Apologies for the very draft nature of this paper, and particularly the light citations in the current version.

Shared responsibility in civil liability sizing it upJenny Steele, University of York, UK

This paper aims to identify the nature of some instances of shared responsibility as they operate within civil liability, and particularly in relation to tort liability, and explore their implications.It is well known that responsibility is a term with many potential meanings which need exploration.[footnoteRef:2] The same is true of sharing. The paper focuses rather more on sharing than on responsibility, though of course the two cannot be entirely separated, and it is likely the approach to sharing adopted by the law will illuminate the types of responsibility in operation. The varieties of sharing identifiedfor these purposes are (a) sharing of responsibility in the sense of division between responsible parties; (b) sharing of responsibility in the sense that more than one person takes full responsibility for the same harm; and (c) sharing of responsibility in the sense of dispersal, as many take the burden otherwise suffered by a few. [2: HLA Hart, Varieties of Responsibility 1967 88 LQR 846.]

Doubtless many variations are possible. For example, (b) operates with the support of (a) in English law in that jointly liable tortfeasors are also severally liable, but may bring contribution proceedings against one another.[footnoteRef:3] There are well known controversies over whether (c) is any part of the law of tort. Of course it may raise a different form of responsibility, as well as a different form of sharing. But it would certainly seem to be an objective of the Road Traffic Act scheme of compulsory motor insurance, which operates to distribute the cost of those losses caused by negligence among all those paying motor premiums.This demonstrates the possibility that dispersal may operate on wrongs in particular rather than simply on all losses resulting from an activity. [3: Under the Civil Liability (Contribution) Act 1968, this is not confined to tortfeasors.]

Sharing of responsibility, in one sense or another, is a widespread and significant aspect of tort liability, despite a lack of emphasis upon it in general accounts (whether doctrinal or theoretical) of the law of tort. This lack of emphasis may arise because shared responsibility tends to operate beyond the preferred two-party model of most accounts of tort (with the exception of contributory negligence, which operates of course between claimant and defendant(s)). That is part of the issue to be explored. Or it may be because it deals primarily with liabilities rather than duties (primary obligations), on which most accounts focus. Liabilities are pecuniary. What can be captured in terms of money can be shared in the important sense of being divided,[footnoteRef:4] shifted, distributed, and dispersed. To what extent do notions of responsibility in tort law (which might be associated primarily with liability responsibility) reflect this? [4: George Simmel, The Philosophy of Money (1913), had it as one of the core properties of money that it is infinitely divisible. The influence of the money form on principles of liability (civil and criminal) has been underexplored: see Pat OMalley, The Currency of Justice (2009) and Campbell et al, The Currency of Freedom (2011) Social and Legal Studies.]

Sharing as division into sharesWhere civil liability is concerned, there may be an apparently obvious connection between sharing, and division.Some shared responsibility in the law of tort does indeed take the form of a division and sharing of losses and/ or liability. Intuitively this may seem appropriate. But how generally acceptable is this model?Part of the superficial appeal of sharing in the sense of division of responsibility where civil liability is concerned stems from the reparative goal of civil liabilities. This might be made more obvious by a contrast with criminal liability (so far as I understand it), where the existence of other responsible parties is unlikely to reduce the level of responsibility of any one such party. Doubtless this reflects the different purpose of liabilities in tort and crime, the former being designed to compensate or repair the claimant in respect of harm caused by the defendants (or defendants) wrong, the latter typically amounting to a sanction.We can represent this graphically in terms of different meanings of degrees of responsibility. While degrees of responsibility in criminal law may be represented in terms of a ladder reflecting the level of wrongdoing/ culpability, it looks as though tort liabilities in some circumstances are contemplated as a pie in which parties take responsibility for slices of one size or another. This is partly because the overall pie represents a totality, even if an artificial or conventional one[footnoteRef:5] this is the amount required to compensate or make reparation to the claimant.[footnoteRef:6] There is no overall total amount of criminal liability that needs allocating as a result of criminal activity of a number of parties. So far, this seems a suitable model for tort. [5: For example, the sum required may include an amount for non-pecuniary loss, rendered in money terms.] [6: In the Law Reform (Contributory Negligence) Act 1945, the court must record the total damages, and then apportion between the parties on a percentage basis. The first draft referred to the total liability to be shared, and the draftsman at a very late stage wanted to replace the reference to damages (a pecuniary sum), with a reference to damage (that which the sum seeks to represent). Apportionment depends on the existence of the former, a pecuniary sum. Outside contributory negligence, there remains some resistance to treating personal injury as pecuniary in precisely the same way as other forms of damage, though clearly pecuniary losses are part of the impact of pi. For example, a personal injury insurance policy is not an indemnity, and subrogation rights therefore do not operate for pi insurers.]

