Dear Matt and David, In considering when contribution is available concerning injury arising from a tort it is necessary to take into account that in many jurisdictions and many fact scenarios it is statute, derived from the Law Reform (Married Women and Tortfeasors) Act 1935 of the UK, that has a decisive influence on when contribution is available, and any problems concerning the availability of contribution are problems of statutory construction rather than of general law. Examples are the decisions in Nau v Kemp [2010] NSWCA 164, (2010) 77 NSWLR 687 and Newcrest Mining v Thornton [2012] HCA 60, 248 CLR 555. Kind regards, Joe Campbell ________________________________________ From: Daniel Friedmann [frie@post.tau.ac.il] Sent: Sunday, 24 January 2016 4:15 AM To: obligations@uwo.ca Subject: Fw: Contribution from now immune to the injured person tortfeasors - a corrective justice rationale? -----הודעה מקורית----- From: Daniel Friedmann Sent: Saturday, January 23, 2016 1:25 PM To: Dr Matt Dyson ; David Cheifetz ; obligations@uwo.ca Subject: Re: Contribution from now immune to the injured person tortfeasors - a corrective justice rationale? Dear Matt and David, Let me also refer to the chapter 11 (Adjustment Among Multiple Debtors) in vol. X (Restitution/Unjust Enrichment) of the International Encyclopedia of Comparative Law that Nili Cohen and I wrote. See in particular part III on Defences (sec. 25-68 and with regard to immunities: sec.31-34). I apologize for the delay in writing. Best Dan -----הודעה מקורית----- From: Dr Matt Dyson Sent: Monday, August 24, 2015 1:25 PM To: David Cheifetz ; obligations@uwo.ca Subject: Re: Contribution from now immune to the injured person tortfeasors - a corrective justice rationale? Dear David, I mention this to all because one of these sources might interest others but was, until recently, unpublished. Tony Weir discussed something like this problem in two case notes. The first was very long (exceptionally for him) and so was not published in the CLJ as planned, was published privately but appeared after his death in a collected set "Tony Weir, On the Case", kindly published by Hart (2012), p. 59-67 "Subrogation and Indemnity", on Morris v Ford Motor Co [1973] 2 WLR 843. Second, I think he mused on Greatorex v Greatorex [2000] 1 WLR 1970 somewhere, but I can't now recall where, on the effect of that decision in a future case where the son and another party are both negligent, that the father would recover in full from the other party, and that party could not sue the son in contribution; this makes no sense in practice. Basil Markesinis has touched on the latter case, comparatively, for what it's worth: https://law.utexas.edu/transnational/foreign-law-translations/german/case.php?id=671, http://discovery.ucl.ac.uk/182137/1/displayFulltext2.pdf as ever Matt On 23-Aug-15 12:48 AM, David Cheifetz wrote: > Dear Colleagues, > > Charles Mitchell, in /The Law of Contribution/ at para. 6.05 sets out the > problem succinctly: > > "Claims for contribution and reimbursement are claims in unjust > enrichment and a claim in unjust enrichment will not lie unless > the defendant has been enriched. The defendant in a contribution > or reimbursement case will have been enriched if the claimant’s > payment relieves him from an obligation to the creditor, but if > the defendant is not liable to the creditor when the claimant > makes his payment, then in principle the defendant cannot have > been enriched by the payment, and for this reason he should not be > liable for contribution or reimbursement on the ground of unjust > enrichment." > > > I intend to attempt to provide a rationale for those instance where > contribution is allowed even though, in the particular case, the payment > to the injured person in respect of which the contribution claimant seeks > contribution will not provide the contribution defendant with any benefit, > but at some earlier point, could have. This is because the contribution > defendant once could have been, but can no longer be, held liable to the > injured person for any portion of the damages payment in respect of which > the contribution claimant seeks contribution. > > I'm going to attempt the justification, in principle, in corrective > justice thus avoid, I hope, the "no benefit" problem that exists under the > unjust enrichment rationale for the contribution right. > > The most common instances of which I'm aware are where the contribution > defendant has acquired, since the injury occurred, a limitation period > defence to the injured person's claim, or settled with the injured person > and obtained a full release but the amount paid was less than a reasonable > estimate of the settling wrongdoer's "share" of the injured person's > damages. > > (As of writing, my (admittedly frail) recollection is that Mitchell's text > doesn't offer a rationale (except perhaps the fairness argument) in favour > of allowing the contribution claim.) > > Outside of law reform commissions (I'll get to them in a moment) the only > recent (say the past 25 years) scholarship that I know of that > specifically address the issue, by attempting to identify other sources of > the remedy, is Andrew Kull, "The Source of Liability in Indemnity and > Contribution", 36 Loy. L.A. L. Rev. 927 (2003). I am not aware of any > other extensive, recent, attempt to provide an explanation from > principle - actually, any attempt, for what that's worth. > > I have searched, unsuccessfully, albeit just via online searches broadly > (outside the paywalls of WL and L/N), on the LII databases, and > specifically in Google Scholar. I haven't, yet, trekked out to the library > and slogged through reference sources manually. > > The law reform commission solutions, in Canada (with which I am most > familiar) and other British Commonwealth jurisdictions deal with problem, > ultimately, from a fairness perspective, eliding (or conceding) the > problem of principle: asserting that the contribution claimant should not > lose the contribution right merely on account of the conduct of others, > whether that's the injured person in not suing the contribution defendant; > an improvident settlement between the injured person and the contribution > defendant; generally, any event that now provides the contribution > defendant immunity to a claim by the injured person that the contribution > defendant did not have, initially, where the immunity is not the result of > some sanctionable (my term) conduct of the contribution claimant. > > For example, the Ontario Law Reform Commission's 1975 report on > contribution justified allowing the contribution claim, ultimately, on the > fairness basis adding that any other solution, in instances of joint > liability, would give the injured person "too much power to decide who > should ultimately bear the loss". I think it's accurate to say that that > view captures the tenor of subsequent law reform commission reports from > other Commonwealth jurisdictions. > > Any pointers to other academic commentary would be welcome, as well as any > comments. (Feel free to mention cases, too.) > > Many thanks in advance. > > Kind regards, > > David Cheifetz