2.1 Solidary liability, also known as liability in solidum1 and joint and several liability, occurs in situations where each of two or more concurrent wrongdoers is liable severally and all are liable jointly for the damage caused; the injured person may choose to sue each wrongdoer individually or any number jointly, and also may choose to recover full compensation from any one of the wrongdoers against whom judgment is entered. Proportionate liability is an opposing form of liability which involves a wrongdoer being liable only for that portion of the damage for which he or she is judged to be responsible. Under proportionate liability an injured party can only recover from a particular wrongdoer that proportion of the full compensation which represents the wrongdoer’s liability.
2.2 Since LRC 65 was released in 1990, a further inquiry into the law of solidary liability was instituted by Commonwealth and State Attorneys General and reported by Professor Jim Davis of the Australian National University. The inquiry was completed in 19952 and recommended the introduction of proportionate liability in certain defined contexts.3
2.3 Any change in the law relating to solidary liability necessarily affects rights of contribution, since it is the capacity of the plaintiff to hold each particular defendant liable for the single damage caused that creates the need for a law of contribution. If that capacity is removed, there would no longer be a need for defendants to claim contribution. It follows that, if the Davis Report recommendation for proportionate liability were to be introduced into the law of New South Wales in defined contexts, the need for a law of contribution in those contexts would disappear altogether. It is therefore necessary to revisit the Commission’s conclusions relating to solidary liability.
2.4 The conclusions of LRC 65 and the Davis Report will be reviewed after a brief history of the movement away from solidary liability.
THE MOVEMENT AWAY FROM SOLIDARY LIABILITY
2.5 The most influential proposal to vary the application of the doctrine of solidary liability was put by Professor Glanville Williams in his 1951 publication, Joint Torts and Contributory Negligence.4 Williams’ view was that the doctrine should be relaxed in cases where the plaintiff is contributorily negligent or there are three or more defendants. The aim is to spread the risk arising from an insolvent, or otherwise unavailable, defendant so that the whole burden would not fall either entirely on the remaining defendant(s), as would be the case if the solidary liability were wholly retained, or entirely on the plaintiff, as would be the case if the doctrine were abolished.5 The relaxation of the doctrine would be achieved by giving P (who was contributorily negligent) a primary judgment against D1 and D2 severally, leaving P the option, should D2 prove unable to meet the whole of D2’s liability, of applying to the court for a secondary, or conditional, judgment which would divide liability for so much of D2’s share as remained unpaid between P and D1.6
2.6 Williams’ proposals were adopted by the Civil Liability Act 1961 (Ireland), s 38 of which provides:
(1) Where an action is brought against one or more of concurrent wrongdoers by an injured person who is found in such action to have been guilty of contributory negligence and it is held to be just and equitable that the plaintiff’s damages should be reduced under subsection (1) of section 34 having regard to his contributory negligence, the judgment against one wrongdoer shall not be for the whole of the plaintiff’s recoverable damages but the court shall determine the respective degrees of fault of the plaintiff and of all the defendants to the plaintiff’s claim at the time of judgment, leaving out of account the degrees of fault of persons who are not such defendants, and shall give the plaintiff a several judgment against each defendant for such apportioned part of his total damages as the court thinks just and equitable having regard to that defendant’s degree of fault determined as aforesaid.
(2) The plaintiff, at any time within the period limited by law for the enforcement of judgments and upon proof that, after taking reasonable steps, he has failed to obtain satisfaction of any judgment in whole or in part, shall have liberty to apply for secondary judgments having the effect of distributing the deficiency among the other defendants in such proportions as may be just and equitable.
2.7 Proportionate liability has been found to exist in circumstances where a plaintiff is contributorily negligent in British Columbia, according to the British Columbia Court of Appeal’s interpretation of its Negligence Act.7
2.8 Recent proposals for reform of the law of solidary liability in New South Wales have been made against a backdrop of general concern amongst professional groups about the increasing costs of liability insurance.8 This has been particularly so in the case of accountants and auditors.9 Similar concerns have been expressed in other jurisdictions, such as in England, with attacks on solidary liability there being led by accountants and the building industry.10 In South Australia, Victoria and the Northern Territory, legislation has removed solidary liability from cases involving variously defined building works.11 Some judicial dicta in New South Wales have also drawn attention to the potential for injustice in the current system of solidary liability.12
INTERIM REPORT ON SOLIDARY LIABILITY
2.9 In July 1990 the Commission produced an interim report, LRC 65,13 on solidary liability as part of this reference. The principal conclusions made concerning solidary liability were:
- that the existing general rule of solidary liability should be maintained; and
- that a system of proportionate liability limited to awards for non-economic loss in personal injury cases should not be adopted.
