Date: Fri, 29 Feb 2008 16:01

From: David Cheifetz

Subject: Corr v IBC [2008] UKHL 13

Corr shows a problem inherent in apportionment formula of the "just and equitable having regard to the claimant’s share in the responsibility for the damage" form where the relevant factors may have nothing to do with relative blameworthiness, indeed may have no relationship to causal criteria.

What would the House have done on the apportionment issues had it also had to deal with an action by a third person injured as the result of Mr. Corr's jump if that person had sued both Corr and the employer? Lord Neuberger wrote, at para. 51, in relation to the contributory fault apportionment issue: "It may also be relevant if other factors were also operating on the claimant, independently of the accident and the consequent depression – for example, impending exposure of lack of probity, financial ruin or matrimonial breakdown". Does that mean, for argument's sake, that if the Corrs were extremely wealthy, the apportionment would be closer to comparative blameworthiness than if the family needed money? If the Corr were not insured for liability to the third person and the family did not have assets, so that the third person's damages award would come out of the Corrs' damages, that would affect the contributory fault apportionment and the contribution apportionment? Similarly, if Corr was insured for liability, that too would affect in some fashion?

The analytical problem that would be avoided under regimes where the apportionment is in the degree of fault determined by the comparative blameworthiness, which is supposedly take into account only the causative conduct relevant to fault.

An interesting angle on the novus actus finding in the British Columbia action the House of Lords referred to is that, in BC, contributory fault on the part of the injured person means the tortfeasor is liable proportionally, only, not solidarily (jointly) with another tortfeasor should there be more than one. As it happened, there was only one tortfeasor in that action so the judges wouldn't have had the issue of solidary liability, if the judges wanted to find the deceased's conduct didn't break the chain and allow some recovery. Since there was only one tortfeasor, had the action succeeded with deceased's conduct only contributory fault, the family recovery would have been reduced by the full percentage. The defendant would have paid only its "share". So, the BCCA was able to duck the quandary all aspects of the quandary of how to apportion in regime where apportionment is based on relative blameworthiness, only, and that compares (so we claim) only the extent to which each person's misconduct departed from the applicable standard of conduct for that person. So, I suppose the answer is that one looks at the act which is the deceased's fault - the jump, the manner of driving - and not the motive for the act. That means the fact the motive was suicide is irrelevant.

David Cheifetz

----- Original Message ----
From: Mårten Schultz
Sent: Thursday, February 28, 2008 9:38:08 AM
Subject: VB: OGD : Corr v IBC [2008] UKHL 13

This was very interesting!

From a Swedish perspective the issue of liability for suicide as a possible consequence of a previous personal injury has been widely discussed in relation to the general requirement of adequate causation. As often is the case with Swedish remoteness of damages issues there has been a tendency to look for standardized approaches. Previously it was held that suicide could never be adequate, thus compensation for suicide as a result of a personal injury was rejected tout court. This changed already in 1966 when the Swedish Supreme Court awarded compensation also for the consequential suicide.

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