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Endnotes

^[1]This recommendation makes it unnecessary for present purposes to debate whether Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 was rightly decided, or whether the Australian criticisms of Day v Mead [1987] 2 NZLR 443 are warranted (see Meagher et al, para 2304), or to discuss the bold first instance assertion in Dairy Containers Ltd v NZI Bank Ltd [1995] 2 NZLR 30, 76.

^[2]This draft is simply an exhibition of ineffectual thinking on the part of those responsible for it – unable to foresee what may happen as a result of their proposed reforms, they seek to prevent catastrophe by throwing everything into the lap of the judge. (Turner, 420; see also 421)

A cautionary example is the uncertainty created by the Fair Trading Act 1986 s 43(2)(d) which introduces a novel discretion into the court’s power to award damages in contexts relevant to this report (see the Court of Appeal decisions in Goldsbro v Walker [1993] 1 NZLR 394 and Foseco New Zealand Ltd v Cumberworld Contracting Ltd (1997) 6 NZBLC 102,033).

^[3]We record that an alternative approach to a middle position is the introduction of proportionate liability in certain industry-specific situations and that such an arrangement has been adopted in the building legislation in force in Victoria (Building Act 1993 ss 131–132), South Australia (Developments Act 1993 s 72), and the Northern Territory (Building Act 1993 ss 155–156).