Chapter 2
The current law

Liability in civil proceedings

2.3At the most basic level, civil proceedings are concerned with righting wrongs and determining costs between different parties. Thus, in a claim for a breach of contract, the Court will generally seek to put the wronged party in the same position they would have been had the terms of the contract been performed.11 In a tort claim, the Court will seek to put the injured party in the same position they would have been in had the harm not occurred.12
2.4Joint and several liability will apply where more than one party is in breach of obligations imposed through tort, equity or contract and these breaches together cause the same loss or damage.13 The rule arises out of the common law approach to causation and liability. The law meets its overriding concern to correct harm and compensate injured parties by requiring the party or parties who have caused the injury to fully compensate the injured party.
2.5Joint and several liability will apply in negligence if more than one defendant has breached the same or different duties of care that they owe to the plaintiff, and each breach of duty is a proximate cause of the loss suffered. If on the other hand, the defendants commit multiple breaches, but these cause separate, distinguishable items of loss or damage, each defendant will be liable for the separate damage they have caused and joint and several liability will not apply. Where there is one indivisible loss and each breach of duty is found to have caused that loss, then each defendant will be liable for the full loss. For example, in the case of Thompson v London County Council 14 the first defendant excavated near the plaintiff’s property, while the second left a water main turned on. The combined excavation and flooding caused the plaintiff’s house to subside. As the loss was caused by both negligent actions and could not be separately apportioned, the defendants were held to be jointly and severally liable.
2.6Civil liability is fundamentally concerned not with punishing defendants, but rather with compensating the injured plaintiff.15  Joint and several liability can be seen as a corollary of this principle because the plaintiff’s loss determines the compensation payable, not the relative level of the defendant’s wrongdoing compared to that of other defendants.
11John Burrows, Jeremy Finn, and Stephen Todd Law of Contract in New Zealand (4th ed, Lexis Nexis, Wellington, 2012) at [21.2.1] – [21.1.1(a)].
12John Smillie “Remedies” in Stephen Todd (ed) The Law of Torts in New Zealand (5th ed, Brookers, Wellington, 2009) at [25.2.01].
13Parties in contract may however agree in their contract the extent to which they will be liable to one another, for breaches; and if applicable how liability may be apportioned among multiple parties.
14Thompson v London County Council [1899] 1 QB 480.
15Stephen Todd “General Introduction” in The Law of Torts in New Zealand at [1.2.01].