Apportionment in Private Law

Kit Barker, Ross Grantham, Kit Barker, Ross Grantham

• Publisher: Hart Publishing
• Year: 2018
• Print ISBN: 9781509944941
• eBook ISBN: 9781509917495
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho comparado

This collection of essays investigates the way in which modern private law apportions responsibility between multiple parties who are (or may be) responsible for the same legal event. It examines both doctrines and principles that share responsibility between plaintiffs and defendants, on the one hand, and between multiple defendants, on the other. The doctrines examined include those 'originating' doctrines which operate to create shared liabilities in the first place (such as vicarious and accessorial liability); and, more centrally, those doctrines that operate to distribute the liabilities and responsibilities so created. These include the doctrine of contributory (comparative) negligence, joint and several (solidary) liability, contribution, reimbursement, and 'proportionate' liability, as well as defences and principles of equitable 'allowance' that permit both losses and gains to be shared between parties to civil proceedings. The work also considers the principles which apportion liability between multiple defendants and insurers in cases in which the cause, or timing, of a particular loss is hard to determine. The contributions to this volume offer important perspectives on the law in the UK, USA, Canada, Australia and New Zealand, as well as a number of civilian jurisdictions. They explicate the main rules and trends and offer critical insights on the growth and distribution of shared responsibilities from a number of different perspectives – historical, comparative, empirical, doctrinal and philosophical.

PART I

Frameworks, Ethics and Politics

1

Apportionment in Private Law: Nothing, All, or Something in Between?

KIT BARKER*

I.Introduction

One aspect of the increased complexity of private law in the late twentieth and early twenty-first centuries is the rise in the incidence and intricacy of rules designed to apportion responsibility between multiple parties for losses and gains that are legally attributable to more than one of them. As Tony Weir observed in 2004 in an article to which the title of this chapter pays tribute, the law has moved, within a relatively short timeframe, from a formal stance in which civil liability is an ‘all-or-nothing’ business to one in which it is ‘shared’ through a set of compromise solutions.¹ Tort plaintiffs whose own careless conduct might previously have led their claims to fail by virtue of strict causation rules, or through the application of the total defence of contributory negligence can hence now often recover something for their injuries. Defendants who, under the old system, were held 100 per cent liable in damages for indivisible injuries for which they were responsible in common with other parties, can obtain contribution or reimbursement (indemnity) from those other parties.² Similarly, in the field of gain-based private law claims, there has been a gradual transition from rules in which causes of action are relatively hard to establish, but ‘total’ on success, to ones in which the basic preconditions to establishing a claim are less exacting, but the resulting liabilities are more often partial. Defendants can thus now offset against their liabilities for unjust enrichment the losses they have themselves been (or may be) caused by innocent changes in their position³ and they can – through the operation of ‘equitable allowances’ or conditions attached to orders for rescission – offset the value of contributions they have themselves made to gains obtained (or claimed by) a plaintiff.

Most recently and perhaps most controversially, there has been a widely-documented drift in some (but not all) common law jurisdictions away from systems of ‘solidary’ (joint and several) liability towards ‘proportionate’ liability,⁴ so that multiple defendants responsible for the same indivisible injury are no longer even in principle liable to a plaintiff for the whole damage caused, but only for such proportion of it as a court finds them to be responsible, relative to other responsible parties.⁵ This is another, modern, ‘sharing’ solution, albeit one of a very different type and one which, unlike the previous examples, designedly operates to the prejudice of plaintiffs, so as to redistribute the burden of procedural hurdles, evidential difficulties and insolvency risks away from defendants and their insurers. It can leave a significant proportion of those suffering indivisible loss caused by multiple defendants with gaps in their compensation. Whilst such individuals were previously guaranteed full recovery, provided only that they could identify and sue at least one of those responsible, they must now accept only partial compensation in any case in which it proves impossible to successfully sue all of them.