The general rule of solidary liability
2.10 In recommending that the general rule of solidary liability should be maintained, the Commission considered a number of arguments for and against a system of solidary liability as well as those for and against the alternative system of proportionate liability.
Arguments in favour of solidary liability
2.11 The arguments in favour of solidary liability tend to focus on the idea of fairness to the plaintiff in an action for damages:
- First, solidary liability aims to ensure, as much as possible, full compensation for a plaintiff.14
- Secondly, solidary liability has the effect of putting the burden of complex legal proceedings on the defendants, who are often more able to bear it, rather than the plaintiff.15
- Thirdly, each wrongdoer has caused indivisible damage to the plaintiff, therefore it is just that each wrongdoer is fully liable for that damage. The fact of the liability of other wrongdoers should not prejudice a plaintiff’s chance of full recovery.16
Arguments against solidary liability
2.12 Unfairness to defendants. The principal argument against a system of solidary liability is that it can be unfair to defendants. The system encourages plaintiffs to target defendants on the basis of their ability to pay rather than their degree of fault or responsibility. The result is that a defendant may be called upon to pay more than his or her proportionate share of the plaintiff’s damages because of the inability of other concurrent wrongdoers to pay what would otherwise be their proportionate shares. The Commission was not persuaded by this argument in as much as, in the vast majority of cases, each wrongdoer is causally responsible for the whole of the loss to the plaintiff. The issue of the division of responsibility was seen as best arising between the tortfeasors themselves rather than between the plaintiff and individual wrongdoers. Given that contribution proceedings are available it is considered desirable, especially when the plaintiff has not contributed to his or her own loss, that the procedural inconvenience involved in pursuing all concurrent wrongdoers should be shifted to the defendant against whom the action is taken.
2.13 The move to apportionment for contributory negligence. This argument suggests that revision of the doctrine of solidary liability is required because of the move to apportionment for contributory negligence.17 It is argued that, because solidary liability arose at a time when only plaintiffs who were not contributorily negligent could recover damages, a concurrent tortfeasor should not now be in a position of having to bear full responsibility for compensation when a plaintiff, who is partly to blame for his or her own loss, can still receive a proportion of the damages which would otherwise have been due. However, in many cases a plaintiff’s fault is different in kind to that of a defendant. For example, it may be unfair to equate a plaintiff’s failure to take adequate care to safeguard his or her own interests with that of a negligent defendant, who may still be taken to be responsible for the whole of the plaintiff’s loss, or at least the loss after a reduction for contributory negligence.18 The Commission further concluded that the right of a plaintiff to full recovery, even when contributorily negligent, should not be jeopardised by the removal of the doctrine of solidary liability.
2.14 Effect on risk minimisation. The doctrine of solidary liability is said to have a detrimental effect on risk minimisation in that solidary liability encourages plaintiffs to take action against well-resourced defendants no matter what their level of responsibility. This will, it is argued, do little towards encouraging well resourced defendants to engage in risk minimisation. The Commission was not convinced by this argument, first, because it does not take into account the existence of a system of contribution between tortfeasors and, secondly, because the argument concentrates on the incentive to minimise comparative fault rather than the more fundamental concern to avoid negligence altogether.19
2.15 The liability insurance crisis. The doctrine of solidary liability has also been seen as contributing to the growing costs of insurance, in particular in the liability insurance market. These criticisms have arisen largely as a result of the experience in America. The Commission identified a fundamental division of opinion in America as to whether the problems in the liability insurance market are the result of the tort liability system or the practices of the insurance industry itself.20 The Commission also observed that there was no firm empirical evidence to assess the impact of the abolition of the doctrine of solidary liability in those States which had done so as opposed to those which had not. It was noted that it was by no means clear what is the cause of any perceived problems in the Australian insurance market. The Commission concluded:
While there is anecdotal evidence of an increase in cost of insurance in certain areas, particularly relating to local government authorities, the Commission is not satisfied that these problems are sufficiently acute to justify a general abolition of solidary liability. Moreover, it is by no means clear what impact modification of solidary liability would have on these costs in any case.21
