Contents

Chapter 2
Options for allocating liability among multiple defendants

Introduction

2.1This review addresses issues that arise in cases where multiple parties have been found liable for the same loss. This may occur where the liable parties have each contributed to the single loss through separate actions, or where they have together performed or participated in the same action(s) that caused the loss.19
2.2Under the current law in New Zealand, two wrongdoers20 who have caused the same damage will be “jointly and severally liable” to compensate the injured party for the full amount of the loss. Their shared responsibility for the loss requires each of the liable defendants to pay up to the full cost of damages awarded to the injured party to ensure that the injured party receives full compensation.
2.3As discussed in Chapter 1, the system of joint and several liability has been the subject of extensive discussion and debate in the past few decades, and some jurisdictions have moved to alternative systems for allocating liability among multiple defendants. This chapter will outline how these different systems operate in practice, including some of the more significant issues in application.21 The remainder of the Report will draw on this discussion when assessing the problems with the current system and recommending options for reform.
19Although use of terms varies somewhat in different jurisdictions, in tort law persons whose separate or unrelated actions cause a single loss are known as “concurrent tortfeasors”. Persons who acted together (or are deemed to be acting together, for example, partners) and cause a loss are known as “joint tortfeasors”.
20For ease of expression, we will use the term “wrongdoers” to mean parties who have been or who may be found liable in civil litigation.
21More detailed description of different liability schemes can be found in Law Commission Review of Joint and Severable Liability (NZLC IP32, 2012) [Issues Paper].