An approach based on divisionmakes sharing analogous to sharing out, of slices of responsibility (or more specifically, of liability reflecting degrees of responsibility relative to the other slices).In fact, tort law only adopts this form of sharing in limited circumstances. This is significant, because it has been proposed that there is some common thread of fairness to increasing emphasis on comparative negligence, and that this should be pressed further. This sort of sharing of responsibility (division into shares) was introduced to avoid harsh effects to claimants in the context of contributory negligence,[footnoteRef:7] and at around the same time in English law,[footnoteRef:8] to allow actions by one liable party (who has satisfied a claim) against others responsible for the same wrong. The first variation was for the benefit of claimants (though it is fair to ask about its actual effects); the second was designed not to impact upon claimants but to operate only between tortfeasors (and later, other wrongdoers). It can be defined as operating a principle of unjust enrichment or equity, which has no application to the faultless claimant. [7: The particular focus was on road traffic accidents.] [8: Note also the debate about similar reform proposals between Fleming James and Charles Gregory, the former objecting to contribution that it would be used in opposition to his preferred goal of optimal loss distribution, in (1940-41) 54 Harv L Rev 1156.]

Unfortunately, the existence of this sort of sharing of responsibility between responsible parties has inexorably led to argumentsthat there is one particular proportion of damage or damages[footnoteRef:9] - which is properly (or fairly) attributed to the fault of any particular defendant, and that courts determining tort claims involving multiple tortfeasors should be asked to determine what that proportion is.Defendants are asking to be liable only for their slice of a pie, where the owners of the other slices are not available. If D1s role in the harm relative to other parties at fault is 20%, then it is urged that only 20% of the damages (whatever their size) need to be paid by D1 even if D1 is the only defendant available to the claimant. This may happen for reasons of insolvency, inconvenience, lack of information, or culpability so far beyond negligence that it deprives the tortfeasor (thus the claimant) of insurance cover. The degree of responsibility compared to other wrongdoers (and it is up to D1 to establish who those wrongdoers are and to give evidence of their share of responsibility)[footnoteRef:10]on this model dictates the degrees of the circle through which Ds responsibility operates even if they are not present to share the pie. [9: This is more accurate, but I think it begins to express the problem. Damages are dependent on harm not just on wrongdoing and here we are not discussing cases where one defendant has caused some piece of harm, another defendant has caused another. We are discussing jointly caused harm of an indivisible nature.] [10: Supposing D2 to be insolvent, they will have little interest in combating the suggestion that they are at fault, nor the resources to do so.]

That has been presented as a mere extension of comparative negligence thinking as it has been overwhelmingly accepted across common law and civilian legal systems in relation to the claimants own fault and contribution between tortfeasors.[footnoteRef:11] It is therefore presented as, simply, fairer. Those who argue that this is unconvincing are correct.[footnoteRef:12] Many practical objections have been raised to proportionate liability of this sort, and the objections are both serious and real.[footnoteRef:13]But there are more basic problems with it, in terms of its approach to sharing responsibility.The arguments for its fairness in terms of proportionate (and in that specific sense, shared) responsibility rests onfalse analogy from one context to another. [11: See for example A Rogers, Fairness or Joint and Several Liability (2000) Torts Law Journal 1.] [12: See particularly R Wright, The Logic and Fairness of Joint and Several Liability (1992-3) 23 Memphis State University Law Review 45. ] [13: A full citation of all law reform bodies to consider proportionate liability would be extensive. Among valuable academic sources see for example B McDonald, Proportionate Liability in Australia: the Devil in the Detail (Syd Law School Research Paper 06/25); McDonald and Carter, The Lottery of Contractual Risk Allocation and Proportionate Liability (2010, 10/15); N Marcus, Phantom Parties and Other Practical Problems with the Attempted Abolition of Joint and Several Liability (2007-2008) 60 Ark L Rev 437. ]

