Date: Thu, 15 Sep 2005 06:26:17 -0400

From: David Cheifetz

Subject: Apportionment and causative potency

Charles,

I'm not entirely novel in my scepticism. "Causation itself is difficult enough; degrees of causation would really be a nightmare." S. Chapman, Apportionment of Liability Between Tortfeasors, [1948] 64 L.Q.R. 26 at 28. "It must be admitted that in attempting to assess degrees of negligence the judge is trying to measure the immeasurable." G. Williams, Joint Torts and Contributory Negligence (London, Stevens & Sons Ltd., 1951) at 158.

If we start from the premise that each of the wrongdoers caused all of the damage - which is at the heart of contribution theory as I understand it - then isn't it illogical to talk about any of the wrongdoing being a more potent cause if we're using any standard meaning of causation. I appreciate that I could accurately be accused of being too insistent that the analysis in reasons for judgment satisfy logical principles and the tendency of too much "judicial logic" to prove the truth of Humpty Dumpty's adage regarding the meaning of words; and otherwise provide grist for meaningful use of quotations from the works of Lewis Carroll.

Blameworthiness, of course, is a different matter.

As to Barker, perhaps I've misread it. I understood it to be an application of the Fairchild v Glenhaven principle. I've summarized it, elsewhere, to stand for the proposition that it is not a precondition of liability under Fairchild principle, that the injury must have been caused [caused in the sense of traditional factual causation] by someone’s tortious act. It is sufficient that it is established that the defendant in breach of duty to the injured person exposed that person to increased risk of a particular injury occurring and that injury occurred: see paras. 48-50 per Keene L.J and Kay L.J. at paras. 66-68. As I read it, Barker is also significant because it rejects the use of "probabilistic causation" within the Fairchild principle: see paras. 44 and 51-52.

Best,

David Cheifetz
Bennett Best Burn LLP

----- Original Message -----
From: Charles Mitchell
Sent: Thursday, September 15, 2005 5:23 AM
Subject: ODG: Apportionment and causative potency

As I understand David Cheifetz's position, he takes a sceptical view of claims that one person's actions can ever meaningfully be said to have been a more potent cause of harm than another's. I am less sceptical, although I accept that apportionment on this basis is a more or less rough and ready process, depending on the facts of a case. I'm sure that David can point to examples where efforts to apportion on this basis are obviously doomed to failure, but that doesn't mean that it can never be meaningfully done. There was a case in the English CA last year where this problem was touched on: Barker v Saint Gobain Pipelines plc [2004] EWCA Civ 545.

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