2.16 Other law reform bodies have reached similar conclusions.22 The Ontario Law Reform Commission considered the arguments concerning the liability insurance crisis, including claims that there is only anecdotal evidence of a crisis with much of the necessary reliable evidence being in the hands of the insurance industry itself, and concluded that such claims were an unsatisfactory basis on which to alter the present rule of solidary liability.23 In New South Wales the Attorney General’s review of tort liability was “prompted by reports of the cost of insurance, claims of excessive awards of damages and an expansion of findings of liability” but noted in its discussion paper that the review had been “somewhat hampered by the absence of firm statistical data on many of the issues raised” and relied on anecdotal evidence from the various submissions received.24
2.17 Since the publication of LRC 65 attempts have been made in New South Wales to alleviate the “insurance crisis”, not by introducing proportionate liability, but by limiting the liability of professionals. The Professional Standards Act 1994 (NSW), which took effect on 1 May 1995, sets out its objects in s 3:
(a) to enable the creation of schemes to limit the civil liability of professionals and others;
(b) to facilitate the improvement of occupational standards of professionals and others;
(c) to protect the consumers of the services provided by professionals and others;
(d) to constitute the Professional Standards Council to supervise the preparation and application of schemes and to assist in the improvement of occupational standards and protection of consumers.
The Act excludes situations which involve death or personal injury, breach of trust, or fraud and dishonesty.25 A scheme under the Act may apply to any class or classes of an occupational association, or to all members of the association.26
2.18 The liability to damages of a member of such an occupational association may be limited by either a “monetary ceiling” or a “limitation amount”. In the case of a monetary ceiling, where specified as part of a scheme, the limitation has effect for a person who can satisfy the court that he or she has occupational liability insurance cover up to the amount specified in the monetary ceiling,27 or can satisfy the court that he or she holds business assets alone or business assets and insurance coverage amounting to a sum not less than the monetary ceiling.28 A limitation amount, however, is different from a simple monetary ceiling in that it is defined as:
a reasonable charge for the services provided by the person or which the person failed to provide and to which the cause of action relates, multiplied by the multiple specified in the scheme in relation to the person at the time at which the cause of action arose.29
In the case of a limitation amount, where specified as part of a scheme, the limitation operates for a person who can satisfy the court that occupational liability insurance cover up to the amount specified has been effected,30 or that he or she hold business assets or a combination of business assets and insurance sufficient to cover a sum not less than the limitation amount.31
2.19 As at 31 December 1996 three schemes have been approved by the Professional Standards Council:
- the scheme administered by the College of Investigators and Remedial Consulting Engineers of Australia which has set a limitation amount calculated on a multiple of single engagement fees for service;
- the scheme administered by the Institution of Engineers Australia and the Association of Consulting Engineers Australia which has set a limitation amount calculated on a multiple of single engagement fees for service; and
- the scheme administered by the Law Society of New South Wales which has set a limitation amount calculated on a multiple of principals in a firm.32
Arguments against proportionate liability
2.20 Effect on conduct of proceedings. LRC 65 identified a number of practical difficulties involved in setting up a system of proportionate liability as an alternative to solidary liability. The first of these is the question of the manner in which the proportionate share of each concurrent wrongdoer is to be determined.33 It was observed that there would be a problem where all the concurrent wrongdoers were represented in the action, in that the plaintiff would have an interest in the determination of proportionate liability for each defendant. It would, for example, be in the plaintiff’s interest to argue for a greater proportionate liability to attach to the defendants who are most able to pay. Where all the concurrent wrongdoers are not represented in the action, the question arises as to how far a plaintiff should go in taking action against all those who might conceivably be liable in some degree in case one of the other defendants raises those others’ liability in order to minimise their own. Adverse impacts on the cost and efficiency of litigation were foreseen, especially in cases where defendants were subject to winding up proceedings or a petition in bankruptcy.34
2.21 Plaintiffs may be undercompensated. It was also suggested that a plaintiff might be undercompensated in some cases, where an initial determination of liability between the plaintiff and a defendant was different from the proportion determined at a later trial of liability with respect to another defendant.35
2.22 Options for getting around the difficulties alluded to above included restricting the assignment of shares of liability solely to the parties to a particular action together with the implementation of a procedure whereby a defendant may join other defendants to the plaintiff’s claim. This option was still seen by the Commission as expanding the scope and complexity of litigation.
