- Given the reach of the proportionate liability regime, it is imperative that practitioners are able to identify when the regime applies, and to whom.
- The majority in Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613 gave a broad construction to the definition of a concurrent wrongdoer. Such an interpretation affords greater opportunity to defendants to limit their liability under the proportionate liability regime.
- In order to apply or resist the application of the regime, practitioners should take steps to ensure that they properly identify the loss or damage that is the subject of the claim.
The proportionate liability regime is contained in the Competition and Consumer Act 2010 (Cth) (the Competition and Consumer Act), Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act), Corporations Act 2001 (Cth) (the Corporations Act), and the Civil Liability Act 2002 (NSW) (the Civil Liability Act) and its analogues in other states and territories.
The regime applies to ‘apportionable claims’, which include: claims for economic loss or damage to property in an action for damages (whether in contract, tort or otherwise) arising from a failure to take reasonable care, but not including any claim arising out of personal injury, and claims for damages for economic loss or damage to property caused by misleading or deceptive conduct. Given the reach of the regime, it is imperative that practitioners are able to identify when the regime applies, and to whom.