04/03/2025

Proportionate Liability Legislation:

The Civil Liability Act (2002) - Introducing Proportionate Liability

This note forms part of a series of notes about proportionate liability legislation in Western Australia. For more in this series, or for notes in other series or on other relevant topics of interest, please see: www.geoffreywakerandassociates.com.au

This note is the second in the series and follows “Joint and several liability, versus proportionate liability”, which would benefit any reader who wishes to learn or refresh their knowledge about the difference between joint and several liability and proportionate liability.

Introducing proportionate liability

The Civil Liability Act (WA) (CLA) was passed in 2002. It originally had only two operational parts: the first part dealt with claims for damages for personal injuries (including death) and the second part regulated advertising and touting for legal services relating to personal injury. The CLA originally did not apply to tortious claims generally, for example it did not apply to torts causing solely economic loss such as claims for negligent misrepresentation.

In 2003 the scope of the CLA was expanded in a number of ways. It was expanded to partly codify, and in some cases vary, certain common law rules of negligence in relation to foreseeability, standard of care, causation and remoteness of damage, contributory negligence, and assumption of risk etc.

Additionally, the 2003 amendment replaced the concept of joint and several liability with proportionate liability as the basis for assessment of claims for damages for pure economic loss. (Joint and several liability remain the basis for assessment of damages for claims in respect to personal injury claims). The significant changes were introduced in Parts 1A, 1B, 1C, 1D, 1E and 1F.

The expansion of scope of the CLA required new definitions for harm and personal injury in the Act. The definition of harm is required as the extended provisions of the Act applied beyond personal injuries claims to cover any claims for damages based in the law of negligence. The new definition of harm means harm of any kind, including personal injury, damage to property and economic loss.

When these significant changes were introduced, the CLA provided that the changes would not restrict a person’s right to make express provision for their rights under contract. Such contracting out requires agreement in writing (s4A – Contracting Out) (See our subsequent paper on Contracting Out).

Part 1F introduced proportionate liability, which applies only to “apportionable claims” (a consequential amendment to the Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 was introduced).  

Section 5AI defines apportionable claim and concurrent wrongdoer for the purposes of Part 1F. A concurrent wrongdoer means, in relation to a claim, “a person who is one of 2 or more persons whose act or omission caused, independently of each other or jointly, the damage or loss that is the subject of the claim.”

In our earlier paper, ‘Joint & Several Liability, versus proportionate liability’, we used the term “multiple wrongdoers” to encompass two different scenarios where there is wrongdoing by 2 or more persons that causes harm to a person (following the explanation contained in the Ipp Report). In that paper, “concurrent wrongdoer” described two wrongdoers acting independently of one another, but their various actions caused the same harm to another. Alternatively, in the scenario where 2 or more parties act jointly (rather than independently) to cause the same harm, those parties were “joint wrongdoers”. For the purposes of the CLA, the term, “concurrent wrongdoer” is defined to capture both these scenarios – where 2 or more parties act either independently or jointly to cause the same harm to a person. (The Ipp Report referred to these as “multiple wrongdoers”).

An apportionable claim is a claim for economic loss or damage to property in an action for damages (whether in contract, tort or otherwise) arising from a failure to take reasonable care OR a claim for economic loss or damage to property in an action for damages under the Fair Trading Act 1987 for a contravention of section 10 of that Act. There is a single apportionable claim in proceedings in respect of the same loss or damage even if the claim for the loss or damage is based on more than one cause of action.

Following a 2004 amendment, proportionate liability applies to an apportionable claim even though the respective obligations of the defendants may have different sources (e.g. tort, contract, or statute). There is a single apportionable claim in proceedings in respect of the same loss or damage, even if the claim for the loss or damage is based on more than one cause of action (see s 5AJ), so it is important to identify the actual loss or damage that the plaintiff is claiming for in the action for damages, (regardless of whether it is in contract, tort or otherwise, and even if it is based on more than one cause of action).

Next in this Series on Proportionate Liability Legislation:

‘The Civil Liability Act (2002) – Contracting Out’.

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