The default position in the law of tort at common law is that parties sharing responsibility may each be fully accountable. That, indeed, appears to be the general conclusion to be drawn from principles of causation, and remoteness, in the law, and this is the very reason why contributory negligence before (and after) its reform raised such difficult questions. Under the common law rule there were cases where the defendant was held not to have caused the harm, so there was no liability; and other cases where the claimant was held not to have caused the harm, so there was full liability: the operating cause was one or the other. Today, causation is typically approached through the idea of remoteness, which asks only about the link between the defendants breach, and the loss suffered. It is particularly inclusive. It does not require the causal relationship in question to be compared with any other potential cause, and does not attribute degrees of causation.The idea of comparative negligence introduced ideas of relative responsibility embracing both causal roles, and degrees of fault, in determining who ought to take a share of the burden.Those ideas operate only between parties who are at fault and therefore, in terms of causal responsibility as it operates in the law, fully responsible.[footnoteRef:14] This is what links contributory negligence and contribution: they operate between causally responsible parties. The default rule is parallel responsibility. This could not operate properly in relation to contributory negligence, where one of the parties to be fully responsible is the claimant. It does operate however under joint and several liability. Contribution is an adjunct to this, and designed not to swallow the relational idea of the responsibility owed in respect of the claimants harm. [14: Wright, above, explains that this is as much the case for contributorily negligent claimants as tortfeasor defendants. They too are fully responsible for the harm, to the extent that they have caused it.]

Of the instances of shared responsibility examined so far, only proportionate liabilitydisrupts the usual causative sense of both parties being fully accountable for the loss.[footnoteRef:15] Contribution between tortfeasors on the other hand does not overturn this but merely adds to it a capacity for the causally responsible to share responsibility between themselves.Whatever the appropriateness of contributory negligence, it depends on the idea that the claimant is herself responsible and the pie of responsibility is to be divided between claimant and defendant(s). To create a situation in which the defendant is only responsible for one slice irrespective of the availability of other parties is to achieve something other than sharing it is to reduce the defendants liability to a particular size and shape defined not by the defendants responsibility to the claimant, but the defendants degree of culpability relative to others. [15: This has not been done in the United Kingdom. It has been achieved after much debate in Australian jurisdictions and in many states of the United States. It has been debated by law reform bodies in additional jurisdictions.]

These instances can be compared with the case of vicarious liability. Vicarious liability does not involve a division of responsibility, and is a case of two fully accountable parties.[footnoteRef:16]Here, the claimant can choose their defendant, and it is clear that most claimants (those who wish to secure a remedy) will choose the vicariously liable party.[footnoteRef:17] But there may be instances in which the law is also invited to choose between the parties. The vicariously liable party (or more likely, its insurer) stands in the shoes of the tortfeasor so far as the claimant is concerned, but can in principle, having compensated the claimant, step out of those shoes and pursue the primarily liable party for an indemnity.[footnoteRef:18]Again this illustrates that actionsbetween parties liable for harm raise different issues from actions between liable party, and innocent claimant. If the liability of one party is purely vicarious that party has breached no duty there is no basis for division. The only division would be a de facto one, if the tortfeasor was good only for part of the sum required. [16: It is considered as an instance of shared responsibility by P Cane, Responsibility in Law and Morality (Hart, 2002).] [17: There are just a few claimants who will bring the action for other reasons against the individual. This may be disapproved of by the court.] [18: Most notoriously in Lister v Romford Ice, a case won by the insurer but with the consequence of an Inter-Departmental Committee and subsequent agreement between employers liability insurers to deal with the issues. This is explored later. Legislation in Australia makes it impossible.]

The liability of the vicariously liable party might appear to be liability without responsibility in the usual sense, of responsibility for ones own actions.[footnoteRef:19] On the other hand, it has been pointed out that it could be seen in terms of relational activity responsibility: taking responsibility for the outcomes of ones activities so far as these fall on others.[footnoteRef:20]Where the vicariously liable party pursues the primarily liable party,the responsibility of the parties is of two different forms, and the law may select the tortfeasor as in turn responsible to the vicariously liable party. This could appear to give priority to one form of responsibility (fault based) over another (which may be activity based, or distributive, depending on ones view of the nature of vicarious liability). To the extent that the action against the employee (or equivalent) is brought by the vicariously liable partys insurer, one argument sometimes advanced in favour of this process of subrogation is that it places liability on the party at fault, thus furthering a supposed goal of the law of tort. (It is not so obvious that this is actually a goal of the law of tort).[footnoteRef:21] [19: For this reason there have been some attempts to rescue vicarious liability by interpreting it as actually personal responsibility: the tort itself is attributed to the vicariously liable party. I take the view that this disrupts an important distinction between personal and secondary liability which operates particularly clearly in relation to the insurance of such liabilities, since it helps to establish the boundaries within which distribution (dispersal) of such liabilities is thought legitimate: forthcoming in Merkin and Steele, Insurance and the Law of Obligations.] [20: Cane, Responsibility in Law and Morality, 177.] [21: It could equally be responded that torts goal is to achieve reparation of wrongs through liability responsibility on the part of those in breach of duties, which may well be strict. On this approach, the emphasis on greater fault is not inherent to tort law but interestingly a subsequent question about where the liabilities thus created should end up.]

