Date: Fri, 16 Sep 2005 12:17:21 -0400 (EDT)

From: David Cheifetz

Subject: Apportionment, Causative Potency, Blameworthiness

Charles,

I don't like to define problems out of existence which is, essentially, what I'm doing by saying that the trustee and assistant, as joint wrongdoers, are deemed to be equally at fault - equally to blame, equally responsible - as a matter of law. Therefore, it doesn't matter who was Svengali and who Trilby.

I appreciate your point about what our intuition should tell us, the equal apportionment result was the traditional approach for joint obligees outside of the tort contribution sphere. Is it not still? Why shouldn't it be the same for joint tortfeasors? If B permits A to act improperly on B's behalf, why should it lie in B's mouth to complain that the law presumptively deems A's act to be B's and A's fault to also be B's, even for questions of apportionment just between the two of them. I've said presumptively because I'm not certain that there wouldn't be valid exceptions. I haven't thought it through.

Anyway, I'll read the cases you've mentioned over the weekend. Maybe I'll then have something useful to add to this problem.

Best,

David

Charles Mitchell wrote:

Dear David

Of course I agree that causation and fault are separate concepts. I also agree that in practice it doesn't often matter whether or not 'causative potency' has any meaning as a stand-alone reason for making unequal apportionments between wrongdoers because although the courts frequently invoke it as a relevant factor in their calculations they almost invariably say in the same breath that they are also taking into account the parties' 'blameworthiness'. Once that's tipped into the mixture any qualms they may have on account of the issues we've been discussing can easily be ignored. Driving carelessly at 60 mph towards a pedestrian crossing is a more blameworthy thing to do than driving carelessly towards the crossing at 20 mph because the chance of harmful consequences is greater and so too is the probable seriousness of these consequences - so who cares about this tricky causation stuff? I guess your main point is that considerations of fault creep in even on the rare occasions when the courts say that they're only looking at causation, and I can't really argue with that either: BICC Ltd v Cumbrian Industrials Ltd [2001] EWCA Civ 1621 seems like a good example. But still, one reason why I chose my dishonest trustee/dishonest assistant example is that here both D1 and D2 are as bad as bad can be: deliberately doing things which they know will harm others in the conscious knowledge that the world would frown on their behaviour. If we were apportioning liability between them solely on the basis of fault we would apportion equally. Yet my intuition tells me that an unequal apportionment would be appropriate, even if the trustee has now lost all the money so that no question of retained gains arises to tip the balance against him.

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