Weir avoided speculating upon the explanations or justifications for these trends. Apportionment, he sagely observed, is a ‘twisted path’⁶ that itself invites mixed reactions and is born of mixed motivations. There are only limited commonalities across different legal systems and the criteria underpinning courts’ decisions of how to apportion responsibility (for example, parties’ ‘relative fault’ and the ‘causal potency’ of their conduct) are notoriously difficult to apply in practice, even when they are agreed upon. This can result in uncertainty and potentially prejudice out-of-court settlements. The high degree of variation in the form of the relevant legislation within some federal legal systems can also result in different regimes applying to litigants, depending simply on their postcode.⁷ Although ‘sharing’ solutions are often presented as if they are always more logical, morally sophisticated and ‘fair’, this is also only true in some instances. As Richard Wright shows in the next chapter, the language of ethical superiority is often pure rhetoric. Much depends on who is sharing what, with whom, and why. On occasions, it is true, the sharing of losses and gains is indeed a response to intuitions concerning parties’ proper respective moral responsibility for the consequences of their conduct.⁸ On other occasions, however, as in the case of recent proportionate liability reforms, ‘shared liability’ is simply a synonym for ‘less’ liability for defendants and constitutes the product of the successful lobbying efforts of particularly powerful defendant groups that have managed to gain the ear of governments.

It cannot be assumed, therefore, that the idea of ‘sharing’ has any particular moral valence and recent commentaries have begun to count the costs, as well as benefits, of ‘partial’ solutions – particularly those in which the divisions and compromises are discretionary rather than ‘pre-set,’ and even more so when they result in the under-compensation of those who have been wronged. Some are accordingly now pressing for a return to more clear-cut, ‘digital’ (on-off) rules, at least in some instances.⁹ With notable exceptions, few empirical studies have been done to determine the actual effects of the changes in apportionment rules that have occurred in terms of the rates or distributions of recovery; economic analysis of the rules is often complex and inconclusive¹⁰ and commentators and courts remain unclear even about their precise rationale. It is hence still a matter of contention whether the rules instantiate norms of corrective¹¹ or distributive justice;¹² whether they are principled or pragmatic in nature; and whether the benefits of their apparent technical subtleties outweigh the burden of the uncertainties they bring. When it comes to reform, commentators are also divided as to whether the best response to the fractured chaos of recent proportionate liability legislation in Australia and the United States is to try to tidy it up and make it uniform, repeal it completely, or replace it with more targeted solutions designed to protect defendants against ‘excessive’ exposure, such as capping their liabilities in particular spheres of risk, or even cutting back on their primary legal duties altogether in respect of certain types of harm. Caught mid-stream, reformers are uncertain of their footing and questioning whether it is better, when in blood stepped in so far, to return, or go o’er.¹³

II.Aims and Overview

The aim of this book is to tackle some of these difficult modern debates across a variety of different common law and civilian jurisdictions, from a number of different perspectives – historical, doctrinal, empirical, and theoretical. In doing so, it canvases a wide variety, but by no means all, apportionment doctrines and readers should look elsewhere for comprehensive statements of the rules.¹⁴ The book is divided into four parts, replicated in the later structure of this chapter. There is significant connection and overlap between the different parts.

Part 1 (‘Frameworks, Ethics and Politics’) maps some of the legal, ethical and political frameworks within which modern apportionment exercises take place. It provides some terminological and analytical guidance to the field; explores the rationale(s) of some of the different types of apportionment rule and gives an overview of the ways in which different legal systems (common law and civilian¹⁵) deal with the allocative questions they throw up.

Part 2 (‘Originating Doctrines’) interrogates some of the most important substantive rules that give rise to ‘shared’ liabilities, focusing in particular on the doctrines of ‘vicarious’ and ‘accessorial’ liability. Although these doctrines do not, strictly speaking, govern the proportion in which different parties are held liable for events brought about by them all, the reasons why such defendants share liability must, I argue, influence the way that liability is subsequently distributed between them. Unfortunately, as the contributions to this Part illustrate, the reasons for vicarious and accessorial liabilities are various, contested and unstable, which currently makes it hard either to predict the incidence of the liabilities themselves, or to make many generalisations about the way in which they should be apportioned.