We will return to this issue.Generally, vicarious liability involves shared responsibility in the sense of coexistence of responsibility. It also shows that the coexistence may operate in relation to the claimant but not necessarily in relation to the responsible parties between themselves.In summary, we have seen two forms of shared responsibility in a sense requiring division, operating in different ways. A supposedly simple common denominator between the first and second (proportionality) has been pressed too far. In some jurisdictions a completely different form of partial responsibility has been created out of the idea of shared responsibility in its slice of pie form, though not for all sorts of harm. Partial responsibility is at odds with the notions of responsibility that operate in the common law.[footnoteRef:22]Only the proportionate form of contributory negligence gives any credence to its acceptability. But contributory negligence depends on showing that the defendant has discharged its full responsibility to the claimant. The unrecoverable share does not fall to the claimant de facto but is allocated to him or her on the basis of responsibility (with all the problems this entails). Vicarious liability does not involve division, but parallel responsibility. In principle the relative positions of the two responsible parties between themselves might indicate a hierarchy of types of responsibility; but that is not necessarily the most compelling way of reading the situation. We should move on before returning to this. [22: I should perhaps explain that this is quite different from the issues of proof of causation controversially determined in Barker v Corus to involve liability for risks of harm where risks of harm alone could be established.]

This does not exhaust the kinds of shared responsibility which might be in operation, or desirable. Dispersal is also a form of (wide) sharing. It is clearly recognisable as a social goal. Is it relevant to tort?Sharing or shifting: InsuranceOn a practical level, the impact of shared responsibility is affected by the fact that defendants are typically insured or otherwise worth suing, and claimants in many instances (particularly, many instances of personal injury) are not.[footnoteRef:23] So the impact of responsibility-sharing in the contributory negligence sense is that the effects of torts are distributed only up to the point where claimant responsibility kicks in. If sharing of responsibility is capable of having a different, more socially oriented meaning which nevertheless includes the impacts of torts (wrongs), then the shared responsibility of contributory negligence actually sets limits to the sharing of responsibility in the sense that the burdens of wrongs are dispersed.[footnoteRef:24]Here we encounter a further idea of responsibility-sharing. This form of responsibility sharing is based on wide dispersal. There will be some resistance, I anticipate, to seeing this in terms of responsibility. It is of course typically associated with insurance. [23: Even where a pi victim is insured, there has been reluctance to regard this as an indemnity akin to other forms of insurance. ] [24: This is one of the ways in which maritime collisions provided a poor model for reform of the law relating to personal injury. First party marine insurance was the historic norm and insurance of liabilities created more difficulties.]

