Date: Fri, 16 Sep 2005 08:41:41 -0400 (EDT)

From: David Cheifetz

Subject: Apportionment, Causative Potency, Blameworthiness

Charles

'Ha!' David is happily exclaiming. 'No rational basis for division of causation, eh? My point, I think.'

Not to be too picky but, though I am Canadian, the "eh" interjection isn't one of my failings. I will, however, admit to having a paternal grandmother born in Wales who lived first in Merthyr Tydfil then later in Swansea. (I think that was the order; not the reverse.)

More to the point.

I think you're overstating my view to make a valid point that there's a significant amount of arbitrariness - and fuzziness in concept - in the apportionment process. Under my view of how to make some practicable sense out of the process - bearing in mind that I usually have to explain my desired result to judges who usually don't have your background - your examples wouldn't produce equal apportionment of financial responsibility as between the wrongdoers; that is, an equal attribution of fault. They'd produce unequal apportionments. That's (at least) because I don't equate the concepts of causation and fault.

I wonder if what we're having is a terminology dispute rather than a concept dispute in our search to describe and define the values? factors? that allow us to compare actionable misconduct and conclude that one wrongdoer should be assigned more of the financial responsibility for the compensable damages than another. That is, to what extent are the factors that, for you, define "causative potency" the factors that I would describe as "blameworthiness"? Is my "blameworthiness" your "relative causative potency"?

The point I'm trying to make is that using causation in a "how much damage did the misconduct cause" sense is conceptually inconsistent with the first assumption that in contribution all of the misconduct is a legal cause all of the damage. I appreciate that you a struggling for a way to express, in language, a quantifiable concept expressing the proposition that some conduct played a greater part in the end result than other conduct. So am I. You want to use a concept that includes some notion of causation and uses a variation of "cause" in its phrasing. I think we need to stay away from phrases that use some version of "cause", for reasons such as the analyses (if not necessarily the results) in Rahman v Arearose as well as Holtby v. Brigham & Cowan (Hull) Ltd., [2000] EWCA Civ 111 and Allen v. British Rail Engineering Ltd., [2001] EWCA Civ 242. [I'm aware that Stapleton thinks the evidence supported the divisions, conclusions, and results. If she's right on the evidence as presented, she's right. Nonetheless, theres' a lot of quacking in the background of the judicial reasoning.]

I'll use your last paragraph as an example.

If David is right that causative potency is a meaningless concept, then we can only say that D1 and D2 are equally the causes of the beneficiaries' loss and that D1's actions have had no greater impact on the beneficiaries' position than D2's actions. [No - I'd say that D1's actions are more blameworthy, in your description, in this case because D1 was the prime mover and D2 merely an assistant.] D1 initiated the process and D2 was a follower But can we not meaningfully say that D1's actions in initiating a scheme to steal from the beneficiaries and salt the money away [me - is more blameworthy conduct in relation to the ] [you - are a more potent cause of their] loss than D2's actions in moving money from one bank account to another on D1's directions? Cf Schott Kem Ltd v Bentley [1991] 1 QB 61 at 76; Arab Monetary Fund v Hashim The Times 11 Oct 1994. Take D2 out of the picture and the loss would still be incurred; take D1 away and it wouldn't be. David would say that this makes no difference but I doubt this. [No, I wouldn't say that it makes no difference, for reasons explained. D1 is more blameworthy. So, on the facts only as you've described, as between D1 and D2, D2's share of the financial responsibility for P's damages would be less. There would be examples where the "helper's" input was the more significant conduct.]

In passing: you referred to examples where D2's own conduct was not sufficient of itself, and would not satisfy (traditional) but-for analysis, but nonetheless D2 was held liable because D2 helped. I haven't read the cases you refer to but it seems to me that, on traditional analysis, D2 was a joint wrongdoer (tortfeasor) with D1. That means that D1's conduct was deemed to be D2's, also. And that means that D2 was held liable on the basis of causative conduct.

Returning to our discussion of terminology, to say that D1 is more to blame than D2 doesn't translate meaningfully into a statement that D1's conduct was more potent than D2's in any meaning of "potent" that I'm comfortable with, if potent is a synonym for cause in some arithmetical sense. In R. Fumerton and K. Kress, Causation And The Law: Preemption, Lawful Sufficiency And Causal Sufficiency (2001), 64 Law and Contemporary Problems 83 at 105, the authors end their analyses of what they see as inadequacies in the current theories of causal connection in law with this admonition.

