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beyond the preferred two-party model of most accounts of tort (with the
exception of contributory negligence, which operates of course between
claimant and defendant(s)). That is part of the issue to be explored. Or it
may be because it deals primarily with liabilities rather than duties
(primary obligations), on which most accounts focus. Liabilities are
pecuniary. What can be captured in terms of money can be shared in the
important sense of being divided,3 shifted, distributed, and dispersed. To
what extent do notions of responsibility in tort law (which might be
associated primarily with liability responsibility) reflect this?
Sharing as division into shares
Where civil liability is concerned, there may be an apparently obvious
connection between sharing, and division.Some shared responsibility in
the law of tort does indeed take the form of a division and sharing of
losses and/ or liability. Intuitively this may seem appropriate. But how
generally acceptable is this model?
Part of the superficial appeal of sharing in the sense of division of
responsibility where civil liability is concerned stems from the reparative
goal of civil liabilities. This might be made more obvious by a contrast with
criminal liability (so far as I understand it), where the existence of other
responsible parties is unlikely to reduce the level of responsibility of any
one such party. Doubtless this reflects the different purpose of liabilities in
tort and crime, the former being designed to compensate or repair the
claimant in respect of harm caused by the defendants (or defendants)
wrong, the latter typically amounting to a sanction.
We can represent this graphically in terms of different meanings of
degrees of responsibility. While degrees of responsibility in criminal law
may be represented in terms of a ladder reflecting the level of
wrongdoing/ culpability, it looks as though tort liabilities in some
circumstances are contemplated as a pie in which parties take
responsibility for slices of one size or another. This is partly because the
overall pie represents a totality, even if an artificial or conventional one4
this is the amount required to compensate or make reparation to the
3 George Simmel, The Philosophy of Money (1913), had it as one of the core
properties of money that it is infinitely divisible. The influence of the money
form on principles of liability (civil and criminal) has been underexplored: see Pat
OMalley, The Currency of Justice (2009) and Campbell et al, The Currency of
Freedom (2011) Social and Legal Studies.
4 For example, the sum required may include an amount for non-pecuniary loss,
rendered in money terms.
2
5 In the Law Reform (Contributory Negligence) Act 1945, the court must record
the total damages, and then apportion between the parties on a percentage
basis. The first draft referred to the total liability to be shared, and the
draftsman at a very late stage wanted to replace the reference to damages (a
pecuniary sum), with a reference to damage (that which the sum seeks to
represent). Apportionment depends on the existence of the former, a pecuniary
sum. Outside contributory negligence, there remains some resistance to treating
personal injury as pecuniary in precisely the same way as other forms of
damage, though clearly pecuniary losses are part of the impact of pi. For
example, a personal injury insurance policy is not an indemnity, and subrogation
rights therefore do not operate for pi insurers.
6 The particular focus was on road traffic accidents.
7 Note also the debate about similar reform proposals between Fleming James
and Charles Gregory, the former objecting to contribution that it would be used
in opposition to his preferred goal of optimal loss distribution, in (1940-41) 54
Harv L Rev 1156.
3
The default position in the law of tort at common law is that parties
sharing responsibility may each be fully accountable. That, indeed,
appears to be the general conclusion to be drawn from principles of
causation, and remoteness, in the law, and this is the very reason why
contributory negligence before (and after) its reform raised such difficult
questions. Under the common law rule there were cases where the
defendant was held not to have caused the harm, so there was no liability;
and other cases where the claimant was held not to have caused the
harm, so there was full liability: the operating cause was one or the
other. Today, causation is typically approached through the idea of
remoteness, which asks only about the link between the defendants
breach, and the loss suffered. It is particularly inclusive. It does not require
the causal relationship in question to be compared with any other
potential cause, and does not attribute degrees of causation.The idea of
comparative negligence introduced ideas of relative responsibility
embracing both causal roles, and degrees of fault, in determining who
ought to take a share of the burden.Those ideas operate only between
parties who are at fault and therefore, in terms of causal responsibility as
it operates in the law, fully responsible.13 This is what links contributory
negligence and contribution: they operate between causally responsible
parties. The default rule is parallel responsibility. This could not operate
properly in relation to contributory negligence, where one of the parties to
be fully responsible is the claimant. It does operate however under joint
and several liability. Contribution is an adjunct to this, and designed not to
swallow the relational idea of the responsibility owed in respect of the
claimants harm.
