3.33The Law Commission has assessed the relative merits of the two broad liability systems of joint and several liability and proportionate liability and recommends the retention of the joint and several liability system. We do, however, endorse some modifications to the joint and several liability regime. In Chapter 5 we discuss giving the court power to make orders that would mitigate the full application of joint and several liability to liable defendants who have only a minor responsibility for a loss relative to other liable defendants. In Chapter 6 we recommend an expansion of the rules of contribution, to enable the cost of uncollected shares to be more fairly distributed among available and solvent liable defendants. We also discuss some specific measures for the building and construction sector and auditors in the professional services sector in Chapters 7 and 8.
3.35Many have argued that the policy issue comes down to a choice between an innocent plaintiff paying for an absent liable defendant, or an innocent liable defendant paying more than their fair share of a loss. However, this is an incorrect summary of the issue and one which is too commonly made. This statement misunderstands divisible and indivisible loss.
3.37Thus the Commission is of the view that fundamentally the policy issue comes down to a choice between a blameless plaintiff taking on the risk of an absent defendant, or a wrongdoer co-defendant taking on that risk. On this issue, the Commission comes down in favour of the innocent party. Unless there is some substantial reason of public policy that demands some adjustment, parties who have actually caused the harm are the parties who should bear the risk.
3.38As discussed above, the appeal of proportionate liability rests on supporting industry or commerce by promoting economic efficiency. When there is no sound evidence that it would be more efficient within the wider economy for our country as a whole to move this risk to the innocent party via a proportionate liability regime, the Commission finds that there can be no justification to depart from our current rule of joint and several liability.
R1 Where two or more civil defendants are held liable to a plaintiff for the same, indivisible damage, the basis for determining liability should continue to be that of joint and several liability.