Date: Sun, 18 Sep 2005 14:16:18 -0400

From: David Cheifetz

Subject: Apportionment, Causative Potency, Blameworthiness

I agree that apportionment of fault (who is more to blame) is ultimately a moral question. However, telling most judges that it's a metaphysical debate isn't something I'd recommend.

I'll quibble with the last paragraph, but will avoid rehashing the Fairchild debate.

It's not a matter of the impossibility of proving which of the two acts really did cause the damage translating into a finding of causation and liability. That would amount to assuming the candidates to be factual causes when one knows that it's equally the case that the assumption might be wrong for one or both of the candidate causes.

Both (or all of the) acts caused all of the harm. At least for Canada and Australia (as I understand Australian law) - unless and until a Fairchild-like principle is adopted - the assumption underlying the finding of liability is that the injured person is able to establish factual causation on scientific principles and satisfy the scope of liability (proximate cause) requirements. That's the essential premise for apportionment where we're doing so for contribution or contributory fault purposes. Otherwise, as strained as the claim might be, we claim to be able to determine which act caused what damage. That's the Holtby and Allen cases I referred to in my earlier message to Charles Mitchell. In that case, we don't have concurrent wrongdoers causing the same damage; rather, we have several wrongdoers causing different damage. Or, if we have concurrent tortfeasors causing the same damage by actionable conduct but we don't want to hold all of them liable for all of the recoverable damages (the full value of the injury less the plaintiff's portion where there is contributory fault), then we have to move into a new regime of probabilistic (i.e., proportionate, or several as its commonly understood) liability. Under a proportionate liability regime, we don't need contribution. Contributory fault stays, of course, because one has to calculate the injured person's share/percentage in order to calculate the share/percentage of the wrongdoer(s).

Regards,

David

----- Original Message -----
From: "David Wingfield"
Sent: Sunday, September 18, 2005 12:31 PM
Subject: Re: Apportionment, Causative Potency, Blameworthiness

Thanks for your message. Actually I was, unusually for me, not arguing for something. Rather I was pointing out that the discussion of causation as between two tortfeasors begins in an attempt to apportion liability based on physical cause and ends up in a debate over moral blameworthiness. It ends in this way because tort law is, for the most part, an admixture of the physical and the metaphysical which belong to different categories of thought and standards of proof.

For this reason, there are two question we need to ask: One is whether each tortfeasor's physical act or omission was capable of causing the damage of which the victim complains (this also includes the victim's own acts or failure to act). If so each tortfeasor is 100 per cent liable. The second question is, as between the tortfeasors, who is more worthy of blame. The answer to this question determines the liability each tortfeasor owes to the other.

I happen to think that this is how the courts actually reach the conclusions they do in the cases before them. I also think that there is no other way of going about it because of the impossibility of proving which of two acts really did cause the harm.

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