3. It is a fundamental feature of the existing legal rules governing actions against concurrent wrongdoers that a plaintiff is free to recover the whole of his or her loss from any one of a number of concurrent wrongdoers responsible for that loss. Under this system of “solidary liability”4 a particular defendant can be called upon to pay the entire amount of the plaintiff’s claim even if that defendant’s share of fault is minor compared to that of other concurrent wrongdoers. In some, but not all cases, a defendant called to pay more than his or her “fair share” of damages may be able to claim contribution from other concurrent wrongdoers. The nature and extent of the right of contribution is the main focus of the remainder of the Commission’s reference and will be considered at a later stage.
4. Solidary liability has been criticised as leading to the targeting of deep-pocket defendants, such as public authorities, manufacturers and insurers. Critics of solidary liability argue that it is unjust that a defendant whose comparative fault is minor should be called upon to meet the whole of the plaintiff’s claim simply on the basis of ability to pay. Indeed that ability to pay has been called into question, particularly with respect to public authorities, who have been faced with large increases in insurance premiums and the threat of withdrawal of insurance coverage in certain areas.
5. The doctrine of solidary liability has been the subject of reform in some common law systems, particularly in the United States. The most radical reform would of course be to abandon the system of solidary liability in favour of a system of proportionate liability. Under a system of proportionate liability each wrongdoer would only be liable to the plaintiff for his or her proportionate share of the plaintiff’s loss. To obtain full compensation therefore, a plaintiff would have to sue and recover payment for damages from all concurrent wrongdoers. As well as being procedurally more difficult, this would require the plaintiff to accept the risk that one or more defendants are insolvent or otherwise not amenable to judgment.
6. Although review of the doctrine of solidary liability is not expressly required by our terms of reference, it is clearly a starting point for any consideration of the law of contribution. The question of contribution only arises because a plaintiff is permitted to recover the whole of his or her loss from any one of joint or several concurrent wrongdoers. If a plaintiff were restricted to recovering from a particular defendant only that defendant’s proportionate share of responsibility for the plaintiff’s total loss, there would be no need for a system of contribution between defendants.
7. In this Report the Commission considers whether the doctrine of solidary liability should be preserved, modified or abolished. Most criticisms of the doctrine have been directed towards its operation in the area of tortious liability. For this reason, the Commission has concentrated on this area in its discussion of the operation of the doctrine. However, solidary liability also applies in other areas of the law, for example as between persons concurrently liable in contract or as co-trustees. The arguments and conclusions concerning solidary liability contained in this Report can be generally applied to these areas of the law.
FOOTNOTES
4. So called because each concurrent wrongdoer is said to be liable “in solidum”. Solidary liability is commonly also described as joint and several liability, however, that term is somewhat confusing as the terms “joint” “several” and “joint and several” in fact describe different types of concurrent liability. In the case of each the liability of concurrent wrongdoers is solidary.