The general perception of insurance both among tort scholars, and much more broadly, has historically been that it is a means of distributing losses throughout a pool. Because of the need for diversification, in fact losses are distributed through insurance far beyond like risk pools this is not uniquely a feature of social insurance but also of insurance markets. Where loss-spreading (or dispersal) is embraced as a social policy goal for example, through national insurance and related schemes it may be more readily accepted as an instance of shared responsibility. The many take on the responsibility of shouldering the burdens of the few by paying their share of premium (or tax). This is unrelated to fault on the part of the many, but may still entail responsibility (to take a share of expense). But the same is true in areas closely related to tort. Not carrying motor insurance is a more heinous irresponsibility than driving negligently. It triggers criminal liability where mere negligence in driving would not. All that having been said, I would like to ask whether dispersal and distribution (sharing) are really the essence of insurance as it operates in the law of obligations. In some ways, the nature and impact of shared responsibility in the senses visited above is best understood by realising that insurance can have a quite contrary influence in litigation.Private insurance, and insurers, play a very significant role in litigation and in influencing party arrangements. It can be argued though that the immediate role of insurance, and the goal of much behaviour both of insurers and of others, is to shift losses rather than distribute them. Parties may seek to find an effective way of shifting losses to insurers by placingduties withassured parties;[footnoteRef:25] insurers on the other hand may seek to shift losses either onto other insured parties, or (more seriously perhaps) onto uninsured parties, in which case they are not distributed.[footnoteRef:26] The full extent of such issues is hidden from view in some respects (for example because insurers will or indeed must - litigate on their own account in the name of their assured). The important point is that the existence of loss shifting behaviour can be at odds with the sharing of responsibility in the sense of its dispersal, and the existence of multiple parties each of whom might be said to be responsible for loss through the operation of the law of tort does not necessarily lead to the dispersal of responsibility. Furthermore, the division of liabilities can operate in order to reduce the amount of loss that is dispersed. Sharing in one sense may undermine sharing in another. [25: A subrogated insurer has no greater rights than its assured, and this is therefore the best route to defeating subrogation, and thereby the costs of double insurance, within contractual arrangements.] [26: The capacity of parties to contract around the location of risk, and (bluntly) to ensure it is covered by insurance, is compromised by the introduction of proportionate liability into construction contracts in particular, as insurers may treat liabilities produced by contracting out as outside the reach of the policy: see further Hayford, Proportionate Liability Its Impact on Contractual Risk Allocation (2010) 26 BCL 11. It cannot be overstated how important the location of duties to insure is in English construction contracts: see for example John Hunt Demolition v ASME Engineering Ltd [2007] EWHC 1507. This could be seen in terms of a series of moves to try to avoid insurers desire to shift some losses outside the reach of insurance.]

Contributory negligenceThe reform of contributory negligence from total to proportionate rule has been a significant influence in the extension of shared responsibility in the sense of division referred to above. Study of this area holds significant lessons (and, I agree, puzzles).My own initial interest in shared responsibility stems from research into the process through which the English (and Scottish) law of contributory negligence took its proportionate form in 1945.[footnoteRef:27] The reforming statute expressly makes relative responsibility of claimant and defendant(s) the basis for reducing damages as the court thinks just and equitable. The legislation therefore includes what might be a relatively rare statutory use of responsibility as the basis for a legal rule. Sharing responsibility is associated with a reduction in the damages which would otherwise be awarded. [27: J Steele, Law Reform (Contributory Negligence) Act 1945: Collisions of a Different Sort. The reference in the subtitle to collisions indicates the (almost total) importance of road traffic accidents in prompting the reform and the rather inappropriate reliance on the law relating to marine collisions in framing the initial draft legislation. More metaphorically it also indicates the collision between lawyers law and more political tort reform with the emergence of a general scheme of national insurance and repeal of the Workmens Compensation Acts at the end of the second world war. ]

One of the key issues which arises for any exploration of shared responsibility in the context of civil liability is the relationship between responsibility, and liability.[footnoteRef:28] Another is whether responsibility is genuinely a core legal term or building block,[footnoteRef:29] rather than a short-hand expression of potentially rather varied reasoning processes.[footnoteRef:30] In both respects, it seems particularly pertinent that the first draft of the UKs reforming statute mandated the division of liability between two or more parties whose fault had contributed to damage, and was squarely based on the law developed for maritime collisions both by the Admiralty courts and internationally;[footnoteRef:31] but that it was transformed for the purposes of the enacted version into a provision requiring the reduction of damages on the basis of relative responsibility.[footnoteRef:32] The reform therefore made the transition from liability-sharing (familiar in maritime collisions where the issues were dealt with through consolidated cross claims and almost inevitably both or all parties had suffered some damage), to relative responsibility for the damage to one party only the likely liability of that party to others did not enter into it. [28: See for example Cane, Responsibility in Law and Morality, chapter 1.] [29: Cane, above, proposes that it is.] [30: HLA Hart, Varieties of Responsibility.] [31: Particularly through the Brussels Convention, which formed the basis (in the UK) of the provisions of the Maritime Conventions Act 1911 used as a model by the Law Revision Committee, and (virtually word for word) the first draft of the reforming statute).] [32: The process through which this came about is interesting but outside the remit of this paper. It relates to the more metaphorical form of collision referred to in n. 1, and particularly Lord Simons appearance before the Monckton Committee on The Alternative Remedy (ie, Tort, in the context of national insurance).]

