Date: Sat, 17 Sep 2005 14:35:54 -0400

From: David Cheifetz

Subject: Apportionment, Causative Potency, Blameworthiness

Charles,

I'm not sure whether it is remarkable that the members of this list remember so much of what they once read or heard of, even briefly, or that it is unremarkable that there is so much that we've seen that we don't remember we once knew. (I think that sentence makes sense, but I'll let others parse its twists.)

In any event, something about the current discussion niggled both because of what we're discussing and something else. I had no idea what it was. I can't say that I specifically went looking for some indication why, but I found it regardless. The Canadian Bar Review had recently put itself completely on line. I decided to browse to see what was there that I might download for general reading. While there, I ran a search broad enough to pull up articles dealing with apportionment and causation. I found what might be what niggled. Or it might not.

If it is, it's Atiyah's 1965 article "Causation, Contributory Negligence and Volenti Non Fit Injuria" (1965) 43 Can B Rev 609. The article is a case comment on ICI Ltd v Shatwell [1964] 2 ALL ER 999 and its predecessor Stapley v Gypsum Mines [1953] AC 663, discussed under the rubric of four headings: Apportionment of Damages in Cases of Joint Action; Joint Action and Causation; Volenti Non Fit Injuria as a Defence to Negligence at Common Law, and Volenti Non Fit Injuria as a Defence to Breach of Statutory Duty. The first two sections contain comments on the relevance of non-causative factors to apportionment as between injured persons and wrongdoers as well as as between wrongdoers and the problem of apportionment between joint wrongdoers. That's the current discussion niggle. The conclusion contains the something else (for me) niggle - an early aside on the rebirth of the courts' claims to some sort of inherent common law power to decline to enforce contractual terms (or contracts) which aren't illegal on broad grounds of public policy.

On the issue of causation, apportionment and joint actors, the point he seemed to be making was that the principle behind joint wrongdoing seems to require the conclusion, in most causes, that the joint actors are equally at fault when analyzed on a purely causal basis. He at 625 "it seems that the courts are now irrevocably committed to the causal approach in cases of concerted action and that on similar facts they will almost certainly feel bound to decide that both parties' actions are, in part at least, causes of the consequential damage, except, perhaps, in circumstances (which will surely be rare) in which it can be clearly demonstrated that the assistance of one of the parties made no difference to the result. At 621: "But it is submitted that there is in fact ample authority for the view that two parties who commit a wrong while acting in concert are each wholly responsible for the consequences." And, at 622 "two persons acting in concert are each legally responsible for all the consequences of their acts in the same way as they would be if each of them was (as they were not in that case) the sole cause of the consequences." He later, at p. 623, mentions the proposition that, in cases of concerted action the wrongdoers are each authorising the other to do what he does.

The point on causation that I think Atiyah is making - which I suspect I am parroting either from this article or elsewhere - though, for the life of me, I don't think I've seen or thought of this article since sometime between 1975 and 1980 latest - is that, for liability to P, there's there is no need for a causal connection between the acts of T2 and the loss, so long as T1s acts are causative, since T1s acts are deemed to be T2s.

Atiyah also recognized that permitting the use of non-causative factors could skew the result away from what might be the case if the considerations are limited to the causative; however, he was more concerned with analytical, logical anomalies that arise where one has to decide whether, in cases where two or one or more of the wrongdoers are injured, the percentages that determine the amount of the wrongdoer's contributory fault (to determine their damages recovery from those at fault) have to be the same as the percentages that determine their contribution liability to one another. That is, if A is 20% at fault for his own injuries, does it follow that he is also 20% at fault for B's and that B's corresponding percentages are 80%; or that where there is B C D etc., that the total of B C and D's etc is 80%. Recent decisions [certainly Barisic v Devenport [1978] 2 NSWLR 111 (NSWCA); the trial decision in Renaissance v Frazer (2001), 197 DLR (4th) 335, [2001] OJ No. 866 (QL) (Ont SCJ) - that part of the judgment was affirmed in the Ont CA which varied only the apportionment as between R and F as tortfeasors towards M - see, (2004), 242 D.L.R. (4th) 229, 2004 CanLII 21044 (ON CA); even Fitzgerald v Lane which was applied in Renaissance) indicate that the contributory fault apportionments aren't determinative of the contribution apportionment, and have to be done separately, because there are different factors involved. That seems correct, to me.

