Proportionate Liability: Reform or Regression?

Professor Doug Jones

July 2008

A paper based on the seventh Michael Brown Lecture, given to the Centre of Construction Law, King's College London, on 7th September 2006.

Where more than one potential defendant contributes towards a single loss or damage suffered by a plaintiff, does the common law's traditional 'joint and several' principle work fairly, and have any of the alternatives moving towards 'proportional' liability resolved the difficulties? Professor Doug Jones, in a paper based on his 2006 Michael Brown lecture at King's College London, looks at the present situation in English and Australian law, with the perceived 'crisis' in insurance cover for professionals and arguments that joint and several liability is unfair on a 'deep pocket' defendant. He examines the existing doctrines which redistribute liability between parties - contribution and contributory negligence - and the statutory introduction of forms of proportional liability within each Australian State and Territory. These reforms differ in their details and none of the statutes is without its problems and uncertainties, so they do not offer a clear way forward for the UK, where net contribution clauses have filled the gap left by the refusal of law reform bodies and Government to legislate.

Introduction - Insurance costs: the source of the debate - The framework of the proportionate liability debate - The debate at a policy level - The Australian response: adopting proportionate liability - The UK response: rejecting proportionate liability - Conclusion.
The author: Professor Doug Jones, AM, RFD, BA, LLM, FCIArb, FIAMA is Head of the Majors Projects Group, Clayton UTz (Sydney) and a member of Atkin Chambers, London.

Text 38 pages.

PDF file size: 221k