In the course of researching the origin of the English legislation, it struck me as particularly interesting both that the maritime rules were not themselves applicable to cases of personal injury, though personal injury was the primary concern behind the reforms; and that the main, or even sole, rationale for the recommended reform was that the maritime rule (liability sharing) operated more fairly than the common law rule (total bar). There really was not much analysis of the nature of the new provision, in terms of where it placed the burden of loss. Indeed the likely impact on litigation and on the behaviour of defendants was swept aside, when it was raised as an issue.Among the observations emerging from the research which have relevance to understanding the nature of shared responsibility in civil liability, are the following:1. The reform of contributory negligence, from total to partial, was not an isolated piece of law reform. The same law reform body worked throughout the 1930s to modernise legal doctrines, dealing with dead ends reached by the common law. It recommended the first contribution legislation relating to tortfeasors, and reform of the rules relating to frustrated contracts (defining where losses should lie).[footnoteRef:33]These reforms had in common an emphasis on division of losses and liabilities and (in that sense) sharing.[footnoteRef:34] [33: P. Mitchell, FibrosaSpolkaAkcyjna v Fairbairn Lawson Combe, C. Mitchell and P. Mitchell (eds), Landmark Cases on the Law of Restitution (Hart Publishing, 2006).] [34: Sharing out?]

2. The Law Revision Committee was dominated by commercial lawyers and drew its ideas on division (slicing and sharing) of liability largely from commercial law. Maritime law was a particular influence not only in relation to contributory negligence, but also in relation to frustrated contracts and contribution between tortfeasors. It seems plausible that this was significant for the emphasis in these reforms on liabilities (for commercial parties tend to plan and contract around risks and may therefore emphasise liabilities); and particularly on pecuniary division of liabilities.

3. The ideas of the Committee on how to share losses were certainly not bereft of a sense of fairness. But the content of what is fair is hard to pin down in fact on its own, it is a potentially unstable basis for reform.[footnoteRef:35] This tends to be obscured by general agreement on the unfairness, harshness, even viciousness,[footnoteRef:36] of denying compensation under the old common law rule on contributory negligence.The lottery of all or nothing reflected courts judgment as to legal cause. Fairness may look different in different contexts. The particular approach of commercial parties to riskis not fully reflected in, for example, the relationship of pedestrian and motorist, or worker and employer. Particularly pertinent is the exclusion of personal injuries from the maritime rule.It became clear that maritime collisions and injuries at work, for example, raise markedly different issues. [35: Lord Simon was the Lord Chancellor responsible for securing the legislation (though not a member of the Committee that proposed it). He encapsulated the purpose of the reform in terms of fair play for the common wayfarer (an idea he was inclined to fall back on when the going got tough). Note also Tilbury, Fairness Indeed (on the proposed introduction of proportionate liability for joint tortfeasors in Australia).] [36: Vicious is the word used by Tony Weir, An Introduction to the Law of Tort.]

4. Questions of causation are as we have seen heavily implicated in shared responsibility. It may be the case that prevailing causation ideas were part of the problem which led to the total defence of contributory negligence. But this is not universally accepted.[footnoteRef:37]Alternatively, ideas of legal or proximate cause were certainly deployed, and may even have been developed, in order to avoid the sting of contributory negligence in a range of cases.[footnoteRef:38]It is perfectly clear that the judges involved in the legislative reform of contributory negligence took it for granted that principles of legal or proximate cause would continue to be available to them to filter out the application of the defence to some claims. Just as contributory negligence sometimes did not constitute a complete bar to claims before 1945, where the claimants fault was not found to be a proximate cause of the injury,[footnoteRef:39] so also the reformers thought the need to show that the fault of both parties had contributed to the injury would mean they could continue not to apply any reduction at all in a range of cases where they felt responsibility for the injury was entirely with one party rather than the other. In principle that cannot be done under the 1945 legislation by appeal to responsibility alone[footnoteRef:40]only if responsibility is parcelled as a causative idea can it operate in this way. In practice, the reform has helped to weaken the grip of proximate cause. Shades of grey have become more prevalent than the reformers intended, partly in reliance on their reform. [37: The Law Revision Committee thought it was a product of the rigidity brought about through the form of pleadings.] [38: It was partly because courts were making use of this opportunity, I concluded, that there was no discussion of workers claim in the Law Revision Committees Report on Contributory Negligence. The matter was being dealt with by minimising the application of the doctrine, treating the employees fault as an operating cause in only exceptional cases. In fact, this thread of case law continues today.] [39: Davies v Mann, explained as correct in a maritime case (The Boy Andrew) in 1948 by Lord Simon himself, though without accepting the last opportunity rule.] [40: Though it seems Lord Hoffmann may have done this in Reeves.]

