9.10The choices for reform are not limited to either joint and several liability and proportionate liability. Modifications to the existing system of joint and several liability are possible, as are modified or partial proportionate liability, or proportionate liability in some circumstances only.
9.11The options include limiting joint and several liability to principal liable defendants. In this case a minor or peripheral defendant will only be liable for their proportionate share of the loss. As noted in Chapter 3, the percentage threshold between a “major” and a “minor” liable defendant will inevitably be arbitrary. This could also lead to further complexity of litigation as various defendants seek to demonstrate that they are in the minor category. But such a system may address one of the most commonly repeated complaints from, for instance, the construction sector – that a sub-contractor or someone else who bears only a small or minimal proportion of overall responsibility for a given damage can end by being forced to pay the full cost.
9.12A further modification would be to apply the principle of contributory negligence to determine whether joint or several liability or proportionate liability should apply. In circumstances where the plaintiff had contributed to the loss, the liability would be determined on a proportionate basis. Where there was no fault on the part of the plaintiff then joint and several liability would continue to apply. As noted in Chapter 3, this would continue to recognise that the blameless plaintiff should not have to bear the risk of the absent or insolvent defendant. Again it might be necessary to have a threshold test of contributory negligence before this principle should apply. It may not be reasonable that a plaintiff should lose the protection of joint and several liability when their negligence had only made a small contribution to the loss.
9.13Both these modifications were considered by the Law Commission during its last review. In its Final Report the Commission did not recommend modification to the joint and several regime in the case where the plaintiff’s contributory negligence had contributed to the loss.
9.14Any modification to the existing regime will introduce new levels of complexity into a liability system that already results in complex litigation. The advantages of the reform for either the plaintiff or the defendant will have to outweigh the disadvantages of increased complexity that modifications to the joint and several liability regime will inevitably cause, while also achieving a result that is as fair as possible.