Proposal 1
Rights of contribution between tortfeasors should apply to all tortfeasors.
Proposal 2
In contribution proceedings brought by D1 against D2, following a judgment (whether on the merits or by consent) against D1 in favour of P, it should be no defence for D2 to establish that D1 was not liable to P. D2 may, however, contest any issue relevant to D2’s liability to P, even if that issue was decided in favour of P in P’s action against D1, and may also argue that the level of damages awarded in the judgment given against D1 was excessive.
Proposal 3
A settlement between D1 and P which is a final determination of P’s rights in relation to that damage should be the basis of D1’s right to claim contribution from D2. Where D2 is liable to P, D2 should not be entitled to resist the claim for contribution on the ground that D1 was never liable to P.
Proposal 4
In contribution proceedings, the sum agreed to between D1 and P in settlement of P’s claim should have the benefit of a presumption of reasonableness. D2 may challenge a claim for contribution on the ground that the quantum of the award was unreasonable and the court may order D2 to pay a sum which the court considers appropriate in the circumstances.
Proposal 5
The Commission proposes that, in the case of a partial settlement between D2 and P, D1 should have a right of contribution from D2; D2 should have a right of contribution from D1; and P should be entitled to bring an action against D1 in order to obtain full compensation.
Proposal 6
In circumstances where a release and indemnity is given by P to D2, the rights of contribution between D1 and D2, should be the same as in the case of partial settlements.
Proposal 7
In an action brought by P against the contributor (D2), any judgment in favour of D2, following a hearing on the merits, should be conclusive evidence that D2 is not “liable” to P for the purposes of D1’s claim for contribution against D2, except where:
1. P’s action against D2 fails for want of prosecution;
2. D1 is appealing from a decision in favour of D2 where both D1 and D2 are parties to the action brought by P and where both are joined as third parties; and
3. P’s action against D2 fails because the action has become statute barred.
Proposal 8
Where the value of goods and services can be ascertained, they should be included as a means of discharging D2’s liability for the purposes of a contribution claim.
Proposal 9
The Fair Trading Act 1987 (NSW) should be amended to provide for rights of contribution between concurrent wrongdoers.
Proposal 10
The Motor Accidents Act 1988 (NSW) should be amended to provide for rights of contribution between concurrent wrongdoers. The rights of contribution provided for in the Motor Accidents Act 1988 (NSW) should follow the principles set out in the Workers Compensation Act 1987 (NSW).
Proposal 11
Rights of contribution should be extended to include mixed concurrent wrongdoers. Rights of contribution to mixed concurrent wrongdoers liable in tort and contract should explicitly provide that a plaintiff’s right to full compensation be protected and that any defendant whose liability to the plaintiff in contract is limited by a clause limiting or exempting liability to the plaintiff should have the full benefit of those contractual terms.
Proposal 12
The proposed legislation defining rights of contribution should supersede all other rights of contribution except equitable rights of contribution. There should also be a provision allowing that statutory rights of contribution may be modified by express contractual terms.
Proposal 13
The sanction in costs should apply to all plaintiffs pursuing successive actions in relation to the same damage.
Proposal 14
The “sanction in damages” rule should be abolished for all concurrent wrongdoers.
Proposal 15
The judgment bar rule should be abolished for all wrongdoers.
Proposal 16
The settlement bar rule should be abolished for all joint wrongdoers. The effect of a settlement between a plaintiff and one of a number of joint wrongdoers should depend on the intention of the plaintiff.
Proposal 17
There should be explicit recognition that abolition of the judgment bar rule for all joint wrongdoers will have the effect of abolishing the single judgment rule.
