Date: Tue, 11 Oct 2005 20:10:42 +0100

From: Andrew Tettenborn

Subject: Two employers

Interesting point.

Incidentally, on common law analogues to the statutory rights, didn't the Sup Ct of Canada do something like this in Bow Valley (1998) 153 DLR 4th 385?

If my memory serves me right, a contributory negligence issue arose in the federal maritime (but not ship collision) jurisdiction. Although the provinces all had the usual apportionment and contribution legislation, the federal govt didn't, since it had assumed there was no point (civil rights and obligations being reserved to the provinces). The defendant thereupon brightly said:

"Fine: the common law applies, and CN bars the plaintiff entirely. So I'm off the hook completely."

Certainly not, said the SCC. The old CN rule is a relic of the past: it's time there was a common law apportionment doctrine, and we're going to say there is. I have a feeling they also said, obiter, that they would also be prepared to admit common law contribution between wrongdoers.

Andrew

>===== Original Message From David Cheifetz =====

Andrew,

If followed, the Viasystems decision will create a pretty problem, in the 1 employee 2 employers situation, for any jurisdiction in which the application of apportionment legislation requires that there be 2 or more persons at fault for the damage (or damages), provided the judges remember that vicarious liability doesn't impute the employee's fault to the employer. I am aware of Canadian cases that say the vicariously liable person(s) cannot be the additional person(s) required to trigger the legislation.

Assuming those jurisdictions follow the Viasystems analysis and opt for the possibility of dual vicarious liability, the judges will then have to create an analogous common law right of contribution. I'm sure the judges will do as good a job of clarifying the law, in this new area, as they have for statutory contribution rights.

The situation will create yet another conundrum for jurisdictions that limit their apportionment legislation to tort. We can anticipate a situation where, for whatever reason, the injured person has sued just one of the two employers. One obvious explanation is that only one of the two employers has insurance. In the subsequent contribution claim, the contribution defendant might argue that the apportionment legislation is exhaustive as to when contribution is available in respect of tort claims. The astute judge might respond that the legislation is exhaustive only in respect of the situations where there are 2 or more tortfeasors.

For jurisdictions where these types of statutory contribution lacunae exist, one route around the problem, where the facts permit, would be to conclude that both employers are liable to the injured person for breach of the same contract or separate contracts, and adopt the appropriate analysis leading to contribution rights between the employers. Or imply an obligation to contribute into the arrangement between the employers, assuming that isn't precluded by the terms of their arrangement.

A UE based rationale shouldn't be all that difficult to find given that employer 2 benefits from the fact that employer 1 has paid some or all of the damages.

Andrew Tettenborn
Bracton Professor of Law, University of Exeter, England

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