Date: Wed, 1 Feb 2006 21:31:53 -0500

From: David Cheifetz

Subject: Two Questions - Question 2

Robert,

I'll provide what I hope is a responsive (Canadian) answer for question 2. I say I hope because I may have missed the point of your question.

Cases, except for the 3 I mention just by cite, will have to wait for the week-end. I'm not certain there are cases that respond explicitly to the question the way you've posed it, though that may be because I've misunderstood; though there are probably some which indirectly provide an answer, including (I think) the 3 I mention.

Part of what I'll write is basic stuff which you'll know. Mea culpa. I'm setting it out only because it helps the flow of the answer.

Your first sentence is "In a claim for contribution between two careless tortfeasors, does the court apply the same test in determining relative 'fault' as it would in deciding whether the tort has been committed?" I have trouble with the question as you've phrased it because the question at the apportionment stage is an entirely different question from that asked at the prior stage of deciding if a tort had been committed, unless all you're asking is about process; that is, whether the ultimate decision, in each case, is made on an objective or subjective basis. If that's the case, I'd answer that the process in each case is objective.

At that was there a tort stage, the question (in most cases) is simply: "was there any fault (negligence) on the part of this D". We decide that question based on the reasonable person standard, so that's objective. At the apportionment stage, though, we're asking, as between two or more persons at fault, how the severity of those faults compares. That's ultimately objective, in my view. The jargon in Canada is "comparative blameworthiness" which I think gives away what the process is. We do that first looking at each actor's misconduct and deciding to what extent that actor departed from his standard of care. My view of the cases is that they say we look at that question objectively. We then compare the extents of departure. I see that as objective, too.

Stating the obvious - unless the tort is one which requires some degree of negligence greater than mere negligence - for example, gross negligence or another epithet of that sort - all the injured person has to establish is that the tortfeasor was negligent. Then, so long as P is suing in a "joint liability" regime, the amount of negligence doesn't matter as between P and any D unless there's an issue of P's contributory fault, or for some other reason P's claim is limited as against of D to that D's proportional (several) share (percentage).

As I mentioned, in the Canadian context, we're supposed to determine degrees of fault by comparing the extent to which the person at fault departed from the standard applicable to him, her or it. So, in the example you've given, it might be relevant in some cases that D1 was inexperienced and D2 was experienced and therefore D2's degree of fault should be greater; however, in other cases, it wouldn't. For example, D1 might have been impaired.

We're supposed to use the same sort of approach when comparing the fault of the P who is also at fault and any D where there is some issue that requires a determination of P's fault, for example contributory fault.

Finally, 3 cases that provide some guidance, I think, are Fitzgerald v Lane [1989] 1 AC 328, [1988] 2 All ER 961 (HL), Barisic v Devenport [1978] 2 NSWLR 111 (CA) and Renaissance Leisure Group v Frazer (2001), 197 DLR (4th) 336 (Ont SCJ). Renaissance was varied by the Ontario CA at 2004 CanLII 21004 but there's nothing in the CA's decision relevant to your question. The trial decision in Renaissance is available online only through QL or Westlaw/Carswell but I can send it to you if you you've trouble getting it. AustLII isn't yet back to 1978 for the NSW reports last I looked. Fitzgerald is from your part of the Empire.

One point all three cases make is that, where it's necessary to compare fault as between P and D for contributory fault purposes, the decisions there won't necessarily determine the apportionment between the tortfeasors for contribution.

Best,

David Cheifetz

----- Original Message -----
From: "Robert Stevens"
Sent: Wednesday, February 01, 2006 11:18 AM
Subject: ODG: Two Questions

I have two questions which I cannot answer for myself arising from what I am working on. Any help, offlist if preferred, gratefully accepted.

...

Problem Two

In a claim for contribution between two careless tortfeasors, does the court apply the same test in determining relative 'fault' as it would in deciding whether the tort has been committed? So, if two drivers D1 and D2 both carelessly cause a car accident which results in injuries to P, could D1 argue that she was a learner driver whilst D2 was a professional chauffeur so that the contribution as between the two of them should not be equal? Or, as between D1 and D2 do we apply the objective standard which we would apply in the claim by P against either one of them? Cases?

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