Proportionate Liability: Apportionable Claims and Concurrent Wrongdoers
Prior to the implementation of proportionate liability in Queensland, negligence claims involving economic loss or property damage were governed by the common law principle of joint and several liability, often referred to as the rule of “solidarity”. Under this doctrine, a plaintiff could recover the full amount of their loss from any one party found to be concurrently responsible. Although the liable party could then seek contribution from others, they risked bearing the full financial burden if the other wrongdoers were insolvent or untraceable.
The shift to proportionate liability in Queensland was part of a broader legislative response to the 2001–2002 insurance crisis. These reforms allowed courts to apportion liability between multiple wrongdoers based on their level of responsibility. As a result, each defendant is now accountable only for their share of the loss. This was intended to address unfairness under the previous regime. Claims involving personal injury were expressly excluded from the new framework.
It is common in negligence claims involving economic loss or damage to property for multiple parties to contribute to a claimant’s loss. In these cases, proportionate liability in Queensland is governed by Chapter 2, Part 2 of the Civil Liability Act 2003 (Qld) (CLA), which introduces the concepts of apportionable claims and concurrent wrongdoers.
What is an Apportionable Claim?
Section 28 of the CLA defines an apportionable claim to include, among other things, “a claim for economic loss or damage to property in an action for damages arising from a breach of a duty of care.”
Who is a Concurrent Wrongdoer?
A concurrent wrongdoer, under section 30(1) of the CLA, is one of two or more parties whose actions or omissions independently caused the same loss or damage that is the subject of the claim. Section 32 further states that it does not matter if a concurrent wrongdoer is insolvent, deceased, wound up, or no longer exists.
Proportionate Liability for Apportionable Claims
Section 31 of the CLA outlines how proportionate liability in Queensland operates:
a) The liability of a concurrent wrongdoer is limited to what the court considers just and equitable based on their share of responsibility
b) A defendant cannot be ordered to pay more than their proportionate share
c) The court can consider the responsibility of other concurrent wrongdoers, even if they are not parties to the proceedings
d) This framework applies regardless of whether all concurrent wrongdoers are joined to the action
This means a claimant may not be able to recover their full loss if not all concurrent wrongdoers are joined to the claim.
Parties’ Obligation to Identify All Relevant Wrongdoers
Under section 32 of the CLA, claimants making an apportionable claim must bring the action against all persons they reasonably believe may be liable for the loss or damage. Additionally, any concurrent wrongdoer has a duty to help identify other potentially liable parties by providing:
a) Information likely to assist the claimant in identifying or locating them
b) Details about the circumstances that make them a suspected concurrent wrongdoer
Failure to comply with these obligations may lead to court orders affecting the apportionment of liability and awarding of legal costs.
Case Example: Kinsella & Anor v Gold Coast City Council (No 3)
This matter involved an interlocutory application to join a second defendant under Rule 69 of the Uniform Civil Procedure Rules 1999 (Qld). His Honour Burns J considered the operation of proportionate liability in Queensland under the CLA, and held:
Section 32C(1) allows the court to grant leave to join one or more concurrent wrongdoers
A joinder application should only be refused if the claim is clearly untenable or manifestly groundless
Interlocutory applications are not an occasion for deep analysis of the claim’s final merits
Each party should generally bear its own costs in such applications
Conclusion
Section 32 of the Civil Liability Act 2003 (Qld) plays a vital role in ensuring that all parties potentially responsible for loss are identified and considered in legal proceedings. The proportionate liability in Queensland framework ensures a fairer allocation of liability and protects defendants from bearing the full cost of damages when others also contributed to the harm.
If you need advice about proportionate liability, concurrent wrongdoers, or defending apportionable claims, contact our team of experienced Queensland litigation lawyers today.
The blog published by Rostron Carlyle Rojas is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog published. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult RCR on any legal queries concerning a specific situation.