2.23 Effect on settlements. It was also thought that the introduction into litigation of complicated questions of proportionate liability would have the undesirable effect of hindering parties entering into settlements. The resultant uncertainty in litigation was seen as being more likely to benefit defendants, in particular those supported by insurers who are generally in a better position to bear the risk of an adverse finding or protracted proceedings.36
2.24 The Ontario Law Reform Commission identified opposing arguments in this area. On one side it was argued that, if solidary liability were abolished, a defendant’s liability would be lower, easily predicted and settlements would become easier, whereas on the other side it was argued that a reduction of risk at trial might reduce the incentive to settle. Again, the Ontario Law Reform Commission concluded that no reliable conclusion could be drawn from these arguments to warrant a change in the current law.37
2.25 Inappropriate in particular instances. The Commission also recognised that proportionate liability should not be applied in particular cases, the most obvious being in circumstances where one defendant is vicariously liable for the negligence of another defendant. It was considered that the application of proportionate liability in such cases would not be consistent with the principle of vicarious liability and the policy behind it. It was suggested that close consideration should be given to all cases where one party assumes responsibility for another.38
The Commission’s conclusions in the Interim Report
2.26 Balancing the arguments concerning the claims to fairness of both plaintiffs and tortfeasors, the Commission came down in favour of the retention of solidary liability as opposed to a system of proportionate liability:
It is the Commission’s opinion that the existing system of solidary liability coupled with rights of contribution between tortfeasors best reflects the substantive rights and responsibilities of a plaintiff on the one hand and of tortfeasors on the other.39
Proportionate liability for non-economic loss in personal injury cases
2.27 The possible introduction in New South Wales of a system of proportionate liability in respect of damages for non-economic loss in actions in negligence for personal injury became an issue because its introduction was favoured in a Discussion Paper released by the Attorney General’s Department in 1990.40
2.28 In addition to the general objections to a system of proportionate liability discussed above, the Commission had the additional concern about the practical difficulties which would be created by distinguishing between economic and non-economic loss, whereby a plaintiff seeking full recovery for injuries received would have to proceed under two different regimes: one with respect to non-economic loss and the other with respect to economic loss.41
THE DAVIS REPORT
2.29 In February 1994, the Commonwealth Attorney-General and the Attorney General of New South Wales announced an inquiry into the law concerning joint and several liability. The reference given to the inquiry was:
Other areas specifically not considered by the inquiry were the setting of monetary limits on liability for purely economic loss and the range of persons to whom a professional might be liable.
2.30 A Report on Stage One of the inquiry, which sought comments on the various options for reform, was released in July 1994.42 The Report on Stage Two (the “Davis Report”), which made specific recommendations for reform, was completed in January 1995.43 Draft legislation to implement the recommendations of the Inquiry was published in July 1996.44
2.31 The Davis Report made a number of recommendations with respect to the limited introduction of a system of proportionate liability. The principal recommendation was that “joint and several liability be abolished, and replaced by a scheme of proportionate liability, in all actions in the tort of negligence in which the plaintiff’s claim is for property damage or purely economic loss”.45 Three other recommendations followed upon this. The first was that “joint and several liability for negligence which causes only property damage or economic loss be replaced by liability which apportions fault, in all circumstances, among those responsible for the damage or loss”.46 The second recommended that proportionate liability be made available, instead of joint and several liability, for contraventions of s 995 of the Corporations Law and s 52 of the Trade Practices Act 1974 (Cth) and equivalent State provisions.47 The final recommendation arose from concerns expressed in LRC 65 about the application of proportionate liability in cases of vicarious liability and proposed that “any change to the present rules on joint and several liability should be expressed not to apply to instances of vicarious liability”.48
Basis for the principal recommendation
2.32 A number of considerations informed the final recommendations of the Inquiry into the Law of Joint and Several Liability.
2.33 First, it was suggested that the major reason advanced in favour of retaining joint and several liability, namely, that the principal aim of the law of torts is to provide, wherever possible, full compensation to the injured party, was not in doubt with respect to instances of personal injury. However, this aim did not apply with the same force with respect to cases involving only property damage and purely economic loss. The Report doubted “whether the interest in financial security should always be completely protected by law”.49
2.34 The Report went on to suggest that building legislation in Victoria,50 South Australia51 and the Northern Territory,52 which instituted a regime of proportionate liability, showed that there were instances involving damage to property and economic loss where it was appropriate to subordinate the aim of full compensation to the plaintiff.
