A. The Case for General Reform of the Doctrine
44. Solidary liability facilitates the recovery of damages by a plaintiff who has suffered loss. Abolition of the system would prejudice the position of plaintiffs and would lead to some plaintiffs who would presently receive full compensation being undercompensated. This of itself is not a justification for continuation of the principle if it could be shown that its operation was unfair or unworkable. However, in the Commission’s opinion, any such arguments would have to be firmly established in order to justify change. As is apparent from the above discussion of criticisms of the rule, the Commission does not believe that a firm case for abolition of the rule can be made out.
45. In the Commission’s opinion, consideration of arguments concerning fairness as between the plaintiff and tortfeasors weigh in favour of retention of solidary liability and against a system of proportionate liability. It is the Commission’s opinion that the existing system of solidary liability coupled with rights of contribution between tortfeasors best reflects the substantive rights and responsibilities of a plaintiff on the one hand and of tortfeasors on the other. An argument can be made for some modification of solidary liability to allow for apportionment of the risk of insolvency of one or more wrongdoers in cases in tort where the plaintiff is guilty of contributory negligence. However, in light of the contrary considerations discussed above at paragraphs 25 to 27, the Commission has come to the conclusion that a sufficiently strong case for reform cannot be established. The major argument that can be advanced for a movement to a system of proportionate liability is that concerning the need to ensure the continued availability of affordable insurance coverage. As stated earlier, the Commission does not believe that the available evidence in this area justifies the abolition or modification of solidary liability. Moreover, the Commission considers that there are real practical and other difficulties associated with the adoption of a system of proportionate liability.
46. Accordingly, the Commission has come to the conclusion that a general movement away from solidary liability cannot be justified. The Commission therefore recommends that the existing general rule of solidary liability should be maintained. This recommendation is consistent with those made by other Commonwealth law reform agencies which have considered this matter in recent years.21 It remains to be considered whether the more limited proposal for reform put forward by the Attorney General’s Department should be proceeded with.
B. Abolition of Solidary Liability in Respect of General Damages in Personal Injury Cases
47. The favoured view of the the Attorney General’s Department in its Discussion Paper was that a system of proportionate liability should be adopted in respect of damages for non-economic loss in actions in negligence for personal injury.22 Although the limited scope of this proposal will restrict its potential for hardship to plaintiffs,23 the Commission still finds it difficult to support. In addition to the general factors weighing against a system of proportionate liability discussed above, the Commission has reservations about the fragmented approach suggested by the Discussion Paper. To distinguish between economic and non-economic loss in the manner suggested would create substantial practical difficulties. A plaintiff seeking full recovery would have to proceed under two different regimes. A system of rules governing proportionate recovery would still be needed, but would apply to what might be only a small part of the plaintiff’s overall claim. The practical result might be that some plaintiffs would drop their claim for general damages, or at least choose not to proceed against particular defendants. This does not seem a fair way of rationalising the cost of general damages claims.
40. The Commission recognises that questions of cost may play a part in relation to liability and assessment of damages in personal injury cases. However, it seems unlikely that the savings flowing to insured defendants from the abolition of solidary liability in respect of non-economic loss would have a significant impact on the availability of insurance or the levels of premiums. The Discussion Paper itself suggests that a limit of $180,000 should be placed on general damages claims and that this figure should be awarded in only the most extreme cases, with other cases being assessed in proportion to that figure having regard to the relative severity of injury. Moreover, in cases of serious injury the amount awarded for non-economic loss will normally be only a small proportion of the total award of damages, particularly having regard to the likely component for loss of future earnings. While the proportion of non-economic loss to total damages might be more significant in cases of minor injury, the level of award in these cases will be fairly low and, in any case, the system of deductibles put forward in the Discussion Paper should serve to limit the number of such claims.
49. For the reasons just stated, the Commission recommends against the adoption of a system of proportionate liability limited to awards for non-economic loss in personal injury cases.
FOOTNOTES
21. Ontario Report, note 13 above, at 30-33; New Zealand Contracts and Commercial Law Reform Committee Working Paper on Contribution in Civil Cases (1983) at 5-10; Institute of Law Reform and Research, Alberta Report on Contributory Negligence and Concurrent Wrongdoers (Report No 31, 1979) at 30-33.
22. See para 10 above.
23. The Discussion Paper cites the potential for hardship to plaintiffs as the reason why proportionate liability should not also apply in respect of an injured plaintiff’s economic loss.