Of the instances of shared responsibility examined so far, only
proportionate liabilitydisrupts the usual causative sense of both parties
being fully accountable for the loss.14 Contribution between tortfeasors on
the other hand does not overturn this but merely adds to it a capacity for
the causally responsible to share responsibility between
12 A full citation of all law reform bodies to consider proportionate liability would
be extensive. Among valuable academic sources see for example B McDonald,
Proportionate Liability in Australia: the Devil in the Detail (Syd Law School
Research Paper 06/25); McDonald and Carter, The Lottery of Contractual Risk
Allocation and Proportionate Liability (2010, 10/15); N Marcus, Phantom Parties
and Other Practical Problems with the Attempted Abolition of Joint and Several
Liability (2007-2008) 60 Ark L Rev 437.
13 Wright, above, explains that this is as much the case for contributorily
negligent claimants as tortfeasor defendants. They too are fully responsible for
the harm, to the extent that they have caused it.
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responsibility to the claimant. The unrecoverable share does not fall to the
claimant de facto but is allocated to him or her on the basis of
responsibility (with all the problems this entails). Vicarious liability does
not involve division, but parallel responsibility. In principle the relative
positions of the two responsible parties between themselves might
indicate a hierarchy of types of responsibility; but that is not necessarily
the most compelling way of reading the situation. We should move on
before returning to this.
This does not exhaust the kinds of shared responsibility which might be in
operation, or desirable. Dispersal is also a form of (wide) sharing. It is
clearly recognisable as a social goal. Is it relevant to tort?
Sharing or shifting: Insurance
On a practical level, the impact of shared responsibility is affected by the
fact that defendants are typically insured or otherwise worth suing, and
claimants in many instances (particularly, many instances of personal
injury) are not.22 So the impact of responsibility-sharing in the contributory
negligence sense is that the effects of torts are distributed only up to the
point where claimant responsibility kicks in. If sharing of responsibility is
capable of having a different, more socially oriented meaning which
nevertheless includes the impacts of torts (wrongs), then the shared
responsibility of contributory negligence actually sets limits to the sharing
of responsibility in the sense that the burdens of wrongs are
dispersed.23Here we encounter a further idea of responsibility-sharing.
This form of responsibility sharing is based on wide dispersal. There will be
some resistance, I anticipate, to seeing this in terms of responsibility. It is
of course typically associated with insurance.
The general perception of insurance both among tort scholars, and much
more broadly, has historically been that it is a means of distributing losses
throughout a pool. Because of the need for diversification, in fact losses
are distributed through insurance far beyond like risk pools this is not
21 I should perhaps explain that this is quite different from the issues of proof of
causation controversially determined in Barker v Corus to involve liability for
risks of harm where risks of harm alone could be established.
22 Even where a pi victim is insured, there has been reluctance to regard this as
an indemnity akin to other forms of insurance.
23 This is one of the ways in which maritime collisions provided a poor model for
reform of the law relating to personal injury. First party marine insurance was the
historic norm and insurance of liabilities created more difficulties.
8
parties each of whom might be said to be responsible for loss through the
operation of the law of tort does not necessarily lead to the dispersal of
responsibility. Furthermore, the division of liabilities can operate in order
to reduce the amount of loss that is dispersed. Sharing in one sense may
undermine sharing in another.
Contributory negligence
The reform of contributory negligence from total to proportionate rule has
been a significant influence in the extension of shared responsibility in the
sense of division referred to above. Study of this area holds significant
lessons (and, I agree, puzzles).My own initial interest in shared
responsibility stems from research into the process through which the
English (and Scottish) law of contributory negligence took its
proportionate form in 1945.26 The reforming statute expressly makes
relative responsibility of claimant and defendant(s) the basis for reducing
damages as the court thinks just and equitable. The legislation therefore
includes what might be a relatively rare statutory use of responsibility as
the basis for a legal rule. Sharing responsibility is associated with a
reduction in the damages which would otherwise be awarded.
One of the key issues which arises for any exploration of shared
responsibility in the context of civil liability is the relationship between
responsibility, and liability.27 Another is whether responsibility is
genuinely a core legal term or building block,28 rather than a short-hand
expression of potentially rather varied reasoning processes.29 In both
respects, it seems particularly pertinent that the first draft of the UKs
reforming statute mandated the division of liability between two or more
26 J Steele, Law Reform (Contributory Negligence) Act 1945: Collisions of a
Different Sort. The reference in the subtitle to collisions indicates the (almost
total) importance of road traffic accidents in prompting the reform and the rather
inappropriate reliance on the law relating to marine collisions in framing the
initial draft legislation. More metaphorically it also indicates the collision between
lawyers law and more political tort reform with the emergence of a general
scheme of national insurance and repeal of the Workmens Compensation Acts at
the end of the second world war.