2.35 The potential for unfairness in the system of joint and several liability was also noted in circumstances where there is only one defendant against whom the plaintiff cannot recover. It was suggested that the plaintiff would then do everything to fix even a small measure of damage on a solvent defendant. This would be unfair in that one who was only marginally at fault would bear the entire responsibility for compensating the plaintiff.
2.36 The Report dismissed concerns raised about practical problems which were foreseen if a system of proportionate liability were introduced as “more apparent than real”,53 and stated that there was no evidence of problems in the Republic of Ireland where the Civil Liability Act 1961 has been in force for over 30 years, in British Columbia where a system of proportionate liability has been in place for 10 years,54 or in various jurisdictions in the United States. In fact, it was stated, British Columbia has demonstrated that all parties need not be joined for settlement negotiations to take place.
2.37 The argument that it is becoming difficult to maintain adequate levels of insurance was also raised, it being stated that the cost of liability insurance for professionals has reached unacceptable levels.
2.38 The Report concluded that the arguments raised in support of the retention of joint and several liability were not appropriate when one focuses on the liability of professionals and others for damage to property and purely economic loss.
Options considered
2.39 In deciding to adopt a system of proportionate liability in all circumstances with respect to property damage and purely economic loss, the Inquiry had regard to other options set out in the following paragraphs.
2.40 Proportionate liability when the plaintiff is partly at fault. This option allowed proportionate liability only in circumstances where the plaintiff was contributorily negligent. The Report argued that, in instances of purely economic loss and property damage, “it is less easy to distinguish between contributing to the damage suffered and contributing to the breach of duty”,55 so that arguments concerning the different nature of a defendant’s liability as opposed to a plaintiff’s could not be so easily maintained. However, it was argued that the effect of such a system was arbitrary where the extent of the liability of a defendant, however marginal, depended on the fault of the plaintiff, however marginal. The option, therefore, was not as fair and just as the recommended option.
2.41 Proportionate division of an insolvent defendant’s share. This scheme allows for a system of proportionate liability only where the plaintiff is contributorily negligent, but also allows that, when a defendant is untraceable or insolvent, that defendant’s share is divided rateably among the remaining defendants and the plaintiff. This is the scheme adopted by the Civil Liability Act 1961 (Ireland) and supported by Glanville Williams. This scheme was not favoured for the reasons already discussed in relation to the first rejected option, but also because it would require a plaintiff to face court proceedings a second time. It was suggested that the costs of the adjudication to allocate the defendant’s share was regarded by some as outweighing the fairness of the ultimate result.
2.42 Proportionate liability and the defendant’s degree of fault. This describes a system whereby a defendant will be proportionately liable so long as the defendant’s share of responsibility is less than a specified percentage. It would, therefore, help those defendants whose degree of fault was relatively minor. However, it was considered that whatever percentage was arrived at as the threshold, it would be an arbitrary distinction, with no rationale for preferring one particular cut-off point over another.56
Evaluation of the Davis Report
2.43 It cannot be said that the aim of full compensation applies more to personal harm than to injury to property or purely economic loss.57 There are some significant legislative schemes in New South Wales which seek to limit liability with respect to personal injury, notwithstanding the apparent concern that personal injury victims receive full compensation.58 Instances can also be envisaged where loss of property or financial security could be absolutely devastating for those concerned. Consider the position of a family whose house, certainly their largest if not only asset, is rendered uninhabitable because of the negligence of a professional. Some plaintiffs might fare better with the loss of, say, an arm than they would if their means of livelihood, and consequently even physical and mental well-being, was destroyed.
