Chapter 2
The current law

History of the rule

2.14The joint and several liability rule arises from common law, dating back hundreds of years.16  Initially the common law provided two sets of rules, one for defendants who were jointly liable and one for defendants who were severally liable.
2.15The case of Merryweather v Nixan17  established that there could be no contribution between tortfeasors. This meant that the plaintiff could sue one jointly liable defendant for the full amount, and that defendant would be unable to join other persons who contributed to the loss or seek contribution after the judgement was executed.
2.16The common law position also provided that several concurrent tortfeasors (that is multiple defendants in tort who committed different wrongs contributing to the same loss) were not able to be joined in a single action. Conversely, joint tortfeasors who participated in the same wrongful act could be sued in a single action. In the case of joint tortfeasors, judgment against one joint defendant discharged all others, even if the plaintiff could not successfully execute the judgment.18  The effect was that several concurrent tortfeasors had to be sued separately until the plaintiff had recovered the loss, while joint tortfeasors had to be sued together at the outset or the plaintiff would risk being unable to recover fully if the first tortfeasor sued could not pay the full amount.

2.17The principle became both a joint and several liability regime in response to the injustices caused by these different rules. Changes were primarily achieved through the Law Reform Act 1936, which brought the rule into its modern form some 130 years after Merryweather was decided. The High Court Rules, (Rule 74 of the High Court Rules, now Rule 4.3, and Rule 138 of the District Court Rules, now DCR 3.33.3) have also since amended the common law position so that a single action can be brought against defendants who are either jointly or severally liable.

2.18In its modern form, the joint and several rule does not prevent defendants from apportioning their responsibility among each other. If a plaintiff chooses to claim from only one of several defendants, the defendant can join the other persons who have contributed to the loss so that they will be allocated their share of the loss. The effect of the law reform was to bring the position of joint tortfeasors into line with the rules applicable for joint trustees, tenant’s direction and insurers.

2.19In addition to the liability of the defendants it may also be the case that the plaintiff’s own actions or omissions may have contributed to the loss which the plaintiff has suffered. In a tort claim, the Contributory Negligence Act 1947 allows for the plaintiff’s level of fault to be taken into account in assessing the damage suffered and the level to which the plaintiff should be compensated. Similar rules have developed separately for claims in equity.

16See for instance Smithson v Garth (1691) 3 Lev 324; 83 R 711.
17Merryweather v Nixan (1799) 8 TR 186;101 ER 1337.
18Brinsmead v Harrison (1871) L R 7 CP 547.