Parts 3 and 4 of the book then provide a detailed assessment of key apportionment rules. Part 3 (‘Plaintiff-Defendant Apportionment’) focuses on devices that apportion gains and losses between plaintiffs and defendants – the modern defence of contributory (comparative) negligence, the restitutionary defence of change of position, and the principles governing awards for breach of fiduciary duty, where losses and gains are hard to assess with certainty and where courts apportion the risks of the uncertainties through quantification rules. Part 4 (‘Apportionment Between Defendants’) finishes with an examination of principles regulating the liability inter se of multiple defendants who are (or may be) responsible for the same, indivisible harm. These include the doctrines of contribution, solidary (‘joint and several’) and ‘proportionate’ liability, together with some exceptional causation rules developed in the United Kingdom in the context of asbestos-related claims, that allow the risk of some, very specific types of causal uncertainty to be distributed between defendants, so as to partialise their liability. This part takes in many of the recent debates concerning proportionate liability reform and provides an important insurer’s perspective on cases involving uncertain risks.

III.Frameworks, Ethics and Politics

‘Partial’ solutions are nothing new. Weir refers to their presence in Roman systems.¹⁶ He also hints at the strong probability that, before contributory negligence ceased to be a total defence to tort claims in the UK in 1945, civil juries regularly made informal apportionments of responsibility behind closed doors¹⁷ by fixing damages in ways that achieved compromise between careless plaintiffs and wrongdoing defendants. This sidestepping of the old, blunt ‘all-or-nothing’ rule may therefore have been formalised by the legislative change, but was probably hiding in the system long before this date. Actions for contribution and reimbursement are also ancient, dating back in equity to at least 1629, but probably much earlier at common law.¹⁸ What is more modern is their wider availability to tortfeasors and others liable for the same damage¹⁹ and the emergence around them of a new intellectual architecture (unjust enrichment), importing fresh thinking about their rationale, availability and quantification.²⁰ The same architecture is responsible for re-invigorating debate about equitable allowances for wrongdoing fiduciaries, which have been in evidence since the early eighteenth century.²¹ Even the modern restitutionary defence of change of position probably only formalises the expression of instincts for allocative fairness that were previously given more isolated and invisible effect through technical devices, such as tracing rules.²² The spirit of compromise is hence not new, but modern apportionment rules strike a different set of compromises to those which have been struck in the past; and they purport to bring a new visibility, legitimacy, science and sense to the process that was formerly lacking.

A.Terminology – A Short Primer

In this book, the term ‘apportionment’ is used to refer to any legal mechanism for dividing responsibility for either losses or gains between plaintiffs and defendants in private law actions.²³ This is a very broad definition. In Australia, references to ‘the apportionment legislation’ are usually very specific allusions to the statutory rules enacting what is now known in the United Kingdom as the partial defence of ‘contributory negligence.’ In the United States and Canada, that, same defence is called ‘comparative’ negligence’, in order to distinguish it from the ‘absolute’ version still operating in a minority of jurisdictions.²⁴

Jurisdictional variations in terminology are highlighted in the following chapters, but it may nonetheless assist to provide a short primer of the main concepts of ‘sharing’ and ‘division’ used in the book, referencing their cross-jurisdictional equivalents...

Table of contents

• Cover
• Title Page
• Preface
• Acknowledgements
• Contents
• Table of Cases
• Table of Legislation
• List of Contributors
• PART I FRAMEWORKS, ETHICS AND POLITICS
• PART II ORIGINATING DOCTRINES
• PART III PLAINTIFF-DEFENDANT APPORTIONMENT
• PART IV APPORTIONMENT BETWEEN DEFENDANTS
• Index
• Copyright Page