2.44 The Building Act 1993 (Vic), while it does institute a regime of proportionate liability, also recognises the need to ensure the defendants are able to pay and, consequently, that plaintiffs are fully compensated by providing for the power to make regulations which:59
Such a provision will ensure that a system which would otherwise be potentially unfair to a plaintiff will, in some cases, protect plaintiffs by requiring that professionals carry insurance to protect against possible insolvency.60
2.45 The systems in Ireland and British Colombia apply proportionate liability in limited instances, such as where the plaintiff is contributorily negligent. They do not involve a complete abrogation of the system of solidary liability and as such they are subjected to criticism in other parts of the Davis Report.61 In British Columbia, the effect of certain sections in the Negligence Act62 was not fully realised until a decision of the Court of Appeal of British Columbia63 interpreted them as providing that, where a plaintiff is found to be contributorily negligent, the liability of the tortfeasors is not solidary but several.64 The British Columbia Law Reform Commission in its 1986 report accordingly recommended that the doctrine of solidary liability not be abrogated where a plaintiff is found to be contributorily negligent. However, it did seek to mitigate the harsh effect of the doctrine by recommending that any uncollectible amount be apportioned between the remaining defendants.65
2.46 The Davis Report does not provide any evidence that the system of proportionate liability works in Ireland. Since there is no evidence one way or the other to support a claim about the success, or otherwise, of such a system, the burden of proof must rest on those who propose so major a change to the law, a burden which has not been discharged.
2.47 The Commission also considers that the following practical difficulties have not been addressed by the Davis Report:
- Problems of extent to which the action between P and D1 creates an estoppel in respect of claims between D2 (D3, D4, etc) and D1.66
- Problems of apportionment: How does a judge apportion in the absence of some defendants, or even all but one defendant? Are other defendants then bound by that apportionment?
- The potential for unwanted complexity which arises from having two sets of rules; one of which applies where economic loss is involved and the other where it is not,67 as well as the complications involved in having cases which only partly involve damage to property or purely economic loss.
2.48 The Commission further sees no necessary reason why arguments in support of the retention of solidary liability are not appropriate when dealing with the liability of professionals and others for damage to property and purely economic loss. Other law reform agencies have agreed either impliedly or expressly that solidary liability should not be abrogated.68
THE COMMISSION’S VIEW
2.49 We, therefore, restate our opposition to the introduction of a system of proportionate liability and remain unconvinced by the arguments put forward in the Davis Report. Our support for solidary liability is, of course, dependent on the existence, in principle, of rights of contribution between joint and several wrongdoers. The rationale for this is examined in the next chapter.
QUESTIONS ARISING IN CHAPTER 2
2.1 Should the existing general rule of solidary liability remain?
2.2 If not, should a system of proportionate liability be adopted?
2.3 Should full compensation to a plaintiff be the first aim of a system of apportioning liability in tort?
2.4 Does the doctrine of solidary liability have a detrimental effect on risk minimisation?
2.5 Is there evidence linking solidary liability with the liability insurance crisis?
2.6 Is limiting the liability of professionals, by legislation such as the Professional Standards Act 1994 (NSW), preferable to the introduction of a system of proportionate liability?
2.7 Should the apportionment of damages for personal injury be approached on a different basis from the apportionment of damages for property damage or purely economic loss?
2.8 Should the apportionment of damages for non-economic loss in personal injury cases be approached on a different basis from the apportionment of damages for economic loss in personal injury cases?
2.9 Should tort law give financial well-being the same protection as physical well-being?
2.10 Should proportionate liability be available only where the plaintiff is contributorily negligent?
2.11 Should the share of an insolvent defendant or one who is otherwise not amenable to the court’s jurisdiction be divided rateably among the remaining defendants and the plaintiff, either generally or where the plaintiff is contributorily negligent?
FOOTNOTES
1. The term in solidum has been adopted by the New Zealand Law Commission, Apportionment of Civil Liability: A Discussion Paper (PP 19, 1992) at para 25 and Ontario Law Reform Commission, Report on Contribution Among Wrongdoers and Contributory Negligence (1988) at 31.
2. J L R Davis, Inquiry Into the Law of Joint and Several Liability: Report of Stage Two (Commonwealth of Australia, 1995); and J L R Davis, Inquiry Into the Law of Joint and Several Liability: Report of Stage One (Commonwealth of Australia, 1994). Draft Model Provisions to Implement the Recommendations of the Inquiry into the Law of Joint and Several Liability (July 1996) have also been released by the New South Wales and Commonwealth Governments.
3. See paras 2.29-2.42.
4. G L Williams, Joint Torts and Contributory Negligence (Stevens & Sons, London, 1951).
5. Williams (1951) at 403.
6. Williams (1951) at 404. See also Williams at 171-172 concerning cases where at least one of three or more defendants is insolvent or otherwise unable to meet his or her share of the liability.
