Chapter 2
The current law

The current position

2.25In summary, the current position in New Zealand law is:

(a) As a general rule, joint and several liability applies in cases with multiple defendants who have together caused indivisible loss;
(b) Contribution and contributory negligence are available in cases pleaded in tort or equity, including cases pleaded concurrently in contract and either tort or equity; but
(c) Contribution and contributory negligence are unavailable in cases brought solely in contract and that do not involve joint wrongdoing or common obligations.

2.26Whether joint and several liability should remain the rule is of course the question that this review sets out to answer.

Q1 In what ways, if any, does joint and several liability work well at present?
Q2 Under joint and several liability each defendant is liable for all the damage they are found to have caused, even if other defendants are also responsible. Is this fair?
Q3 Joint and several liability only applies where the defendants are liable for the same loss or damage. How do you think this “same damage” requirement should be applied in practice?
Q4 Joint and several liability is intended to ensure that the plaintiff is fully compensated for their loss, even if one defendant is missing or insolvent. Is this goal achieved in practice?
Q5 Should plaintiffs be able to recover the full amount of their loss without claiming from all possible defendants who contributed to the damage? If so, why? If not, why not?
Q6 How effectively does apportionment operate in practice? Does apportioning responsibility between several liable defendants do justice between defendants?