5.2Accepting that joint and several liability should apply in all cases, there will be a small number of cases where the actual liability a defendant is required to pay is not matched by their share of responsibility as determined by the court. We have concluded that in the interests of fairness there should be provision for an exception that allows that defendant some relief. Such a concession should only be made after a judge has carefully assessed the nature of the obligation that the defendant has breached and its connection to the total loss suffered by the plaintiff. The court would also need to be satisfied that there would still be an effective remedy for the plaintiff. We do not envisage this concession being granted lightly, but we believe it to be an essential brake on the potential injustice from a too thorough-going application of the normal rule. Otherwise, there will be a small number of cases where a defendant who is properly held liable nevertheless bears a much lower proportion of fault or responsibility compared to other liable defendants. If such a liable defendant is forced to pay all or most of the plaintiff’s damages because other defendants are unavailable, it may be difficult to describe that result as fair or just.
5.4In Chapter 4 we discussed and rejected the option of providing a percentage threshold below which parties would be proportionately liable and above which joint and several liability would apply. In this chapter we recommend a reform that would retain joint and several liability for all liable defendants but also address the circumstances of the small subset of truly minor defendants. We propose that legislation set out a statutory definition and a regime for minor defendants, to allow courts and tribunals to grant relief to a minor defendant from the full effects of joint and several liability in cases where that is necessary to prevent injustice.