As I read the article, Atiyah seems to think that, conceptually and logically, the A v B and C etc percentages have to be the same as the B v A and C percentages if the apportionments are entirely based on causal factors. He seems to be saying that this would be particularly so if the wrongdoers were joint actors and the causative conduct was primarily only one persons'. He is probably right if we're measuring by causative input only (assuming such measurement were possible). But I believe he is wrong if the measure is relative blameworthiness. In any event, since then, we have at least Barisic and Renaissance, and maybe Fitzgerald, to provide judicial statements that contributory fault apportionments and contribution apportionments don't have to be the same. This makes sense, to me, at least because the extent of X's departure, as the injured person, from the standard that defines the extent of obligation he has to himself to take reasonable care isn't necessarily the same as the extent of X's departure from the standard that defines the extent of his obligation, as wrongdoer, to somebody else: in this case his co-actor.

In any event, I remain uncertain that your intuition about what would happen in the trustee / dishonest assistant situation unless, and until, some judge decides how one gets around the principle that, so long as the two are joint actors, the trustee's conduct is deemed to be the assistant's, too. We could dance around the issue by saying the assistant, in a particular case, didn't have the requisite intent to be part of the common purpose, so was no more than negligent - that is, was helping his/her boss but not hoping to get anything out of it but keeping his/her job - so was merely a negligent concurrent tortfeasor, but I think that's would be disingenuous dodge except in the case where the assistant wasn't dishonest.

Paraphrasing what David Wingfield just wrote, it's impossible to solve this debate in the sense of the correct answer. I think there's a better answer, though, which is to concede that causative potency adds nothing to blameworthiness; and that blameworthiness isn't all based on causation but that an exhaustive formula for determining the content of blameworthiness isn't practicable. Paraphrasing from a more salacious area, we may not be able to define blameworthiness in advance, but we know it when we see it.

Atiyah's article is on the Can Bar Rev site behind the members only door, so I can not post a link; however, if the Can B Rev article isn't otherwise readily available to you, and you want it, I'll email a copy to you.

The unrelated niggle might have been the conclusion to the piece. At 637, in the context of discussing what the HL meant, in ICI, by contrary to public policy to allow the employer to contract out of duties owed to the employee (statutory vs common law), Atiyah wrote:

If, however, their lordships merely meant that an agreement to waive a statutory duty was contrary to public policy in the sense that it was unjust for an employer to extract such an agreement by virtue of his superior bargaining, power, the same reasoning may well apply where the duty is a common law duty. The significance of this possibility becoming a reality might be incalculable for it would be a completely novel exercise of the power, thought by many to be dead,[fn 89] of striking down a provision in an agreement on grounds of public policy even though the case does not fall into any of the existing well-recognised heads of public policy . If a provision in an agreement can be declared contrary to public policy and therefore void on the ground that the parties are not of equal bargaining power, have we not here a weapon which many have been searching for in order to combat the growing use of exemption clauses and the like in standard form contracts? Is it possible that ICI Ltd. v. Shatwell may one day be cited as a leading authority in the law of contract as well as tort.

[The case referred to at fn 89 is Fender v. St. John-Mildmay, [1937] A.C. 1, at p.40 per Lord Wright.]

The weapon is, of course, the undefined content and scope of the doctrine of unconscionability. The comment is historically interesting to me as I'm struggling with a paper attempting to find some measure of coherence in the bases upon which Canadian courts (especially Ontario's) are declining to enforce exclusions in insurance policies - beyond just the "insurer you can afford to pay, therefore you will pay".

Best regards,

David

----- Original Message -----
From: Charles Mitchell
To: DAVID CHEIFETZ
Sent: Friday, September 16, 2005 10:08 AM
Subject: ODG: Re: Apportionment, Causative Potency, Blameworthiness

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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