Chapter 3
Alternatives to joint and several liability

Exceptions to all alternatives

3.34All of the above alternatives could be made subject to exceptions for certain kinds of wrongdoing. One possibility is an exception making restrictions on liability inapplicable where the defendant is held liable for intentional wrongdoing. Such an exception could be framed generally by applying proportionate liability to all liability in negligence and equivalent claims in contract or equity. Or an exception could be particular, to provide that proportionate liability is the general rule but that joint and several liability still applies to particular intentional tortious or equitable wrongdoing. For instance, an exception could operate so that where a defendant is held to have acted fraudulently or committed the tort of deceit, their liability will be joint and several not proportionate; and/or any cap on liability that would otherwise apply will be ineffective. The justification is that a defendant who has acted intentionally, dishonestly and/or outrageously does not warrant any moderation of their liability, rather the normal common law concern to provide for full compensation of the plaintiff, plus considerations of deterrence, win out.

Q7 Which, of joint and several liability and proportionate liability, do you consider fairer? Why?
Q8 If a system of proportionate liability were introduced, what if any additional measure do you think would be needed to protect plaintiffs, for instance against uncollectable shares?
Q9 Which if any of the hybrids or other alternatives to straight joint and several liability or straight proportionate liability do you prefer? Why?
Q10 If the “peripheral wrongdoer” model is used, do you think it is necessary to include a threshold test or definition in legislation? If you support a statutory threshold, what threshold would you prefer? How should this be applied in practice?
Q11 If the “plaintiff at fault” model is used, should there be a threshold level for contributory negligence by the plaintiff, before proportionate liability applies? If so, what level do you consider appropriate?
Q12 Overall, which of the options for reform or the status quo do you prefer? Why?