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DRIFTING TOWARDS PROPORTIONATE LIABILITY: ETHICS AND PRAGMATICS

  • Kit Barker and Jenny Steele
Abstract

This article investigates an apparent, convergent shift in common law jurisdictions away from the traditional principle of joint and several liability towards proportionate liability in cases involving multiple wrongdoers, and argues that this is best seen as an unprincipled drift. The shift is often presented by defendants and legislators as a logical extension of the ethics of comparative (contributory) negligence doctrine. Here we deny any ethical connection between the two doctrines. We also suggest that there is no good, generalisable ethical or pragmatic argument in favour of proportionate liability in its own right and caution jurisdictions currently considering reform of the joint and several liability rule against leaping to any such assumption.

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Corresponding author
*Address for correspondence:TC Beirne School of Law, University of Queensland, Brisbane, Queensland 4072, Australia. Email: k.barker@law.uq.edu.au.
**Address for correspondence:York Law School, University of York, Heslington, York, YO10 5DD, UK. Email: jenny.steele@york.ac.uk.
References
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1 R. Wright, “Allocating Liability among Multiple Responsible Causes: A Principled Defense of Joint and Several Liability for Actual Harm and Risk Exposure” (1987–8) 21 U.C. Davis L.Rev. 1141.

2 Assuming flexible joinder rules.

3 Some “hybrid” systems split uncollectable losses between defendants and plaintiff in proportion to their relative responsibility for the injury. See Part II.

4 See e.g. Wright, “Allocating Liability”; W. McNichols, “Judicial Elimination of Joint and Several Liability because of Comparative Negligence – A Puzzling Choice” (1979) 32 Okla.L.Rev. 1; Burrows, A., “Should One Reform Joint and Several Liability” in Mullany, N.J. and Linden, A.M. (eds.), Torts Tomorrow: A Tribute to John Fleming (North Ryde 1998), 102.

5 See e.g. J. Swanton and B. McDonald, “Reforms to the Law of Joint and Several Liability: Introduction of Proportionate Liability” (1997) 5 T.L.J. 1; M. Richardson, Economics of Joint and Several Liability Versus Proportionate Liability (Victorian Attorney-General's Law Reform Advisory Council, Expert Report 3, 1998), 20 and fn. 39.

6 For consistency, we refer below to “comparative negligence” across all jurisdictions, including those where the term “contributory” negligence is preferred.

7 Wright, “Allocating Liability”, p. 1165.

8 ALI, 2000 (“Restatement”).

9 Ibid., at B18, B19.

10 Each type of pure system now commands support in only eight states respectively. Pure joint and several liability is still found in Alabama, Delaware, Maine, Maryland, Massachusetts, North Carolina, Rhode Island, and Virginia; and pure proportionate liability in Arkansas, Georgia, Kansas, Kentucky, North Dakota, Oklahoma, Utah, and Wyoming.

11 Restatement, C18, C19, C21. This solution was endorsed in the Uniform Comparative Fault Act (1979) and has many advocates: Gregory, C., Legislative Loss Distribution in Negligence Actions (Chicago 1936), 7779; Williams, G., Joint Torts and Contributory Negligence (London 1951), 522–23; J. Fleming, “Foreword: Comparative Negligence at Last-by Judicial Choice” (1976) 64 Cal.L.Rev. 239; J. Wade, “Should Joint and Several Liability of Multiple Tortfeasors Be Abolished?” (1986) 10 Am.J.Trial Advoc. 193. For those supporting joint and several liability, this is the most palatable compromise: Wright, “Allocating Liability”, p. 1191; R. Wright, “The Logic and Fairness of Joint and Several Liability” (1992) 23 Memphis State L.Rev. 45 (accepting this position as “fair”); Burrows, “Should One Reform”, pp. 102, 113–14 (still rejecting this as unworkably complex and potentially contrary to plaintiffs' interests). The Uniform Act of 1979 was replaced in 2003 by the Uniform Apportionment of Tort Responsibility Act (“UATRA”), which also offers a hybrid system, but one that takes proportionate liability, not joint and several liability, as its starting point.

12 Ibid., at D18, D19.

13 Ibid., at E18, E19.

14 Ibid., at §17. It nonetheless seems attracted to hybrid solutions on the basis that “pure” systems of joint and several (or proportionate) liability “systematically disadvantage” either plaintiffs or defendants: comment (a) to §10. The same view is implicit in UATRA.