5. On the other hand, there has also been reaction to this trend, and total rejection of liability on the basis of claimant responsibility (refusal to share responsibility, or to impose liability, or to distribute losses through liability backed by insurance) has bubbled up in other ways: through the rejection of duties of care (for example in cases of recreational risk-taking across different areas of law);[footnoteRef:41] and in the extension of ex turpicausa(illegality) as a defence in tort. For this reason too, it is not clear that comparative negligence is really as prevalent as is sometimes suggested. The relationship between contributory negligence, and these other aspects of responsibility in civil liability, has been raised, but not fully debated. [41: Examples can be found in relation to Occupiers Liability; Animals Liability; and (for example) scouting.]

Between tortfeasors: shared or divided responsibility?As already noted, the first provision for contribution between tortfeasors in English law was introduced in the decade before reform of contributory negligence, on the basis of proposals from the same Committee. Contributory negligence was initially thought to be so close to this as to require a provision explaining the connection of the two; but this is because contributory negligence was itself initially modelled on liability sharing rather than damages reduction. Like contributory negligence, contribution does not inherently challenge the idea that causal responsibility is as a matter of law undivided according to degrees. While causation of a single harm is not divisible, damages are. The fairest results will be reached if tortfeasors are each liable, and then take steps to share the resulting liability. Proportionate liability reduces that liability.Are we in any better position following intervening discussion to understand why proportionate liability is not a simple extension of the thinking behind both contributory negligence, and contribution?In Australia, the main push for proportionate liability comes from the exposure of professional defendants to claims making them wholly liable for failing to note the more culpable actions of others, particularly in the realm of corporate wrongdoing. This is capable of being an attractive argument because the professional here is recognisably an easy target. Only breach of the duty of care (carelessness) needs to be shown; the losses may be large; and (crucially) the professional carries liability insurance. The need to avoid concentration of liability on these assured parties fits with prevailing opinion.It would appear that the argument for proportionate liability emanated primarily from insurers. For practical reasons, the majority of parties held liable in damages are insured, or large enough to pay without insurance. But equally, the majority of parties held liable in damages are negligent, or in breach of a strict duty. Deliberate wrongdoing, other than in the case of motor insurance, will fall outside the terms of insurance policies. The share of responsibility taken up by deliberate wrongdoing is uninsured and therefore generally unavailable to compensate claimants. Insurers who succeed in bringing about proportionate liability succeed in shifting responsibility to uninsured defendants and therefore reduce the amount of liability to be dealt with through insurance. Unmet losses fall to claimants. Meanwhile the liability of their assureds is not capped at a level thought to capture their contribution to the debacle (rather like the criminal liability ladder). It purports to be a relevant proportion. A way of sharing out responsibility and placing liabilities with those who, in a rough and ready way, most deserve it, is being used to define the proportion of damages for which a single defendant is liable. But in the absence of other available defendants, it makes no sense to talk of a proportion at all. Sharing in the sense of division (and slicing) depends on having someone to share with. That person is not the claimant. This is not a proportionate share, because it is not sharing at all.These factors lead me to agree with those who argue that the relevant focus for consideration in these cases is the primary obligation or duty, not the capacity of money damages to be divided. So it becomes particularly important that the duty of care is not simply defined as a duty to be careful. It has size and shape, and it is owed to particular claimants. What duty is owed by these professionals, to whom, and why? Duties are nowadays recognised as restricted in ambit and require specific justification, especially where they are positive duties to prevent harm. They are imposed only where justified. Alterations to liability may be a relatively soft target compared to reform of the basic principles of duty and causation,[footnoteRef:42] but in this instance the alleged fairness of sharing (ie not sharing) is entirely misleading. The extension of duties of care in negligence creates the problem of additional parties, if indeed it is a problem. Whether it is a problem or not is largely a question of what the duties should be, rather than of how the liability should be shared.[footnoteRef:43] [42: Notice the possibility that contributory negligence reform has had an accidental impact on principles of causation.] [43: This brings to mind Lord Mances dissenting judgment in Moore Stephens v Stone & Rolls, in the different context of fraud attributed to a company, and the question whether this barred an action against negligent auditors. In the view of Lord Mance, the dangers of one-man companies are so great that there are additional reasons for imposing duties on auditors to exercise care to guard against fraud. A more general but related point is that auditor liability may be dependent on assumptions of responsibility to particular people (as in the text above).]

