How does ‘Joint and Several Liability’ protect Accident Victims?

In personal injury actions where there is more than one person found at fault, each of the defendants are equally responsible to pay the full amount of damages to the person who was injured.  This is referred to as ‘joint and several liability’.

This means that, in cases where one of the defendants does not carry enough insurance coverage to pay their share of the accident victim’s damages, the plaintiff may seek additional compensation from another defendant who has the financial resources to pay.  For example, if a municipality is one of the defendants in a car accident lawsuit or a hospital is named as one of several defendants in a malpractice lawsuit, these defendants (who have higher insurance coverage than individuals) may have to pay damages that exceed the insurance policy limits for the other defendant.

The purpose of joint and several liability is to help injured persons who have sustained substantial losses that exceed the insurance limits on a defendant's insurance policy, when there are multiple defendants.   Most personal vehicle insurance policies, homeowner policies or umbrella policies have maximum coverage of 1 Million to $2 Million, and this is sufficient to cover damages in the vast majority of personal injury claims.  However, seriously injured persons sometimes incur losses exceeding $1-2 Million, and these accident victims would be severely disadvantaged if they don’t have access to needed compensation.

Zsoldos v. Canadian Pacific Railway Company (2007) is a personal injury lawsuit involving a motorcyclist who collided with a CP train after dark one evening, on a level crossing in Lambton County, Ontario. The motorcyclist survived the collision, but suffered debilitating injuries, including the loss of both arms and a leg.  In this civil action, the injured man sued CP Rail and the train engineer for damages and CP was determined to be jointly and severally liable for the accident, regardless whether the municipality may also be found liable.  Although CP complied with regulatory requirements and there was a cross buck sign to warn motorists of a level crossing (but no active warning system when trains approach or cross the road), the judge in this case found that CP failed to take reasonable care in the circumstances because CP did not inspect the accident location at night. Had they done so, it would have been apparent that there was an objective risk of harm to motorists approaching the crossing at night – the track was steep; there were no street lights or any other lighting at the location; and motorists would not have sufficient time to stop after seeing the warning sign which was situated quite close to the track (as determined by expert witnesses who gave evidence in the trial).   However, the injured man was found 25 percent contributorily liable for his injuries due to the fact that he had close to (but below) the legal limit of alcohol in his blood and was also driving too fast in the circumstances, including the very dark conditions.

Municipalities have recently been seeking to have the Ontario government abolish joint and several liability. Municipalities argue that they are often named as defendants in personal injury claims simply because they have deeper pockets.  However, this argument goes against the reality of negligence lawsuits, since defendants (including municipalities) are only required to pay damages when they have been found negligent and (wholly or partially) liable for causing the plaintiff’s injuries.

Further, the requirements for finding a municipality liable are, in some respects, higher for municipalities than other defendants.  For example, municipalities require that injured persons give written notice of their claim within ten days of their injury; however, injured persons have up to two years to make a claim against other defendants.  And, if someone slips and falls on an icy sidewalk, they must show that the municipality was ‘grossly negligent’ before the municipality will be found liable for their injuries.  The higher thresholds for municipalities suggests that they do not need additional protection but rather, it is seriously injured accident victims who are most vulnerable and have the greatest need of protection under the law.