Douglas said consistency across jurisdictions was “a pipe dream”, but proportionate liability “should be fixed and fixed soon”.