Date: Thu, 2 Feb 2006 22:31:51 -0500

From: David Cheifetz

Subject: Standard of care in contribution proceedings

I'm still puzzled as to where you're going. My apologies if I'm being obtuse.

I agree with you that Doctor A's inexperience may be relevant to the ultimate apportionment but I don't see what point it illustrates. A's inexperience could well be relevant in the question of whether A was at fault at all - the liability question. Assuming A is at fault, again it could be relevant to the question of the extent to which A departed from his standard. But I don't see where you're going with that.

In order to apportion, we need to put quantitative and qualitative adjectives on the fault of the persons at fault - small, large, great, serious, minor etc - so that we can then compare the values in those adjectives. Call this the process of determining the magnitude of the fault . The magnitude tells us how significant we think the breach of the standard of conduct was for each person at fault. Doctor A's inexperience was relevant to determining his magnitude to the extent it is relevant to determining the extent of his departure. But it's not relevant to the extent of Doctor B's departure unless Doctor B is responsible for A's conduct in addition to his own. So, while we use may use A's inexperience to determine the magnitude of his fault, it's spent once it's used in that fashion.

If you're saying that we could look at what inexperience means in the liability situation differently from what it means in the apportionment situation, you're right, we could. There might be some other facts that make that approach relevant. For example, where B was responsible for A's training, but then it's something extrinsic to inexperience that has made us treat inexperience differently. So, that B is responsible for A's training might not give A a defence to P's claim (the liability question) but might (where the apportionment regime rules permit) allow A to get full indemnity from B. Absent some independent basis for indemnity, you couldn't do that under a regime which apportions based on comparative degrees of fault. Though I suppose you could under the just & equitable ... extent of responsibility regime.

As to whether we use "fault" differently in the apportionment context than the liability (for damages) context - I'm not certain that's so - and I'm not certain what you mean by suggesting a different meaning. "Fault" is the departure from the applicable standard. That the content of what makes up fault may vary from case to case doesn't mean that what we mean by fault is different.

Assume a case where X, Y and Z are all at fault for the loss and the injured persons are X and Y. It's quite possible that X's and Y's percentages of fault in relation to their own injuries (their contributory fault) will be different than their percentages of fault in relation to the other's injuries. [See Barisic v Devenport and Renaissance v Frazer mentioned in my earlier message.] But that doesn't mean we use fault differently. The difference in the values will be because the issues / facts which are relevant in each case may be different.

When, under just & equitable regimes, apportionment is varied from what it would based on fault because one of the "wrongdoers" is held liable strictly, or because of impecuniosity of one of the wrongdoers, that isn't because we understand fault differently in those contexts. That's because the regime permits apportionment adjustments on bases other than fault.

David

----- Original Message -----
From: "Robert Stevens"
To: "David Cheifetz"
Sent: Thursday, February 02, 2006 9:35 AM
Subject: Re: ODG: 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.

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