01/10/2024

Proportionate Liability Legislation:

Joint & several liability, versus proportionate liability

This note forms part of a series of notes about proportionate liability legislation in Western Australia. For more in this series, or for notes in other series or on other relevant topics of interest, please see: www.geoffreywalkerandassociates.com.au

We acknowledge and we are indebted to the Final Report, September 2002 of the Review of the Law of Negligence (“Ipp Report”) parts of which we have cited for the purposes of explaining the concepts of proportionate liability and joint & several liability.

The concepts of joint & several liability and proportionate liability

“This area of the law is concerned with situations in which the same damage is caused by negligence (or other legal wrong) on the part of more than one person.” There are two different types of case, called ‘joint’ wrongdoing and ‘concurrent’ wrongdoing, respectively.

“Joint wrongdoing occurs where two or more people act together, and their concerted action causes harm to another. Concurrent wrongdoing occurs where two or more people act independently of one another, but their various independent actions cause harm – the same harm – to another.” The term ‘multiple wrongdoers’ covers both types of case.

Under the concept of ‘joint and several liability’ “multiple wrongdoers” are ‘severally liable’. This means that each wrongdoer can be held liable for the full amount of any damages awarded to the plaintiff, and the plaintiff is entitled to seek to recover the full amount of those damages from any of the people held liable. Of course, the plaintiff can only recover once, but is free to get as much of the total amount due as it is possible to get from any of the persons held liable. This maximises the plaintiff’s chance of full recovery. If, for instance, there were two wrongdoers and one of them is solvent and the other is insolvent, the plaintiff is entitled to recover the full amount of the damages from the solvent wrongdoer. This phenomenon is sometimes referred to as ‘solidary liability’ (as opposed to ‘proportionate liability’).”

“Any and every one of a number of multiple wrongdoers is entitled to recover ‘contribution’ from the others towards any amounts paid to the plaintiff. Under the statutes dealing with contribution, the court has a very wide discretion to ‘apportion’ the liability between various wrongdoers in such proportions as the court thinks just. The most important practical consequence of solidary liability is that the risk that one or more of the multiple wrongdoers will not be available to be sued or will not be able to pay the damages awarded, rests on the other wrongdoers rather than on the plaintiff.”

As regards contribution between parties liable for the same harm “under a regime of solidary liability, the plaintiff can recover, from each party liable for the same harm, damages for the total harm suffered; and each liable party has a right to recover from the other liable party (or parties) a contribution towards those damages proportionate to the latter party’s responsibility for the harm.”

Contrasted with solidary liability (or ‘joint and several liability’, as described above), is proportionate liability. “Under a regime of proportionate liability, liability for the harm caused (jointly or concurrently) by the multiple wrongdoers is divided (or ‘apportioned’) between them according to their respective shares of responsibility. A plaintiff can recover from any particular wrongdoer only the proportion of the total damages awarded for which that wrongdoer is held liable, assessed by reference to the wrongdoer’s comparative degree of responsibility (defined in terms of the statutory criterion or criteria). The main practical effect of proportionate liability is that the risk that one or more of the multiple wrongdoers will be unavailable to be sued, or will be insolvent, rests on the person who suffers the harm.”

“Under a regime of proportionate liability, the plaintiff can recover damages, from each party liable for the same harm, only for that proportion of the harm for which each is held responsible. It follows that no liable party has a right to recover contribution from any other liable party towards the damages which the former has to pay.”

Next in this Series on Proportionate Liability Legislation:

‘The Civil Liability Act (2002) – Introducing Proportionate Liability’.

(Available under ‘Insights’ here: www.geoffreywalkerandassociates.com.au)

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