Rights of contribution should apply to all tortfeasors.

Rights of contribution should be extended to include mixed concurrent wrongdoers. Rights of contribution to mixed concurrent wrongdoers, some of whom are liable in contract, should explicitly provide that a defendant, whose liability to the plaintiff in contract is expressly limited or exempted, should have the full benefit of those contractual terms.

The proposed legislation defining rights of contribution should supersede all other rights of contribution except equitable rights of contribution. The legislation should also state that statutory rights of contribution may be modified by express contractual terms.

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, in the absence of evidence of fraud or collusion, 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.

In contribution proceedings brought by D1 against D2, following a judgment (whether on the merits or by consent) against D1 in favour of P, D2 may argue that the level of damages awarded in the judgment given against D1 was excessive.

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.

In contribution proceedings, the sum agreed to between D1 and P in settlement of P's claim should be presumed to be reasonable. When D2, in a claim for contribution, challenges the quantum of the award on the ground that it was unreasonable or that the settlement was not bona fide, the court may order D2 to pay a sum which the court considers appropriate in the circumstances.

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.

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.

Any judgment in favour of D2, following a hearing on the merits in an action brought by P against D2, should be conclusive evidence that D2 is not “liable” to P so that D1 cannot claim 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.

The sanction in costs rule should apply to all plaintiffs pursuing successive actions in relation to the same damage.

The “sanction in damages” rule should apply in actions against concurrent wrongdoers only in cases where the plaintiff has already received judgment for the whole of his or her damages without limitation.

The judgment bar rule should be abolished for all joint wrongdoers.

The settlement bar rule should be abolished for all joint wrongdoers.

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.

Section 26 of the Limitation Act 1969 (NSW) should be amended to cover rights of contribution between all concurrent wrongdoers.