Terms of reference

Participants

Glossary of terms and abbreviations

List of recommendations

1. INTRODUCTION

THE COMMISSION’S REFERENCE

THE LAW OF CONTRIBUTION

Joint wrongdoers and several wrongdoers at common law

Joint wrongdoers

Several wrongdoers

The rule in Merryweather v Nixan

Statutory variation of the common law

2. SOLIDARY LIABILITY

JOINT AND SEVERAL OR SOLIDARY LIABILITY

PROPORTIONATE LIABILITY

THE INTERIM REPORT (LRC 65)

DEVELOPMENTS SINCE THE INTERIM REPORT

The Davis Report

Discussion Paper on Contribution

Recent developments in other jurisdictions

New Zealand

Canada

Victoria

The American experience

Policy issues

Limited introductions of proportionate liability

The burden of conduct of proceedings

General issues

Effect on settlements

Dangers of non-uniform approach

Conclusion

Effect on liability insurance

Deterrence to entry to the professions

Deterrence to entrepreneurial enterprise/service provision

Incentive to be risk averse

3. WHERE CONTRIBUTION ARISES

ENSURING COVERAGE OF ALL TORTFEASORS

Torts that are crimes

Intentional torts

Torts of strict liability

EXTENSION TO MIXED CONCURRENT WRONGDOERS

Difficulties in extending the right to contribution

Different nature of liability

The effect of concurrent liability

Adding to the complexity of the law

Determining the contributable sum

Legislative implementation

Application of the legislative scheme

4. WHEN CONTRIBUTION ARISES

WHERE P OBTAINS JUDGMENT AGAINST D1

Finality of judgment as to liability against D1

Consent judgments and judgments obtained by fraud or collusion

Conclusion

WHERE D1 AND P SETTLE WITHOUT JUDGMENT

Full settlements

Where D1 was never liable to P

The sum to be apportioned

Releases and indemnities

Where D2 successfully defends an action “on the merits”

Where P’s action against D2 is time barred

Where P fails for want of prosecution

Where D2 is found not liable in third party proceedings

BASIS OF APPORTIONMENT OF LIABILITY

5. PROCEDURAL

SANCTION IN COSTS

SANCTION IN DAMAGES

THE DISTINCTION BETWEEN JOINT WRONGDOERS

AND SEVERAL WRONGDOERS

Judgment bar rule

Settlement bar rule

Single judgment rule

LIMITATION OF ACTIONS

Limitation period relevant to the primary cause of action

Limitation period for contribution actions

Length of limitation period

Extension to rights of contribution between all concurrent wrongdoers

APPENDICES

APPENDIX A: SUBMISSIONS RECEIVED

APPENDIX B: CONSULTATIONS

TABLE OF LEGISLATION

TABLE OF CASES

BIBLIOGRAPHY