15 T. Weir, “All or Nothing” (2004) 78 Tul.L.Rev. 511, 524 at fn. 63.

16 Building Act 1993 (VIC), s. 131; Development Act 1993 (SA), s. 72; Building Act 1993 (NT), ss. 154–158; Environmental Planning and Assessment Amendment Act 1997 (NSW) (amending the Environmental Planning and Assessment Amendment Act 1979 (NSW), Part 4C); Building Act 2000 (TAS), s. 252; Building Act 2004 (ACT), s. 141. In TAS, SA, and the ACT, these provisions now co-exist alongside the more general proportionate liability provisions subsequently introduced. In the other jurisdictions, they have been repealed. Calls for reform of joint and several liability started earlier, in the 1980s.

17 Commonwealth of Australia, Inquiry into the Law of Joint and Several Liability: Report of Stage 2 (1995) (“The Davis Report”).

18 Richardson, Economics.

19 New South Wales Law Reform Commission, Contribution between Persons Liable for the Same Damage (NSWLRC R89, 1999) (affirming the view previously taken in the Commission's interim report: Contribution among Wrongdoers: Interim Report on Solidary Liability (NSWLRC 65, 1990)).

20 See generally Hon. Owen, Justice, The Failure of HIH Insurance: Vol 1A Corporate Collapse and Its Lessons (Sydney 2003).

21 See generally Barker, K., Cane, P., Lunney, M., and Trindade, F., The Law of Torts in Australia, 5th ed. (Melbourne 2012), 799804. State and territory provisions differ and are supplemented by federal provisions enacting proportionate liability regimes in cases of misleading or deceptive trade practice under the Corporations Act 2001 (Cth), Australian Securities and Investments Commission Act 2001 (Cth), and Trade Practices Act 1974 (Cth) (now the Competition and Consumer Act 2010, Part 4 – the “Australian Consumer Law”).

22 T. Horan, Proportionate Liability: Towards National Consistency (Report for National Justice C.E.O.s, 2007); Davis, J.L.R., Proportionate Liability: Proposals to Achieve National Uniformity (Canberra 2009). Model Provisions drafted by the Parliamentary Counsel's Committee for the Commonwealth Attorneys-General Standing Council on Law and Justice (“Model Provisions”) were released in 2011 and the Council's most recent Decision Regulation Impact Statement (“AGSCLJ Impact Statement”) in October, 2013. Progress has stalled.

23 Ipp, D.A., Cane, P., Sheldon, D., and Macintosh, I., Final Report of the Review of the Law of Negligence (Canberra 2002), paras. 12.15–12.18. The concerns were expressed in the context of a review of cases of personal injury and death, but are equally applicable to all other types of damage.

24 QLD and SA.

25 QLD, ACT, and (in some cases) NT. This approach is now endorsed in the Model Provisions, ss. 2(3)(b), (c).

26 Model Provisions, s. 2 (3); AGSCLJ Impact Statement, Appendix B, pp. 38–41.

27 One stark irony is that, whilst s. 2(3) of the Model Provisions seeks to protect consumers, claims for misleading and deceptive conduct under s. 18 of the Australian Consumer Law (which constitute a primary consumer-protection device) are expressly reserved to proportionate liability.

28 Above note 21. Specific building provisions also continuing in some jurisdictions: above note 16.

29 S. Swanton and B. McDonald, “Reforms of the Law of Joint and Several Liability: Introduction to Proportionate Liability” (1997) 5 T.L.J. 1; M. Tilbury, “Fairness Indeed? A Reply to Andrew Rogers” (2000) 8 T.L.J. 113; M. Duffy, “Proportionate Liability: A Disproportionate and Problematic Reform” (2003) 60 Plaintiff 8; B. McDonald, “Proportionate Liability in Australia: The Devil in the Detail” (2005) 26 Aust. Bar Rev. 29.

30 See e.g. B. McDonald and J.W. Carter, “The Lottery of Contractual Risk Allocation and Proportionate Liability” (2009) 26 J.C.L. 1; B. McDonald, Submission to the Commonwealth Attorneys-General Standing Council on Law and Justice (9 November 2011).

31 Institute for Law Research and Reform of Alberta, Concurrent Contributory Negligence and Wrongdoers (Report No. 31, 1979); Law Reform Commission of British Columbia, Report on Shared Liability (L.R.C. 88, 1986) (advocating a modified joint and several liability system); Ontario Law Reform Commission, Report on Contribution among Wrongdoers and Contributory Negligence (1988); Law Reform Commission of Saskatchewan, The Insolidum Doctrine and Contributory Negligence (1998); Law Commission of Ontario, Joint and Several Liability Under the Ontario Business Corporations Act (2011) (“LCO Report”); Manitoba Law Reform Commission, Contributory Fault: The Tortfeasors and Contributory Negligence Act (2013) (“MLRC Report”).

