The people who sit behind the ornate steel fencing on the raised benches a few minutes west northwest of your office, and north of mine, tell us they're apportioning fault based on relative blameworthiness; that is, who as between T1 and T2, or even as between P and T, or P and all of the Ts is more to blame (more at fault) for the loss sustained by P. If that isn't, somehow, a measure of relative causative input - and I'm certain they'd insist it's not - then what else is could it be other than a moral judgment?

Are you arguing for some sort of purely causative-input based analysis? "Which one is more responsible" translates into "who is more to blame" which translates into who ought to bear more of the financial responsibility. "Ought", whatever else it is, is the moral smoking gun.

The Alberta Court of Appeal almost recognized this in Heller v. Martens, (2002), 213 D.L.R. (4th) 124, 2002 ABCA 122 which is a seat-belt case.

The court stated [at para 1] that the issue before it was whether "liability in seat belt cases should be apportioned based on overall fault, known as the comparative blameworthiness approach, or based on the extent to which the injuries would have been reduced had a seat belt been worn, known as the causation approach."

The court's definitions were: "The causation approach focuses on the extent to which each party's conduct contributed to the consequences of the tortious act. In seat belt cases it involves an examination of the extent to which the injury would have been reduced had a seat belt been worn." [para 19]. However, "The comparative blameworthiness approach requires a court to examine all the circumstances of the parties' misconduct to determine their relative negligence. Ultimately, this requires 'an assessment of relative misconduct from the perspective of departures from standards of reasonable care'" [para 30]. "Apportionment is affected by the weight of the fault that should be attributed to each of the parties, not the weight of causation." [para 32]. "Fault may vary from extremely careless conduct, by which a party shows a reckless indifference or disregard for the safety of persons or property, to a momentary or minor lapse of care in conduct which, nevertheless, carries with it the risk of foreseeable harm. Degrees of contributory negligence are assessed accordingly." [para. 35]. Finally, "While it is debatable whether causation should have any place in an apportionment analysis, if it is considered, it obviously does not tip the scales against the plaintiff. Apportionment is based on comparative blameworthiness; it should not be based to any significant degree on the extent to which injuries would have been reduced or avoided had a seat belt been worn." [para 41.]

The list provided by the court of some of the factors relevant on the blameworthiness analysis includes any number of factors which by definition can't be causative, beginning with the nature of the duty breached by wrongdoer. [para 34].

Heller is somewhat odd in that, if the CA reasons are accurate, the defendant attempted to argue in favour of a "pure" causation based approach on policy (i.e. normative, i.e. moral) grounds. This is the court's response [para 43]:

Martens filed considerable material outlining policy reasons for encouraging seat belt use, and urged this court to promote their use by basing apportionment on causation of damages. Seat belts may save lives, but tort law is a clumsy tool for social engineering. The Alberta legislature has already chosen to attach penal consequences to a failure to wear a seat belt in certain circumstances: Highway Traffic Act, supra ss. 65, 168. If it wishes to limit recovery in damages for parties whose failure to wear a seat belt contributes to their injuries, it can enact appropriate legislation. In the meantime, courts are required to determine "the degree in which each person was at fault [...] having regard to all the circumstances of the case": CNA s. 1(1). In seat belt cases, that involves an analysis of comparative blameworthiness.

One of the reasons the court gave for rejecting what it described as a pure causation approach was that it was tantamount to reinstating last clear chance and was inconsistent with the objectives of tort law which the court stated are [para 26]

to restore the plaintiff to the position he or she would have enjoyed but for the negligence of the defendant ... to compensate the injured and deter the tortfeasor.

Then,

The pure causation approach has little judicial support in this province, operates much like the abolished last clear chance doctrine and fails to address the primary objectives of tort law. For these reasons, the more integrated approach of comparative blameworthiness is preferred. [para 29].

Heller is unusual in that its a Canadian case in which there's more than just a passing mention of the English causative potency approach. This passage in Heller [para 38] is worth a smile: "It is obvious that in English seat belt cases apportionment is based on a fixed quantification that is considerably less discretionary than a typical Alberta analysis. Given the different statutory origin and judicial treatment of apportionment in England, one should be hesitant about importing an open-ended causation/blameworthiness approach to allocate liability in seat belt cases in this jurisdiction." I'd have thought that comparative blameworthiness is the open-ended approach.

Anyway, even in a causation-based (whatever that means) approach, if a court retains, at least in contribution cases, the jurisdiction to award one of the wrongdoers full indemnity from another even though the former is also at fault, then there's a moral component. It's there just as well in cases where indemnity is awarded, even absent some sort of indemnity agreement, in cases where the contribution claimant is liable on a basis that does not include fault and where there is no conduct that could be considered sanctionable, even though not actionable - say, strict liability or vicarious liability.

By the way, I see that you are on the presenter list for the June 2006 conference. Do your partners know that somebody considers you a "leading academic"?

Best,

David Cheifetz