At
14:35 17/09/2005 -0400, you wrote:
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".