32 See e.g. Ontario Securities Commission Task Force on Small Business Financing, Final Report (1996).

33 Senate of Canada, Standing Senate Committee on Banking, Trade and Commerce, Joint and Several Liability and Professional Defendants (1998).

34 Cominco Ltd. v Canadian General Electric and Light Co. Ltd. (1983) 50 B.C.L.R. 145 (B.C.C.A.); Leischner v West Kootenay Power and Light Co. Ltd. (1986) 24 DLR (4th) 641 (B.C.C.A.); Inglis Ltd. v South Shore Sales Ltd., Whynot and Canada Accident and Fire Assurance Co. (1979) 31 N.S.R. (2d.) 541 (N.S.C.A.). The same interpretation might be taken of the Saskatchewan provision: MLRC Report, 14, fn. 13.

35 Securities Act, R.S.O. 1990, c. s. 5, s. 138.6 (Ontario); The Securities Act C.C.S.M. c. s. 50, s. 189 (Manitoba).

36 R.S.C. 1985, c. C-44 (“CBCA”), s. 237.

37 CBCA, ss. 237.2(2), 237.5(1). A small investor is currently one investing CAN$20,000 or less.

38 CBCA, s. 237.6(1), (2).

39 LCO Report.

40 MLRC Report, p. 10.

41 UK Law Commission, Feasibility Investigation of Joint and Several Liability (1996), at paras. [7.1], [7.4]–[7.5].

42 [2006] UKHL 20; [2006] 2 A.C. 572.

43 Compensation Act 2006, s. 3.

44 Durham v B.A.I. (Run Off) Ltd. (in scheme of arrangement) [2012] UKSC 14; [2012] 1 W.L.R. 867 (“The Trigger Litigation”).

45 International Energy Group Ltd. v Zurich Insurance Plc. UK [2013] EWCA Civ 39.

46 NZ Law Commission, Apportionment of Civil Liability (NZLC PP 19, 1992); Rep. No. 47, Apportionment of Civil Liability (1998).

47 NZ Law Commission, Review of Joint and Several Liability (Issues Paper No. 32, 2012); Liability of Multiple Defendants (Rep. No. 132, 2014).

48 NZ Law Commission, Issues Paper No. 32, (2012), paras. [6.18]–[6.23].

49 NZ Law Commission Rep. No. 132 (2014), 4 (this provides the best assurance of plaintiff compensation: para. [3.34]).

50 Ibid., Recs 3–5. Minor defendants are those with only a “minor and limited responsibility” for P's loss. Any order made in their favour must ensure that (a) P still receives an effective remedy, (b) the result is fair as between P and the minor defendant, and (c) P does not in consequence receive damages representing anything less than 50% of his or her loss. The Commission also proposes changes to contribution rules between defendants, so as to allow unallocated losses to be distributed between them in proportion to their respective responsibility: Recs 6, 7.

51 Ibid., Recs 8–11 suggest liability caps for building consent authorities and limits on liability for commercial building consents. Recs 12–17 suggest that auditors and accountants be permitted to develop capped liability schemes, as in Australia.

52 Restatement, comment (a) to §10, p.101. The scope of the Restatement project is confined to core cases of personal injury and property damage.

53 For a different view, see D. Partlett, “Apportionment and Tortfeasors in Australia: Professionals’ Liability and Economic Loss: An Outside View” (2014) 22 T.L.J. 1 (hinting that there might be a moral case for proportionate liability in personal injury cases, but that cases of pure economic loss are only “in some pale part” a matter of personal responsibility).

54 Other reasons to be wary of the comparison include different costs provisions and joinder rules: NSWLRC Rep. No. 89 (1999), para. [2.14].

55 See K. Burns, “Distorting the Law: Politics, Media and the Litigation Crisis: An Australian Perspective” (2007) 15 T.L.J. 195.

56 In Australia, these are short – three years at federal level and three or four years in the states and territories.

57 J. Cardi, “Apportioning Responsibility to Immune Non-Parties: An Argument Based on Comparative Responsibility and the Proposed Restatement (Third) of Torts” (1996–97) 82 Iowa L.Rev. 1293.