Vicarious liability: hierarchy of responsibility or not?The essential issues in relation to vicarious liability were set out in the introductory section. Here two parties are simultaneously potentially liable and share responsibility in this sense. Their responsibility may be of different types, but this does not disadvantage the claimant. In fact, if there is serious misconduct, it may very well be to the advantage of the claimant that the responsibility of the vicariously liable party is purely secondary. It may then stand a chance of falling within insurance cover.Between the responsible parties however, there appears to be a hierarchy of responsibility in that the vicariously liable party can in principle seek an indemnity from the primarily responsible party, at least if that party was at fault. This is generally very unlikely to occur. The usual understanding is that the reasons are largely practical, and political. But there is an alternative reading, which is that courts have the resources they need to control such actions through attention to the parties own contractual arrangements, and should take seriously the parties allocation of risk in the form of insurance. This is different from seeking the best distributor of the risk, and so it does not seek a reversal of hierarchy in responsibility in which distributive responsibility trumps fault/ breach of personal duty. Rather, it brings out the generally significant issue of how parties themselves deal with responsibility, and how these arrangements may need protecting from the risk shifting activities of insurers. The most celebrated case,[footnoteRef:44]Lister v Romford Ice& Cold Storage, is a case where an insurer acted against the sharing of responsibility in either the vicarious liability sense, or the dispersal sense, preferring to place that responsibility with the party it considered to be primarily at fault. The majority of the House of Lords assisted it with this, appearing to consider fault to be more important a factor than what it dismissed as an argument based on implied contract. But it seems entirely realistic to argue, as the minority argued, that no employed lorry driver would contract on the basis that the compulsory insurance which covers all drivers, and which is required by law to be provided by employers and to cover the employee, will not protect him in the event of carelessness. [44: Among tort lawyers, that is. It was not celebrated by the Ministry of Labour, which feared industrial unrest; by the ILO, which was seeking to protect employed drivers; or indeed the insurance industry. The insurer behind the subrogated claim was not an EL insurer. There was already an agreement between such insurers not to bring proceedings in such cases. The insurer was seen as a rogue, more than an enforcer of the purposes of the law of tort. An improved agreement followed the report of an Inter-Departmental Committee. There is probably something wrong with a case which requires this sort of activity, and in this instance it was not a case of legal principle against political reality. The principles to determine the case differently were available.]

The general point being made here is that the structure of responsibility sometimes cannot be assessed without attention to the role of insurance in the sense that it is a part of the parties arrangements. The role of the insurer in this case was the polar opposite of the received impression of insurance, as dispersing losses. The court thought that it was assisting a core function of the law of tort, by placing responsibility with a party at fault rather than a merely vicariously liable party. But the responsibility here was shared and this is not necessarily a core function of the law of tort. Both parties were responsible and the questions could properly be dealt with in terms of location of responsibility in relation to risk of liability between the two. In other words, Lister has less to do with tort law than is generally thought. Perhaps so too does division of responsibility.Concluding discussionReturning to the start, what sort of approach to responsibility is revealed by these variations of sharing? Generally speaking tort law operates with a view of responsibility in which each of those who breach duties causing harm are fully responsible. The significant variation of this is achieved in contributory negligence cases was for the benefit of claimants and responded to an issue of difficulty where causation was concerned. Similar ideas operate in relation to contribution between tortfeasors, but the transformation involved in importing such ideas into the situation between D1 and C has been understated by proponents (and perhaps even by those rejecting the proposals). The intuitive appeal of divided shares is conditional and should not be allowed to dominate. It is certainly not a logical consequence of the focus of tort law on reparation of the claimant. Beyond this, and whatever the relationship between the goals of tort and the social and economic goal of dispersal of losses and responsibility, we should be alert to exercises in liability shifting disguised as exercises in the perfection of the goals of tort. To that extent, the role of insurance in litigation is highly pertinent to understanding the nature of responsibility sharing in operation.

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