Date: Thu, 4 May 2006 09:52:15 +0200

From: Israel Gilad

Subject: Fairchild II

Robert Stevens wrote:

Employer held liable but only for the chance of avoiding the harm. It seems right to me, but I still cannot understand why it makes a difference that there is a 'single agent' (cf Wilsher).

A single agent requirement is just a way, although arbitrary, to limit the scope of proportional liability which threatens (or promises…) to transform tort liability from liability based on causation (all or nothing) to partial liability based on risk. This is well exemplified by a 2005 decision of the Israeli Supreme Court (Malul). In this single employer case, the probability that the employee's cancer was caused by exposure to asbestos at the workplace was only 20% (the other 80% were attributed to external non-tortious causes.) Nevertheless, the Court held the employer liable for 20% of the employee's loss on grounds of proportional liability.

Following this decision, lower courts soon held defendants proportionally liable for increasing the risk of loss (e.g. an operator of an alarm system is liable for 50% of the value of a stolen car because its failure to activate the system increased the risk by 50%). The new trend soon spread to contractual liability (breaching party liable for 40% of the economic loss as the breach increased the risk of loss by 40%) and statutory liabilities. The flood only begins ….

Moreover, if liability is proportional, plaintiffs who establish more that 50% probability but less than 100% should be entitled only to proportional compensation in accordance with the established probability – 90%, 70% etc. Proportional liability works in both directions – for plaintiffs and against them. However, when the Supreme Court was asked to do just that (2005 Cohen case) it refused. The emerging confusion led to a decision to reconsider the whole matter once again by an enlarged panel of the Supreme Court that would have to cope with the challenge of laying down the boundaries of proportional liability (single agent one of them?).

<<<< Previous Message  ~  Index  ~  Next Message >>>>>