"An increasing number of philosophers seem to be willing to take the concept of causal connection as a primitive (unanalyzable) concept - one of the conceptual atoms out of which we build more complex concepts or ideas. But one does not need to be overly cynical to wonder whether this embrace is not born out of sheer frustration with the inability to say something interesting yet true about what constitutes the essence of causation. In any event, if the law is waiting for philosophers to offer something better than a prephilosophical grasp of what is involved in one thing causing another, the law had better be very patient indeed."

It may well be that we have a similar problem of an unanalyzable concept, here.

I appreciate that your response may be that I'm dodging the use of "cause" when blameworthiness somehow incorporates a causation concept. At the moment, my only response to that is to agree that it does; but only at the threshold of determining, as between the wrongdoer and the injured person, whether that wrongdoer is liable at all for the damage sustained by the injured person. If the wrongdoer is, then the wrongdoer is blameworthy. But the relative amount of blameworthiness as between T1 and T2 is not relevant to the injured person's right to succeed against T1 or T2 because any amount of actionable causation is sufficient causation. That is, it doesn't matter to P that somebody other than T1 is at fault (so long as T1 has enough money to pay). So, yes, in my construct in the ultimate apportionment of financial responsibility between the multiple wrongdoers, this could bring into play non-causative factors when we determine how much contribution one wrongdoers has to pay another. But, then, Svengali should pay more than Trilby, eh?

Best,

David

_________________________
David Cheifetz
Bennett Best Burn LLP

Charles Mitchell wrote:

Your response raises several interesting points, Allan, and has made me think that my example is a bad one, though I'm not ready to give up on the idea of relative causative potency just yet.

If D1 driving at 60 mph hits a pedestrian then he is likely to cause him significantly more damage than D2 who hits a pedestrian when driving at 20 mph. Hence if they both hit him at the same time and cumulatively cause him harm then it is likely that a greater proportion of this harm was caused by D1's actions than by D2's actions.

If we knew for sure that (say) three-quarters of the harm was caused by D1 and one-quarter by D2, then really we'd be saying that they have caused him two different harms, and that D1 was the sole cause of one and D2 the sole cause of the other. This would then make D1 solely liable for one and D2 solely liable for the other, and so they wouldn't be liable for the same damage and there would be no contribution claim. The courts quite like doing this, even in pretty unpromising circumstances (e.g. Rahman v Arearose Ltd [2001] QB 351), because it means they can avoid making D1 and D2 pay for harm which they haven't caused.

But let's say the harm suffered by the victim is indivisible. If we know for sure that either D1 or D2 would have caused the whole of the harm, absent the other, then the point I overlooked when I wrote my example was of course that neither is liable on a but-for test because each can say that the other's actions caused the harm. We've arrived at Fitzgerald v Lane [1989] AC 328: the court must fudge it and say that their actions, considered separately, were each a cause of the harm, and that this is enough for liability.

How should an apportionment be made between D1 and D2 in this kind of case? You would say that neither defendant's actions can have been a more potent cause of the harm, producing the conclusion that an apportionment based solely on causative potency would have to be equal. On reflection I would arrive at the same conclusion, but for a slightly different reason, namely that we have no rational basis for division of causation between them and so we must fall back on the rule that where a court has no reason to make an unequal apportionment it must apportion equally: cf EM Baldwin & Son Pty Ltd v Plane [1999] ATR T91-499.

'Ha!' David is happily exclaiming. 'No rational basis for division of causation, eh? My point, I think.'

But wait ... As I said at the start, it's not a good example. It runs us into evidential problems and we have to use a default rule. But let's take another example, in equity this time. Suppose that D1 is a bad trustee and D2 is a dishonest assistant who helps him launder misappropriated trust funds. Suppose that we can prove that D1 would have taken the trust funds whether or not D2 had helped him, but that D2's help has made it a bit easier for D1 to carry through his dishonest scheme. On a but-for basis D2 has not caused the beneficiaries' loss, but he's still liable to them because he helped D1: Grupo Torras v Al-Sabah (No 5) QBD 24 June 1999; Casio Computer Ltd v Sayo [2001] EWCA Civ 661.

If David is right that causative potency is a meaningless concept, then we can only say that D1 and D2 are equally the causes of the beneficiaries' loss and that D1's actions have had no greater impact on the beneficiaries' position than D2's actions. But can we not meaningfully say that D1's actions in initiating a scheme to steal from the beneficiaries and salt the money away are a more potent cause of their loss than D2's actions in moving money from one bank account to another. on D1's directions? Cf Schott Kem Ltd v Bentley [1991] 1 QB 61 at 76; Arab Monetary Fund v Hashim The Times 11 Oct 1994. Take D2 out of the picture and the loss would still be incurred; take D1 away and it wouldn't be. David would say that this makes no difference but I doubt this.

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