27 See for example Cane, Responsibility in Law and Morality, chapter 1.
28 Cane, above, proposes that it is.
29 HLA Hart, Varieties of Responsibility.
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parties whose fault had contributed to damage, and was squarely based
on the law developed for maritime collisions both by the Admiralty courts
and internationally;30 but that it was transformed for the purposes of the
enacted version into a provision requiring the reduction of damages on
the basis of relative responsibility.31 The reform therefore made the
transition from liability-sharing (familiar in maritime collisions where the
issues were dealt with through consolidated cross claims and almost
inevitably both or all parties had suffered some damage), to relative
responsibility for the damage to one party only the likely liability of that
party to others did not enter into it.
In the course of researching the origin of the English legislation, it struck
me as particularly interesting both that the maritime rules were not
themselves applicable to cases of personal injury, though personal injury
was the primary concern behind the reforms; and that the main, or even
sole, rationale for the recommended reform was that the maritime rule
(liability sharing) operated more fairly than the common law rule (total
bar). There really was not much analysis of the nature of the new
provision, in terms of where it placed the burden of loss. Indeed the likely
impact on litigation and on the behaviour of defendants was swept aside,
when it was raised as an issue.
Among the observations emerging from the research which have
relevance to understanding the nature of shared responsibility in civil
liability, are the following:
1. The reform of contributory negligence, from total to partial, was not
an isolated piece of law reform. The same law reform body worked
throughout the 1930s to modernise legal doctrines, dealing with
dead ends reached by the common law. It recommended the first
contribution legislation relating to tortfeasors, and reform of the
rules relating to frustrated contracts (defining where losses should
30 Particularly through the Brussels Convention, which formed the basis (in the
UK) of the provisions of the Maritime Conventions Act 1911 used as a model by
the Law Revision Committee, and (virtually word for word) the first draft of the
reforming statute).
31 The process through which this came about is interesting but outside the
remit of this paper. It relates to the more metaphorical form of collision referred
to in n. 1, and particularly Lord Simons appearance before the Monckton
Committee on The Alternative Remedy (ie, Tort, in the context of national
insurance).
11
of motor insurance, will fall outside the terms of insurance policies. The
share of responsibility taken up by deliberate wrongdoing is uninsured and
therefore generally unavailable to compensate claimants. Insurers who
succeed in bringing about proportionate liability succeed in shifting
responsibility to uninsured defendants and therefore reduce the amount of
liability to be dealt with through insurance. Unmet losses fall to claimants.
Meanwhile the liability of their assureds is not capped at a level thought to
capture their contribution to the debacle (rather like the criminal liability
ladder). It purports to be a relevant proportion. A way of sharing out
responsibility and placing liabilities with those who, in a rough and ready
way, most deserve it, is being used to define the proportion of damages
for which a single defendant is liable. But in the absence of other available
defendants, it makes no sense to talk of a proportion at all. Sharing in the
sense of division (and slicing) depends on having someone to share with.
That person is not the claimant. This is not a proportionate share, because
it is not sharing at all.
These factors lead me to agree with those who argue that the relevant
focus for consideration in these cases is the primary obligation or duty,
not the capacity of money damages to be divided. So it becomes
particularly important that the duty of care is not simply defined as a duty
to be careful. It has size and shape, and it is owed to particular claimants.
What duty is owed by these professionals, to whom, and why? Duties are
nowadays recognised as restricted in ambit and require specific
justification, especially where they are positive duties to prevent harm.
They are imposed only where justified. Alterations to liability may be a
relatively soft target compared to reform of the basic principles of duty
and causation,41 but in this instance the alleged fairness of sharing (ie not
sharing) is entirely misleading. The extension of duties of care in
negligence creates the problem of additional parties, if indeed it is a
problem. Whether it is a problem or not is largely a question of what the
duties should be, rather than of how the liability should be shared.42
41 Notice the possibility that contributory negligence reform has had an
accidental impact on principles of causation.
42 This brings to mind Lord Mances dissenting judgment in Moore Stephens v
Stone & Rolls, in the different context of fraud attributed to a company, and the
question whether this barred an action against negligent auditors. In the view of
Lord Mance, the dangers of one-man companies are so great that there are
additional reasons for imposing duties on auditors to exercise care to guard
against fraud. A more general but related point is that auditor liability may be
dependent on assumptions of responsibility to particular people (as in the text
above).
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