Date: Wed, 14 Sep 2005 08:49:41 -0400

From: David Cheifetz

Subject: Brian Warwicker v Hok [2005] EWCA Civ 962

Andrew,

Thank you (I think) for drawing this case to my attention. This case, particularly Lady Arden's reasons, is as good a case as any if I ever need an example of appellate dancing in the face of illogical precedent, the constraints of stare decisis, the decision not to depart (or consider departing from precedent), the panel's recognition of the flaws in the precedent, all coupled to the subsequent panel's unwillingness to describe the precedent for what it was. And a very good proof of the core of truth in Lord Denning's railing, in The Discipline of the Law, against too-blind adherence to precedent. I appreciate that Re-Source was barely 15 months old by the time of Warwicker, but that is more reason to allow reconsideration than it would be a factor against if the court were dealing with an entrenched principle that had consequences elsewhere in the system. Some years ago, an Alberta Master known for his wit succinctly described the way stare decisis based systems work. It's worth repeating for what its sometime implications (certainly unintended) about those higher up the food-chain. He wrote, in South Side Woodwork (1979) Ltd. v RC Contracting Ltd., [1989] A.J. No. 111, 95 A.R. 161 at 166-67, para. 51-53 (Alta. Q.B., Master):

Any legal system which has a judicial appeals process inherently creates a pecking order for the judiciary regarding where judicial decisions stand on the legal ladder. I am bound by decisions of Queen's Bench judges, by decisions of the Alberta Court of Appeal and by decisions of the Supreme Court of Canada. Very simply, Masters in Chambers of a superior trial court occupy the bottom rung of the superior courts' judicial ladder. I do not overrule decisions of a judge of this Court. The judicial pecking order does not permit little peckers to overrule big peckers. It is the other way around.

I combined the sentences combined into one paragraph but didn't change the text.

It seems to me that logic does not require that we equate "responsibility" with (degrees of) causation, in the phrase "the amount of contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to that person's responsibility for the damage in question"; however, I appreciate it may now be too late for any UK court other than the HL, or otherwise Parliament, to unwind "causative potency", particularly since Dubai Aluminium doesn't make sense without accepting that causative potency is somehow connected to some attempt to quantify degrees of causation. It's not as if both academic and judicial scholarship haven't recognized the impracticability of parsing degrees of causation beyond the basic question of whether the conduct was, or was not, a legal cause of the damages. A very good judgment is Barisic v. Devenport, [1978] 2 N.S.W.L.R. 111 (N.S.W.C.A.)

Anyway I don't see a solution for the conundrum of the use of non-causative factors in the UK apportionment approach until some appellate level, or the HL, or Parliament, recognizes that it makes no sense to base apportionment on anything that amounts to parsing degrees of causation. The point is that contribution is premised on the notion that contribution claimant and contribution defendant both caused all of the damage for which the contribution claimant paid damages to the injured person.

Regards,

David

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David Cheifetz
Bennett Best Burn LLP

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