Date: Thu, 2 Feb 2006 14:35:19

From: Robert Stevens

Subject: Standard of care in contribution proceedings

Is your proposition that "fault" for apportionment should be more subjectively-based than "fault" in the context of liability premised on the notion that apportionment is conducted under a "just & equitable" regime rather than a "comparison of degrees of fault" regime? I don't see that it matters because, in either case, one first has to determine what one means by fault.

I think the degree of fault that a claimant needs to establish in order to bring a successful claim varies. Where two defendants are jointly liable for the commission of a tort where liability is strict, such as conversion, in determining the appropriate contribution as between the two of them the standard applicable in order to establish liability is obviously of no relevance. I think the same is true where the defendants are both liable for torts committed through negligence.

Jones v Manchester City Corp is a nice illustration. As between claimant and defendant doctor, the doctor's lack of experience was irrelevant in relation to the standard of care expected. As between doctor and hospital (or doctor and anaesthetist) the doctor's inexperience was highly relevant in determining the parties relative fault for purposes of contribution.

This doesn't, of course, mean that the test is wholly subjective. If in a car accident which is the result of the carelessness of two defendant drivers, one driver cannot seek to argue that he is particularly clumsy, or reckless and so less at fault when compared with his fellow tortfeasor. Some of our characteristics (eg our clumsiness, stupidity, recklessness) we have to take responsibility for. However, the range of characteristics which are relevant in relation to contribution claims (and the defence of contributory negligence) are rather different from those relevant at the liability stage. This is because what we mean by 'fault' is rather different.

Robert Stevens

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