7. RSBC 1979 c 298, s 1 and 4(c). See Leischner v West Kootenay Power and Light Co Ltd (1986) 24 DLR (4th) 641 at 665-667; and paras 2.36 and 2.45.
8. See J L R Davis, Inquiry Into the Law of Joint and Several Liability: Report of Stage Two (Commonwealth of Australia, 1995) at 11; New South Wales, Attorney General’s Department, Tort Liability in New South Wales (Legislation and Policy Division, Discussion Paper, 1990) at paras 4.4.1-4.4.9.
9. See, eg, J Burrows, “Going for Broke” Australian (22 October 1992) at 23; and “Joint and Several Liability-CLA Proposals” (1997) 11(1) Commercial Law Quarterly 21.
10. See England and Wales, Law Commission, Common Law Team, Feasibility Investigation of Joint and Several Liability (Department of Trade and Industry, HMSO, London, 1996) at paras 3.1-3.4. The Common Law Team also noted moves by accountants in Canada: at para 6.10.
11. Development Act 1993 (SA) s 72; Building Act 1993 (Vic) s 131 and 132; Building Act 1993 (NT) s 155 and 156.
12. AWA Ltd v Daniels (1992) 7 ACSR 759 at 877 per Rogers CJ Comm D. But see the comments of Clarke and Sheller JJA (with whom Powell JA agreed) in Daniels v Anderson (1995) 37 NSWLR 438 at 572-573.
13. New South Wales Law Reform Commission, Contribution Among Wrongdoers: Interim Report on Solidary Liability (Report 65, 1990).
14. LRC 65 at paras 11 and 44. See also Ontario Law Reform Commission, Report on Contribution Among Wrongdoers and Contributory Negligence (1988) at 33; New Zealand Law Commission, Apportionment of Civil Liability: A Discussion Paper (PP 19, 1992) at para 168; University of Alberta, Institute of Law Research and Reform, Contributory Negligence and Concurrent Wrongdoers (Report 31, 1979) at 31.
15. LRC 65 at para 16.
16. LRC 65 at paras 14-15. See also Ontario Law Reform Commission, Report on Contribution Among Wrongdoers and Contributory Negligence (1988) at 34.
17. Achieved in New South Wales by Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 10. There are conceptual links between the law relating to contributory negligence and the law relating to contribution. Both are concerned with fairly apportioning responsibility and both become relevant only when the plaintiff has established all the elements of a cause of action against at least one defendant. However, they also raise quite different and separate issues. The principles for apportioning liability between wrongdoers will often be different from those which apply to apportioning liability between plaintiffs and wrongdoers. Some law reform agencies have reviewed both contributory negligence and contribution together: eg, Scottish Law Commission, Report on Civil Liability: Contribution (Scot Law Com No 115, 1988) at Part 4; Ontario Law Reform Commission, Report on Contribution Among Wrongdoers and Contributory Negligence (1988) at Chapter 10; New Zealand Law Commission, Apportionment of Civil Liability: A Discussion Paper (PP 19, 1992) esp at paras 55-67, 113-128 and 188-195. See also Williams (1951) at Part 2.
18. See also Ontario Law Reform Commission, Report on Contribution Among Wrongdoers and Contributory Negligence (1988) at 35. In Ontario a conventional figure is often applied in accounting for a plaintiff’s failure to take care notwithstanding the defendants’ gross negligence.
19. The Ontario Law Reform Commission, while acknowledging that arguments in this area are theoretical and speculative, suggested that potential deep pocket defendants may, in particular, be motivated to implement optimal safety schemes, even those which might otherwise be considered uneconomic: Ontario Law Reform Commission, Report on Contribution Among Wrongdoers and Contributory Negligence (1988) at 39.
20. LRC 65 at para 32.
21. LRC 65 at para 36.
22. University of Alberta, Institute of Law Research and Reform, Contributory Negligence and Concurrent Wrongdoers (Report 31, 1979) at 33; New Zealand Law Commission, Apportionment of Civil Liability: A Discussion Paper (PP 19, 1992) at para 167; cf paras 84-89.
23. Ontario Law Reform Commission, Report on Contribution Among Wrongdoers and Contributory Negligence (1988) at 38.
24. New South Wales, Attorney General’s Department, Tort Liability in New South Wales (Legislation and Policy Division, Discussion Paper, 1990) at paras 3.1-3.2.