58 This is essentially the argument adopted by A. Twerski, “The Joint Tortfeasor Legislative Revolt: A Rational Response to the Critics” (1988–89) 22 U.C. Davis L.R. 1125, in his debate with Wright (“Allocating Liability”): the solutions are a product of choice, not logical error.

59 An “analogy” or “conceptual link” is hence noted even by those who reject the idea that comparative negligence can be used to justify introducing proportionate liability: NSWLRC Rep. No. 89 (1999), paras. [2.27], [2.30]; Weir, “All or Nothing”. Weir thought comparative negligence more acceptable than either proportionate liability or (in fact) contribution between tortfeasors, while clearly recognising some links between the different ways in which “all or nothing” was eroded.

60 Standard Chartered Bank v Pakistan National Shipping Corpn. and Others (Nos 2 and 4) [2002] U.K.H.L. 43; [2003] 1 A.C. 959, at [12], per Lord Hoffmann.

61 Pritchard v Cooperative Group (CWS) Ltd. [2011] EWCA Civ 329; [2012] QB 320.

62 Standard Chartered Bank [2002] U.K.H.L. 43; [2003] 1 A.C. 959.

63 The cases above interpreted legislation which also applies to Scotland.

64 S. Deakin, “Evolution for Our Time: A Theory of Legal Memetics” (2002) 55 C.L.P. 1, identifies “concepts” as the key to legal evolution.

65 M. Green, “The Unanticipated Ripples of Comparative Negligence: Superceding Cause in Products Liability and Beyond” (2001–2) 53 S.Cal.L.Rev. 1103. Lack of attention to broader effects of comparative negligence is noted by Goudkamp, J., “Rethinking Contributory Negligence” in Pitel, S., Neyers, J., and Chamberlain, E. (eds.), Tort Law: Challenging Orthodoxy (Oxford 2013), 309.

66 Steele, J., “Collisions of a Different Sort: The Law Reform (Contributory Negligence) Act 1945” in Arvind, T.T. and Steele, J. (eds.), Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change (Oxford 2013).

67 Weir, “All or Nothing”, sardonically refers to “the ‘let it all hang out’ atmosphere of the 1960s” as a dubious possible explanation (at p. 549).

68 Vellino v Chief Constable of Greater Manchester [2001] EWCA Civ 1249; [2002] 1 W.L.R. 218, 229.

69 Comparative negligence is debated in terms of “compromise” by both Weir, in “All or Nothing”, and J. Coons, “Approaches to Court-Imposed Compromise: The Uses of Doubt and Reason” (1963–64) 58 Nw.U.L.Rev. 750.

70 See Coons, “Approaches to Court-Imposed Compromise”.

71 For the possible basis of compromise in agreement, see the starting point adopted by Golding, M., “The Nature of Compromise: A Preliminary Inquiry” in Pennock, J.R. and Chapman, J.W. (eds.), Compromise in Ethics, Law and Politics (New York 1979).

72 Above note 15. Note however Coons's suggestion that judges too have some ammunition for achieving compromise, for example where the law generates so many conflicting rules that a court may hold for one party as to some heads, the other party as to others, and the claim is in effect compromised.

73 Both positions are reviewed by Golding, “The Nature of Compromise”.

74 Gardner, J., “What Is Tort Law For? Part 2. The Place of Distributive Justice” in Oberdiek, J. (ed.), Philosophical Foundations of the Law of Torts (Oxford 2014), ch. 16, 335.

75 Merkin, R. and Steele, J., Insurance and the Law of Obligations (Oxford 2013), chs 5 and 11.

76 Factors judged relevant to contribution proceedings in UK courts have included the fact that one liable party holds undisgorged profits (Dubai Aluminium Co. Ltd. v Salaam [2003] 2 A.C. 366); and the manner in which one party has run its defence (Re-Source America International v Platt Site Services Ltd. [2004] EWCA Civ 665). Neither of these is a “causative” factor. Cases in Australia have deployed the same sorts of criteria in proportionate liability proceedings. The appropriateness of this has been questioned – see McDonald, “Proportionate Liability in Australia”.

77 Namely, comparison of the defendant's responsibility with that of other defendants.

78 Hunt &. Hunt v Mitchell Morgan Nominees Pty. Ltd. [2013] HCA 10, at [15], per French C.J., Hayne, and Kiefel JJ. Note also the title of the relevant NSW legislation, which expressly refers to “personal responsibility”.

