This guide is maintained as a current resource for August 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
Learn how liability is shared between multiple defendants in clinical negligence claims in England and Wales. This comprehensive guide explains joint, several and joint and several liability, how the Civil Liability (Contribution) Act 1978 works, multi‑party proceedings and practical implications for compensation and contribution between defendants.
In clinical negligence claims in England and Wales, it is increasingly common for more than one party to be potentially responsible for a claimant's injuries. Examples include a surgeon's error compounded by hospital staff failures, or care spread across different healthcare settings. When more than one defendant is involved, the law provides mechanisms to allocate liability, determine how compensation is paid, and allow sharing of responsibility. This article explains how liability is shared between multiple defendants, the principles of joint and several liability, how contribution claims work, and what this means for claimants and defendants in clinical negligence litigation.
Multiple Defendants in Clinical Negligence
A clinical negligence claim may involve more than one defendant where different healthcare professionals or organisations are alleged to have breached their duties of care. Typical defendants include:
- Individual clinicians (for example, surgeons, anaesthetists, GPs);
- Employers of clinicians, such as NHS trusts or GP practices (under vicarious liability);
- Healthcare organisations that owed a direct duty of care to the patient (for example, a hospital itself).
When multiple parties have contributed to the claimant's harm, legal rules determine both the claimant's ability to recover compensation and how defendants may share that liability.
Joint and Several Liability Explained
What Is Joint and Several Liability?
Under general English tort law, multiple tortfeasors (defendants) can be liable for the same damage either jointly, severally or jointly and severally. Each has specific implications:
- Joint liability: When defendants are joint tortfeasors - acting together or contributing to the same indivisible harm - they are each responsible for the entire damage suffered by the claimant. A claimant can therefore recover the full amount from any one of them.
- Several liability: Where defendants' contributions to the claimant's overall harm can be divided (for example, discrete periods of negligent care at different facilities), each defendant's liability is separate and limited to the portion of damage they caused.
- Joint and several liability: A hybrid commonly applied in negligence cases where defendants may be jointly liable to the claimant but are severally liable among themselves for their respective shares. This means the claimant can recover the full judgment from any defendant, and that defendant can then seek contribution from co‑defendants who also share responsibility.
In clinical negligence, whether the harm is considered divisible or indivisible is a factual and legal question. Some injuries, particularly those arising from an unbroken chain of failures, may be treated as indivisible harm, making all relevant defendants joint and several tortfeasors.
Contribution Between Defendants
Civil Liability (Contribution) Act 1978
When defendants are jointly or jointly and severally liable for the same damage, one defendant who pays more than their fair share can seek contribution from others under the Civil Liability (Contribution) Act 1978. The Act provides that where two or more parties are liable in respect of the same damage, a defendant can recover a contribution from another defendant, whether or not they have been sued jointly.
Under the Act:
- Contribution is based on what is just and equitable, having regard to each party's share of responsibility.
- A defendant who has paid the claimant may claim from another responsible party the appropriate part of the liability, subject to any limits, reductions or indemnities that might apply.
- Contribution may be pursued either within the original claim (for example, by adding a Part 20 claim under the Civil Procedure Rules) or as a separate contribution action after settlement or judgment.
Practical Application in Clinical Negligence
Consider a case where both a surgeon and a hospital are negligent: the claimant may recover the full compensation from the NHS trust (which usually bears the indemnity under the Clinical Negligence Scheme for Trusts), and the trust can then seek contribution from the surgeon or his indemnifier for that proportion of fault attributable to the surgeon's negligent acts. Courts will often analyse expert evidence to determine how much each defendant's breach contributed to the overall damage.
Apportionment of Liability
Divisible vs Indivisible Damage
Where harm is divisible - separate discrete aspects of injury can be attributed to different negligent acts - courts may apportion liability on a several basis. The claimant would recover the appropriate share from each defendant based on their share of responsibility.
In contrast, where harm is indivisible (for example, a single chain of substandard clinical care causing the claimant's injury), joint and several liability often applies, allowing the claimant to recover damages from any defendant and defendants to sort out the internal apportionment via contribution.
Court Decisions and Principles
Case law in English tort law has developed the principles governing concurrent liability and contribution. Courts consider whether the torts and resulting damage were independent or connected and whether apportionment is logical and fair based on causative potency and responsibility. The Civil Liability (Contribution) Act 1978 provides statutory underpinning for contribution claims, and courts apply it to define what is just and equitable in sharing liability between multiple defendants.
Claimant's Perspective
Recovering Compensation
From the claimant's point of view, having multiple defendants can increase the likelihood of full recovery, especially under joint and several liability. If one defendant lacks funds or becomes insolvent, the claimant may still recover the full amount from other defendants capable of paying. This reduces the practical risk of being unable to secure compensation due to the financial status of one defendant.
Court Proceedings
Claimants can join all potential defendants in a single set of proceedings if their negligence and the damage they caused to the claimant arise from the same factual matrix and are sufficiently connected. This allows efficient management of liability issues and minimizes the risk of separate proceedings. The Civil Procedure Rules (CPR) facilitate multi‑party claims and the addition of Part 20 contribution claims within the same litigation.
Settlements and Releases
If a claimant settles with one defendant, it is critical that settlement agreements clarify whether the claimant releases other potential defendants or preserves their claims against them. A broad release could inadvertently bar claims against other tortfeasors; careful drafting with legal advice is necessary. Contribution rights under the Civil Liability (Contribution) Act 1978 remain available to settling defendants who have not settled out of court, but contractual releases must be interpreted with care.
Key Takeaways
In clinical negligence claims involving multiple defendants in England and Wales:
- Liability may be joint, several, or joint and several, dependent on whether defendants' negligent acts caused indivisible or divisible harm.
- Joint and several liability allows a claimant to recover the full award from any responsible defendant, with defendants then seeking contribution under the Civil Liability (Contribution) Act 1978.
- Contribution claims allocate responsibility between defendants based on what is just and equitable, reflecting their relative fault.
- Multi‑party proceedings under the Civil Procedure Rules allow efficient handling of liability issues in a single court process.
- Claimants must carefully manage settlements and releases to protect rights against co‑defendants.
Understanding how liability is shared is crucial for claimants seeking full compensation and for defendants managing their exposure and contribution rights.
