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Contribution and Apportionment: Unruly Horses? - Charles Feeny & Sam Irving, Complete Counsel

25/01/18. "Public policy is a very unruly horse, and when once you get astride, you never know where it will carry you." These oft repeated words were those of Borough J in Richardson v. Mellish in 1824 and are the first reference to the much repeated maxim, that resorting to public policy is equivalent to mounting an unruly horse. The expression has been used in the law of tort in other contexts too, most recently in Lumba v. Secretary of State for the Home Department. in relation to the suggested introduction of vindicatory damages. The expression connotes a broad ranging approach without sufficient regard for detail or legal principle. In this article, we will suggest that the Courts’ approach to contribution and apportionment, whilst not necessarily equivalent to the worst behaved equines, still does not have sufficient regard for legal principle and structure. The general approach of the Courts in considering contributory negligence and apportionment between tortfeasors has been more akin to discretion with a concomitant reluctance to review on appeal. Normative principles are not always identified and, where they are, on closer analysis they often prove to be intuitive or ad hoc rather than forming the basis of a structured approach to contribution and apportionment.

 

Understanding how concepts of contribution and apportionment first developed is significant in appreciating how they have been applied. Traditionally, the common law engaged only in binary solutions reflecting the generally straightforward nature of litigation at the time. Perhaps the best example of this is the "last opportunity" rule where a Plaintiff's own wrongdoing was sufficient to act as a complete defence in tort, and similarly the liability between Defendants was judged by who had the last opportunity to avoid injury or damage. This much derided rule can be seen as an attempt to maintain a binary approach in more sophisticated disputes where realistically more than one party had responsibility for the damage in question. The last opportunity rule was abolished in relation to joint tortfeasors by the Law Reform (Married Women and Tortfeasors) Act 1935 and in relation to Claimants by the Law Reform (Contributory Negligence) Act 1945. Prior to that time, the only area in which apportionment was considered was under the Maritime Conventions Act 1911. This provision indicated that liability for damage or loss would be "in proportion to the degree in which each vessel was in fault". Assessments under this Act therefore required a considerable degree of value judgment based on specialist knowledge and experience. It was for this reason that the House of Lords...

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