Date: Thu, 15 Sep 2005 08:20:04 -0400

From: David Cheifetz

Subject: Apportionment, Causation, Blameworthiness, Causative Potency

Charles,

Briefly, for the moment - because I need to head to the office, now, for more mundane matters - such as appearing before our Court of Appeal in a case where the unrepresented plaintiff indulges in illogic that would have astounded the Pythons at their peak.

It seems to me that causative potency, whatever it means, could be relevant only at the threshold level where we consider whether the impugned conduct is a legal cause (factual, proximate). After that, its use is spent. As such, I don't see that the phrase adds anything to our understanding of what legal causation means nor our understanding of the apportionment process.

And, it seems to me that, in your second reason, you are conflating blameworthiness with causation. Blameworthiness, as I've said, compares the extent to which each of the wrongdoers departed from that wrongdoer's standard of care. Too me, that's the only approach that avoids attempts to compare what isn't comparable.

If what you mean by "causative potency" is what I mean by blameworthiness; then we're saying the same thing. However, it seems to me that you don't because your use of causative potency implies that you are measuring the amount of causative effect. I just don't see how that measurement is helpful or meaningful (or even plausible) beyond the admittedly (ultimately) arbitrary conclusion of whether the impugned conduct did or did not cause the damage. What is your "unit" of measurement in determining the amount of the causative effect?

Using a bad analogy that sometimes helps - concurrent wrongdoers are like joint tenants when in comes to causation, from the perspective of the injured person. They have an undivided interest in the whole (of the damage) rather than a divided interest in the whole (of the damage).

I will attempt to reply in more detail later this evening (my time).

Best,

David

----- Original Message -----
From: Charles Mitchell
Sent: Thursday, September 15, 2005 7:36 AM
Subject: ODG:

Dear David

I would suggest that you are in danger of conflating two separate matters when you write:

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.

In any contribution case concerning a pair of tortfeasors there are two reasons why the causative potency of their actions can matter:

(1) because if their actions had no causative potency at all then there would be no tortious liability in the first place and so no contribution claim;

(2) because if we can say that relative to one another their actions were of unequal causative potency then that may be a reason to make an unequal apportionment for the purposes of the contribution claim.

Let's say for the sake of the argument that a victim sues D1 and D2 in tort for causing him the same damage, that the relevant causation test to establish D1 and D2's liability is 'but-for', and that this test is satisfied for both of them: but for D1's actions the harm would not have occurred, and but for D2's actions the harm would not have occurred.

Looking at (1) we can then say that the pre-requisites for a contribution claim between D1 and D2 are in place, and it makes no difference whether D1's actions were more causatively potent than D2's: they have both passed the threshold for liability; they are both liable to the victim for the same damage.

Now let's look at (2). Now it does matter if D1's actions were more causatively potent than D2's. Yes D1's and D2's actions are similar insofar as they have both passed the 'but-for' threshold. But this does not meant that they are necessarily the same. It does not follow from the fact that 'but-for' was the test used to establish liability to the victim that the court cannot use a different test to assess the relative causative potency of their actions for the purposes of a contribution claim.

An analogous fallacy can be found in Nolan v Merseyside CC (1982) 133 NLJ 616 where May LJ held at 621 that one breach of an absolute statutory duty could be neither more nor less blameworthy than another: the better view was taken by Tucker J in Rippon v Port of London Authority [1940] 1 KB 858 when he held at 866-7 that two parties were unequally blameworthy even though they were both strictly liable for breaches of statutory duty.

Suppose I'm on a pedestrian crossing and two negligently driven cars hit me simultaneously, one travelling at 60 mph and one travelling at 20 mph. I am badly injured. Both drivers have caused my injuries on a but-for test. But I would still argue (from my hospital bed - I just keep on going) that the actions of D1 driving the first car were a more potent cause of my injuries than the actions of D2 driving the second car.

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