Apportionment in Private Law (Hart Studies in Private Law)

This collection of essays investigates the way in which modern private law apportions responsibility between multiple parties who are (or may be) responsible for the same legal event. It examines both doctrines and principles that share responsibility between plaintiffs and defendants, on the one hand, and between multiple defendants, on the other. The doctrines examined include those ‘originating’ doctrines which operate to create shared liabilities in the first place (such as vicarious and accessorial liability); and, more centrally, those doctrines that operate to distribute the liabilities and responsibilities so created. These include the doctrine of contributory (comparative) negligence, joint and several (solidary) liability, contribution, reimbursement, and ‘proportionate’ liability, as well as defences and principles of equitable ‘allowance’ that permit both losses and gains to be shared between parties to civil proceedings. The work also considers the principles which apportion liability between multiple defendants and insurers in cases in which the cause, or timing, of a particular loss is hard to determine. The contributions to this volume offer important perspectives on the law in the UK, USA, Canada, Australia and New Zealand, as well as a number of civilian jurisdictions. They explicate the main rules and trends and offer critical insights on the growth and distribution of shared responsibilities from a number of different perspectives – historical, comparative, empirical, doctrinal and philosophical. Volume 30 in the series Hart Studies in Private Law Preface Acknowledgements Contents Table of Cases Table of Legislation List of Contributors PART I: FRAMEWORKS, ETHICS AND POLITICS 1. Apportionment in Private Law: Nothing, All, or Something in Between? I. Introduction II. Aims and Overview III. Frameworks, Ethics and Politics IV. Originating Doctrines V. Plaintiff-Defendant Apportionment VI. Apportionment Between Defendants VII. Conclusions 2. Allocating Liability Among Multiple Responsible Causes: Principles, Rhetoric and Power I. Introduction II. Principles III. Rhetoric IV. Power V. Conclusion 3. Full, No, or Partial Liability? That is the Question - Some Answers from a Civilian Perspective I. Introduction II. Lone Injurer III. Plurality of Events IV. Concluding Remarks PART II: ORIGINATING DOCTRINES 4. Vicarious Liability: A Pailful of Slops and Other Hazards I. English Law: Customs of the Realm II. Masters and Servants: Commands III. Masters and Servants: Authority IV. Vicarious Liability, Pleading and the Boundary Between Trespass and Case V. The Uncertain Scope of Vicarious Liability VI. Servants Acting in the Course of Employment VII. Vicarious Liability in a Welfare State VIII. Vicarious Liability: A Return to Enterprise Liability? 5. Accessories, Joint or Independent Liability and Apportionment I. Introduction II. The Framework of Accessory Liability III. Accessory Liability in Tort Law IV. Accessories to Breach of Contract: Inducing Breach of Contract V. Equitable Accessory Liability VI. Contribution and Apportionment VII. Proportionate Liability in Australia VIII. Conclusion PART III: PLAINTIFF-DEFENDANT APPORTIONMENT 6. Contributory Negligence and Apportionment in Canadian Tort Law I. Introduction II. Why Apportion at All? III. The Basis of Apportionment in Canadian Law IV. The Effect of a Finding of Contributory Negligence V. Proximate Cause and 'Last Clear Chance' VI. Scope of the Statutory Contributory Negligence Defence VII. Conclusion 7. Contributory Negligence and Professional Negligence: An Empirical Perspective I. Introduction II. The Law of Contributory Negligence in Outline III. Methodology IV. Results V. Discussion VI. Conclusion Appendix 8. Allocating the Costs of Making Restitution: Change of Position I. Development of the Defence of Change of Position II. The Change of Position Defence as a Loss Allocation Mechanism III. Conclusion 9. Certainty in Calculating Monetary Remedies for Breach of Fiduciary Duty I. What is Certainty? II. Certainty of Loss: Equitable Compensation III. Certainty of Gain: Account of Profits IV. Implications of Certainty: Breach of Fiduciary Duty V. Conclusion PART IV: APPORTIONMENT BETWEEN DEFENDANTS 10. Contribution Among Wrongdoers: Reducing the Risk of Contribution Recovery Shortfall and Other Issues I. Introduction II. Brief Overview of Contribution in Common Law Canada III. Solutions for CRS IV. Other Issues in Contribution Jurisprudence V. Conclusion 11. Reforming a Reform: Why Has It Been So Hard to Reform Proportionate Liability Reforms? I. Introduction II. Overview III. The Proportionate Liability Legislation: Why and How it was Enacted IV. Hurdles to Uniformity V. The Fairness of the Regime - Is It Demonstrated by the Case Law? VI. Conclusion 12. Causation and Proportional Recovery I. The Impact of Fairchild II. In Defence of Fairchild III. In Support of Fairchild: Causation in the Insurance Context IV. Conclusion 13. Justice Between Defendants: A New Zealand Note on (non) Law Reform I. Introduction II. Contribution in the Law Commission III. The New Zealand Supreme Court as a Law Reformer IV. Overall Conclusion Index "This collection of essays investigates the way in which modern private law apportions responsibility between multiple parties who are (or may be) responsible for the same legal event. It examines both doctrines and principles that share responsibility between plaintiffs and defendants, on the one hand, and between multiple defendants, on the other. The doctrines examined include those 'originating' doctrines which operate to create shared liabilities in the first place (such as vicarious and accessorial liability); and, more centrally, those doctrines that operate to distribute the liabilities and responsibilities so created. These include the doctrine of contributory (comparative) negligence, joint and several (solidary) liability, contribution, reimbursement, and 'proportionate' liability, as well as defences and principles of equitable 'allowance' that permit both losses and gains to be shared between parties to civil proceedings. The work also considers the principles which apportion liability between multiple defendants and insurers in cases in which the cause, or timing, of a particular loss is hard to determine. The contributions to this volume offer important perspectives on the law in the UK, USA, Canada, Australia and New Zealand, as well as a number of civilian jurisdictions. They explicate the main rules and trends and offer critical insights on the growth and distribution of shared responsibilities from a number of different perspectives - historical, comparative, empirical, doctrinal and philosophical."-- Provided by publisher "This collection of essays investigates the way in which modern private law apportions responsibility between multiple parties who are (or may be) responsible for the same legal event. It examines both doctrines and principles that share responsibility between plaintiffs and defendants, on the one hand, and between multiple defendants, on the other. The doctrines examined include those 'originating' doctrines which operate to create shared liabilities in the first place (such as vicarious and accessorial liability); and, more centrally, those doctrines that operate to distribute the liabilities and responsibilities so created. These include the doctrine of contributory (comparative) negligence, joint and several (solidary) liability, contribution, reimbursement, and 'proportionate' liability, as well as defences and principles of equitable 'allowance' that permit both losses and gains to be shared between parties to civil proceedings. The work also considers the principles which apportion liability between multiple defendants and insurers in cases in which the cause, or timing, of a particular loss is hard to determine. The contributions to this volume offer important perspectives on the law in the UK, USA, Canada, Australia and New Zealand, as well as a number of civilian jurisdictions. They explicate the main rules and trends and offer critical insights on the growth and distribution of shared responsibilities from a number of different perspectives - historical, comparative, empirical, doctrinal and philosophical"--Résumé de l'éditeur