25. Professional Standards Act 1994 (NSW) s 5.
26. Professional Standards Act 1994 (NSW) s 17.
27. Professional Standards Act 1994 (NSW) s 21.
28. Professional Standards Act 1994 (NSW) s 22.
29. Professional Standards Act 1994 (NSW) s 23(1)(a)(ii).
30. Professional Standards Act 1994 (NSW) s 23(1)(a).
31. Professional Standards Act 1994 (NSW) s 23(1)(b).
32. New South Wales, Professional Standards Council, Annual Report 1996 at 11.
33. LRC 65 at para 38.
34. See also Ontario Law Reform Commission, Report on Contribution Among Wrongdoers and Contributory Negligence (1988) at 40.
35. LRC 65 at para 40.
36. LRC 65 at para 42.
37. Ontario Law Reform Commission, Report on Contribution Among Wrongdoers and Contributory Negligence (1988) at 40.
38. LRC 65 at para 43.
39. LRC 65 at para 45.
40. New South Wales, Attorney General’s Department, Tort Liability in New South Wales (Legislation and Policy Division, Discussion Paper, April 1990) at para 4.4.
41. LRC 65 at para 47.
42. J L R Davis, Inquiry into the Law of Joint and Several Liability: Report of Stage One (Commonwealth of Australia, 1994).
43. J L R Davis, Inquiry into the Law of Joint and Several Liability: Report of Stage Two (Commonwealth of Australia, 1995) (“Davis Report”).
44. Draft Model Provisions to Implement the Recommendations of the Inquiry into the Law of Joint and Several Liability (July 1996).
45. Davis Report at 34.
46. Davis Report at 36.
47. Davis Report at 39.
48. Davis Report at 41.
49. Davis Report at 32.
50. Building Act 1993 (Vic) s 131 and 132.
51. Development Act 1993 (SA) s 72.
52. Building Act 1993 (NT) s 155 and 156.
53. Davis Report at 33.
54. For a history of the provision, which was in force, but its effect not appreciated, before 1986, see para 2.45.
55. Davis Report at 36.
56. But this is not a problem with contributory negligence.
57. An example of an argument in favour of separate treatment of instances of injury to property or purely economic loss may be found in the Attorney General’s 1990 review of tort liability where it was argued that “[t]here is no interference with a plaintiff’s physical ability to work and earn money and therefore no compensation for the loss of this capacity. The plaintiff will not be forced to rely on the social welfare system and will not require ongoing medical and other care”: New South Wales, Attorney General’s Department, Tort Liability in New South Wales (Legislation and Policy Division, Discussion Paper, 1990) at para 4.45.
58. Motor Accidents Act 1988 (NSW) Part 6; Workers Compensation Act 1987 (NSW) Part 5. See also J Swanton and B McDonald, “Reforms to the Law of Joint and Several Liability-Introduction of Proportionate Liability” (1997) 5 Torts Law Journal 109 at 121.
59. Building Act 1993 (Vic) s 135(1).
60. See also Swanton and McDonald at 113.
61. See para 2.41.
62. RSBC 1979 c 298, s 1 and 4(c).
63. Leischner v West Kootenay Power and Light Co Ltd (1986) 24 DLR (4th) 641 at 665-667.
64. Citing Samuels JA’s interpretation of the British Columbia Act in Barisic v Devenport [1978] 2 NSWLR 111 at 149. See also Williams (1951) at 409.
65. Law Reform Commission of British Columbia, Report on Shared Liability (LRC 88, 1986) at 22. This recommendation was more than the mere reversal by the British Columbia Law Reform Commission identified by the New Zealand Law Commission, Apportionment of Civil Liability: A Discussion Paper (PP 19, 1992) at para 167.
66. See paras 4.27-4.31.
67. This would be further complicated by the suggestion that statutory claims arising out of consumer transactions should also be exempted: see Draft Model Provisions to Implement the Recommendations of the Inquiry into the Law of Joint and Several Liability (1996) at 3.
68. Express statements may be found in University of Alberta, Institute of Law Research and Reform, Contributory Negligence and Concurrent Wrongdoers (Report 31, 1979) at 31-33; Ontario Law Reform Commission, Report on Contribution Among Wrongdoers and Contributory Negligence (1988) at 46-48; New Zealand Law Commission, Apportionment of Civil Liability: A Discussion Paper (PP 19, 1992) at para 167, but see discussion at paras 93-98.
