Chapter 3
Alternatives to joint and several liability

Introduction

3.1In this chapter, we set out the alternatives that could be adopted if it was decided that New Zealand should move away from joint and several liability (either universally or in a particular sector). At this stage we describe each of the various options and provide examples where relevant of where particular options have been adopted. In Chapter 9 we discuss the arguments for and against each.

3.2The different liability options considered are:

(a) proportionate liability;
(b) various hybrids, involving combinations of elements from two or more of the options (including the status quo);
(c) capping liability; and
(d) contracting out.

3.3There are other alternatives that we do not discuss except in passing. The law regarding duty and liability in negligence for economic loss could be modified. Some classes of professionals could be permitted to incorporate, to better protect themselves from liability. The measures recommended by the Law Commission in 1998 and summarised in Chapter 4 could be adopted. These options lie beyond the terms of this review. We concentrate on the joint and several liability rule, alternatives and possible modifications.