At
08:41 16/09/2005 -0400, you wrote:
Charles
'Ha!'
David is happily exclaiming. 'No rational basis for division
of causation, eh? My point, I think.'
Not
to be too picky but, though I am Canadian, the "eh"
interjection isn't one of my failings. I will, however, admit
to having a paternal grandmother born in Wales who lived first
in Merthyr Tydfil then later in Swansea. (I think that was the
order; not the reverse.)
More
to the point.
I
think you're overstating my view to make a valid point that there's
a significant amount of arbitrariness - and fuzziness in concept
- in the apportionment process. Under my view of how to make some
practicable sense out of the process - bearing in mind that I
usually have to explain my desired result to judges who usually
don't have your background - your examples wouldn't produce equal
apportionment of financial responsibility as between the wrongdoers;
that is, an equal attribution of fault. They'd produce unequal
apportionments. That's (at least) because I don't equate the concepts
of causation and fault.
I
wonder if what we're having is a terminology dispute rather than
a concept dispute in our search to describe and define the values?
factors? that allow us to compare actionable misconduct and conclude
that one wrongdoer should be assigned more of the financial responsibility
for the compensable damages than another. That is, to what extent
are the factors that, for you, define "causative potency"
the factors that I would describe as "blameworthiness"?
Is my "blameworthiness" your "relative causative
potency"?
The
point I'm trying to make is that using causation in a "how
much damage did the misconduct cause" sense is conceptually
inconsistent with the first assumption that in contribution all
of the misconduct is a legal cause all of the damage. I appreciate
that you a struggling for a way to express, in language, a quantifiable
concept expressing the proposition that some conduct played a
greater part in the end result than other conduct. So am I. You
want to use a concept that includes some notion of causation and
uses a variation of "cause" in its phrasing. I think
we need to stay away from phrases that use some version of "cause",
for reasons such as the analyses (if not necessarily the results)
in Rahman v Arearose as well as Holtby v. Brigham
& Cowan (Hull) Ltd., [2000] EWCA Civ 111 and Allen
v. British Rail Engineering Ltd., [2001] EWCA Civ 242. [I'm
aware that Stapleton thinks the evidence supported the divisions,
conclusions, and results. If she's right on the evidence as presented,
she's right. Nonetheless, there's a lot of quacking in the background
of the judicial reasoning.]
I'll
use your last paragraph as an example.
If
David is right that causative potency is a meaningless concept,
then we can only say that D1 and D2 are equally the causes of
the beneficiaries' loss and that D1's actions have had no greater
impact on the beneficiaries' position than D2's actions. [No -
I'd say that D1's actions are more blameworthy, in your description,
in this case because D1 was the prime mover and D2 merely an assistant.]
D1 initiated the process and D2 was a follower But can we not
meaningfully say that D1's actions in initiating a scheme to steal
from the beneficiaries and salt the money away [me - is more blameworthy
conduct in relation to the ] [you - are a more potent cause of
their] loss than D2's actions in moving money from one bank account
to another on D1's directions? Cf Schott Kem Ltd v Bentley
[1991] 1 QB 61 at 76; Arab Monetary Fund v Hashim The
Times 11 Oct 1994. Take D2 out of the picture and the loss would
still be incurred; take D1 away and it wouldn't be. David would
say that this makes no difference but I doubt this. [No, I wouldn't
say that it makes no difference, for reasons explained. D1 is
more blameworthy. So, on the facts only as you've described, as
between D1 and D2, D2's share of the financial responsibility
for P's damages would be less. There would be examples where the
"helper's" input was the more significant conduct.]
In
passing: you referred to examples where D2's own conduct was was
not sufficient of itself, and would not satisfy (traditional)
but-for analysis, but nonetheless D2 was held liable because D2
helped. I haven't read the cases you refer to but it seems to
me that, on traditional analysis, D2 was a joint wrongdoer (tortfeasor)
with D1. That means that D1's conduct was deemed to be D2's, also.
And that means that D2 was held liable on the basis of causative
conduct.
Returning
to our discussion of terminology, to say that D1 is more to blame
than D2 doesn't translate meaningfully into a statement that D1's
conduct was more potent than D2's in any meaning of "potent"
that I'm comfortable with, if potent is a synonym for cause in
some arithmetical sense. In R. Fumerton and K. Kress, Causation
And The Law: Preemption, Lawful Sufficiency And Causal Sufficiency
(2001), 64 Law and Contemporary Problems 83 at 105, the authors
end their analyses of what they see as inadequacies in the current
theories of causal connection in law with this admonition.
"An
increasing number of philosophers seem to be willing to take the
concept of causal connection as a primitive (unanalyzable) concept
- one of the conceptual atoms out of which we build more complex
concepts or ideas. But one does not need to be overly cynical
to wonder whether this embrace is not born out of sheer frustration
with the inability to say something interesting yet true about
what constitutes the essence of causation. In any event, if the
law is waiting for philosophers to offer something better than
a prephilosophical grasp of what is involved in one thing causing
another, the law had better be very patient indeed."
It
may well be that we have a similar problem of an unanalyzable
concept, here.
I
appreciate that your response may be that I'm dodging the use
of "cause" when blameworthiness somehow incorporates
a causation concept. At the moment, my only response to that is
to agree that it does; but only at the threshold of determining,
as between the wrongdoer and the injured person, whether that
wrongdoer is liable at all for the damage sustained by the injured
person. If the wrongdoer is, then the wrongdoer is blameworthy.
But the relative amount of blameworthiness as between T1 and T2
is not relevant to the injured person's right to succeed against
T1 or T2 because any amount of actionable causation is sufficient
causation. That is, it doesn't matter to P that somebody other
than T1 is at fault (so long as T1 has enough money to pay). So,
yes, in my construct in the ultimate apportionment of financial
responsibility between the multiple wrongdoers, this could bring
into play non-causative factors when we determine how much contribution
one wrongdoers has to pay another. But, then, Svengali should
pay more than Trilby, eh?
