Chapter 21 How is the apportionment of responsibility assessed?

In assessing the responsibility of a defendant under the Commonwealth, NSW, NT and Queensland regimes, courts may look to the proportionate responsibility of defendants who have not been joined to the litigation.

In Western Australia, Tasmania and South Australia, courts must look to the proportionate responsibility of defendants who are not joined.

In Victoria, courts may only look to the proportionate responsibility of a party who has not been joined if that party is dead, or is a company which has been wound up.

Under the Commonwealth regime and in most states, once litigation has commenced, a defendant is under a duty to inform a claimant of the identity of other persons who may be responsible for the claim, and the circumstances of that responsibility.

Differences between the various regimes

Some of the differences between the operation of the regimes are shown below:

Issue Cth NSW Qld NT
Commencement Claim arises after 26 July 2004 Claim arises after 26 July 2004 and action commenced after 1 December 2004 Action commenced after 10 March 2005 Where loss or damage occurs partly or wholly after 1 June 200
Contract out? No (silent) Yes No No (but only as between the plaintiff and defendant)
Apportionment of loss to absent wrongdoer? Court may Court may Court may Court may
Is the defendant encouraged/obliged to inform plaintiff of identity of other wrongdoers? Yes (encouraged) Yes (encouraged) Yes (obliged) Yes (encouraged)

 

Issue Vic WA SA
Commencement Action commenced after 1 January 2004 Claim arises after 1 December 2004 Claim arises after 1 October 2005
Contract out? No (silent) Yes No (silent)
Apportionment of loss to absent wrongdoer? No (except when dead or corporation wound up) Court must Court must
Is the defendant encouraged/obliged to inform plaintiff of identity of other wrongdoers? No Yes (encouraged) Yes (obliged)

 

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