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Defence Hub — Legal Doctrine
Under Australian law, proportionate liability is a regime that limits each wrongdoer to paying only their individual share of a claimant’s loss — rather than the full amount. Where multiple professionals contributed to the same harm, each is responsible only for the proportion of loss that reflects their own fault. If another wrongdoer cannot pay their share, the claimant bears that shortfall.
Understanding the Defence
Before proportionate liability was introduced, Australian law largely operated on joint and several liability. Under that older principle, if two professionals both contributed to your loss, you could pursue either one for the full amount and leave them to sort out the split between themselves. It was a rule that protected claimants from the financial consequences of one party being unable to pay.
Proportionate liability changed that. Starting in the early 2000s, every state and territory introduced legislation capping each defendant’s exposure to their own share of fault. The applicable provisions are:
One important boundary: proportionate liability does not apply to personal injury claims. It operates on “apportionable claims” — typically those involving pure economic loss or property damage. For most professional negligence claims arising from legal, financial, or accounting advice, it is very much in play.
How It Affects Your Claim
The most direct consequence is this: if proportionate liability applies and one of the wrongdoers cannot pay their share, you bear that loss — not the remaining defendants.
Consider a straightforward example. A property investor suffers significant financial losses after receiving negligent advice from both a financial planner and a solicitor. A court finds the financial planner 70% responsible and the solicitor 30% responsible. Under proportionate liability, the most you can recover from the solicitor is 30% of your total loss — even if the financial planner has since gone into liquidation and cannot pay a cent.
This is a significant departure from how the law previously worked, and it is a real risk that needs to be factored into how a claim is structured from the outset.
Important distinction
Proportionate liability divides fault among professionals who caused your harm. Contributory negligence reduces your compensation because of something you did or failed to do. They are separate doctrines with different effects on your claim.
The Legal Framework
Proportionate liability applies to “apportionable claims.” In most Australian jurisdictions this covers:
Personal injury claims are excluded. If your professional negligence matter involves a physical harm component — a misdiagnosis that allowed a condition to progress, for example — proportionate liability will generally not apply to that aspect of your claim.
The precise definition of “concurrent wrongdoer” varies between jurisdictions. Victoria and Queensland have developed slightly different formulations, and the interaction between state-based negligence law and the Australian Consumer Law has produced complex case law that practitioners need to navigate carefully.
Landmark Cases
This High Court decision is central to understanding how proportionate liability operates in professional negligence matters. The Court considered whether a solicitor could be characterised as a concurrent wrongdoer alongside a fraudulent third party — and confirmed that proportionate liability can apply in solicitors’ negligence claims. The decision underscores that identifying who qualifies as a concurrent wrongdoer, and on what evidence, is a genuinely contested question with direct consequences for what a claimant can recover.
Perhaps the most important decision for claimants. The High Court held that proportionate liability under the Australian Consumer Law can be displaced where a defendant’s conduct was deliberately misleading or dishonest. Where a financial adviser has actively misrepresented a product or concealed material risks, proportionate liability may not apply — leaving that party fully exposed for your total loss.
Practical implication: if your claim has a dishonest element, your lawyers may be able to argue proportionate liability should not apply at all.
This decision explored how the duty to mitigate loss interacts with the proportionate liability framework. It is a useful reminder that proportionate liability does not operate in isolation — it sits alongside the broader rules governing how loss is assessed and whether a claimant took reasonable steps to limit the damage once it became apparent.
Case summaries are provided for educational purposes. Legal outcomes depend on the specific facts of each matter. Always obtain specialist advice for your individual circumstances.
What This Means for You
When a defendant raises proportionate liability, they bear the burden of establishing:
Courts can apportion liability to parties who are not before the court. A defendant may point to a professional you have not sued and argue that party was also responsible — reducing the percentage attributed to the defendant in front of the judge. This is a predictable and common litigation tactic, and one that experienced lawyers prepare for from the outset.
Challenging a proportionate liability defence can take several forms:
Decisions made at the commencement of a claim — who to sue, on what legal basis, in which jurisdiction — can significantly shape which proportionate liability arguments are available to the other side. Getting that foundation right matters.
In most Australian states, professional negligence claims must generally be commenced within 3 years of the date you became aware — or should reasonably have become aware — of the negligence. Missing this deadline can permanently extinguish your right to claim, regardless of how strong your case may be. Proportionate liability does not alter these limitation periods.
If you are unsure whether your limitation period is still open, contact our team for a free assessment as soon as possible.
How We Can Help
When proportionate liability is raised against your claim, the question is rarely just about the law — it is about strategy. Identifying every potential concurrent wrongdoer before proceedings commence, deciding whether to join them, and anticipating the apportionment arguments the other side will run are decisions that shape the ceiling on what you can ultimately recover.
Our team works exclusively for claimants in professional negligence matters. We do not act for the professionals being sued. We do not advise insurers. We do not take defence briefs. That means when we look at a proportionate liability question, we are looking at it through a single lens: what is the best possible outcome for you?
Where the facts support it — particularly where a professional’s conduct involved deliberate misrepresentation or concealment — we will argue that proportionate liability should not apply at all and pursue full recovery. Where it does apply, we work to ensure the apportionment percentages reflect the true weight of each party’s contribution, not the version they put forward.
Having this argument raised against you is not a reason to walk away from a valid claim. It is a reason to make sure you have the right team in your corner from day one.
Our team offers a free, confidential evaluation of your professional negligence matter — with no obligation to proceed. We respond to all enquiries within 1 business day.
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Frequently Asked Questions
No. Proportionate liability is limited to apportionable claims — typically those involving pure economic loss or property damage. Personal injury claims remain subject to joint and several liability principles in most jurisdictions. If your professional negligence claim includes a physical harm component, a different legal framework applies to that aspect of your loss.
This is one of the starkest practical consequences of proportionate liability for claimants. Unlike joint and several liability — where any defendant could be pursued for the full amount — proportionate liability means each defendant is only ever responsible for their own apportioned share. If another concurrent wrongdoer is insolvent or otherwise unable to satisfy judgment, that portion of your loss is not redistributed to the remaining defendants. You bear it. This risk needs to be factored into claims strategy from the very beginning.
Yes. In most jurisdictions, courts can apportion a share of liability to a concurrent wrongdoer who has not been joined as a party to the claim. A defendant may seek to attribute part of the responsibility to someone outside the proceedings, which reduces the percentage — and therefore the dollar amount — you can recover from that defendant. Anticipating this tactic and deciding how to respond to it is part of what specialist legal advice provides.
It can, depending on the nature of the loss. Claims for pure economic loss arising from a solicitor’s error — losing a case, missing a filing deadline that extinguished a right, or negligent advice on a commercial transaction — may fall within the proportionate liability regime. The High Court confirmed in Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10 that solicitors’ negligence claims can give rise to apportionable claims, though whether any individual claim qualifies depends on its specific facts.
Yes, in certain circumstances. The most significant exclusion applies where a defendant’s conduct was intentionally misleading, dishonest, or fraudulent. The High Court held in Selig v Wealthsure Pty Ltd [2015] HCA 18 that proportionate liability under the Australian Consumer Law does not apply in those situations, leaving the defendant exposed for the full loss. Whether a comparable exclusion applies under state-based legislation depends on the jurisdiction and the specific facts. A specialist lawyer can advise whether an exclusion is available in your case.
Related pages: Defence hub | Breach of duty | Causation | Litigation costs
Our goal is to help people in the best way possible. this is a basic principle in every case and cause for success. contact us today for a free consultation.
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