79 W. Landes and R. Posner, “Joint and Multiple Tortfeasors: An Economic Analysis” (1980) 9 J.L.S. 517); L. Kornhauser and R. Revesz, “Sharing Damages among Multiple Tortfeasors” (1989) 98 Yale L.J. 831; “Apportioning Damages Amongst Potentially Insolvent Actors” (1990) 19 J. L.S. 617; C.A. Blyth and B.M.H. Sharp, “Solidary and Proportionate Liability: An Economic Analysis” (unpublished paper, 1995); “The Rules of Liability and the Economics of Care” (1996) 26 V.U.W.L.R. 91; Richardson, Economics; NZ Law Commission, Issues Paper No. 32 (2012), para. [8.3] and Rep. No. 132 (2014), para. [1.4].

80 Kornhauser and Revesz (1990), op cit.

81 The deductive approach to economics (reliant on “praxeology”) is most often associated with the work of Ludwig Von Mises. See further Murray Rothbard, N., “Praxeology: The Methodology of Austrian Economics” in Murray, N. Rothbard (ed.), The Logic of Action One: Method, Money, and the Austrian School (Cheltenham 1997), 5877.

82 Blyth and Sharp, “Solidary and Proportionate Liability”.

83 Richardson, Economics, at paras. [2.11]–[2.12] (pointing to the role of “gatekeepers”).

84 On the potential effects, see T. Horan, “Key Developments: Proportionate Liability”, paper presented to the Melbourne Law School Construction Law Program 10th Anniversary Function, 10 November 2009, paras. [37]–[43]; D. Levin, “Proportionate Liability: The Australian Experience” (2011) 9–11 Build. Law (New Zealand Building Disputes Tribunal Quarterly Newsletter).

85 See e.g. Senator Helen Coonan, Speech to the Insurance Council of Australia Conference, Canberra, 14 August 2003 (joint and several liability has “giv[en] … rise to a deep pocket approach to litigation” which is in turn a “factor in driving exponential increases in professional indemnity premiums”). See also Report on Reform of Liability Insurance Law in Australian (Commonwealth 2004), 10.

86 E. Wright, “National Trends in Personal Injury Litigation: Before and After Ipp” (2004) 14 T.L.J. 233.

87 J.J. Spigelman, “Negligence and Insurance Premiums: Recent Changes in Australian Law” (2003) 11 T.L.J. 1; P. Cane, “Reforming Tort Law in Australia: A Personal Perspective” (2003) M.U.L.R. 649.

88 A recent report by the Australian Prudential Regulation Authority (Overview of Professional Indemnity and Public and Product Liability Insurance, June 2013) suggests that both professional indemnity and public/product liability insurance premiums have declined (by up to 50% and between 20% and 25% respectively) since 2003.

89 For the view that there is “no clear evidence” that proportionate liability has reduced premiums, see Hon. Justice C. Macaulay, “Proportionate Liability: Is It Achieving Its Aims?”, paper presented at Australian Insurance Law Seminar, 2 December 2010; B. McDonald, “The Impact of the Civil Liability Legislation on Fundamental Principles and Policies of the Common Law of Negligence” (2006) 14 T.L.J. 268 (caps on damages and costs are more likely to be responsible).

90 Wright, “National Trends”. See similarly on the US experience Wright, “Allocating Liability”; “Throwing the Baby out with the Bathwater: A Reply to Professor Twerski” (1989) 22 U.C. Davis L.Rev. 1147.

91 On precisely this point, see the LCO Report, pp. 35–36: “not enough public data”; “while there are data on rising litigation exposure, they do not establish that joint and several liability is responsible or that proportionate liability is necessarily the answer”.

92 Horan, Proportionate Liability, Recs 2, 3 and pp. 16, 30.

93 LCO Report, pp. 32–33.

94 One objection to this approach voiced by Twerski is that it simply may not be practical – the common law is too slow to respond to urgent pressures and it is impossible for legislatures constantly to intervene in its substance in particular fields: Twerski, “The Joint Tortfeasor Legislative Revolt”, pp. 1132, 1138, 1140. There is some substance to these points which may be another reason why damages caps are a better solution. See further below.

95 NZ Law Commission, Issues Paper No. 32 (2012), paras. [5.6]–[5.26] and Rep. No. 132 (2014), para. [1.18], fn 18.

96 D.&..F Estates Ltd. v Church Commissioners for England [1989] A.C. 177; Murphy v Brentwood District Council [1991] A.C. 398.

97 Companies Act 2006, ss. 532–538, providing for the validity of agreements to limit auditors’ liability so far as they are fair and reasonable.

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