Apportioning Civil Liability

This round-table symposium will address the way in which private law systems address the apportionment of civil liabilities between multiple parties responsible for the same harm. This is a confused and increasingly complex field. During the course of the day, participants will consider not just those inception doctrines, such as vicarious liability, via which joint liability comes to be imposed upon multiple defendants in the first place, but also the complex mechanisms via which responsibility is then divided between them; and divided between defendants and plaintiffs who contributed to the same harm. The aim is to formulate proposals for a rational system for the sharing and apportionment of civil liability that will address the very remaining complexities and uncertainties of current regimes of distribution. Participants and attendees include judges, leading practitioners and members of the academy.   

Five papers will be presented on the day by a group of leading experts, including (in alphabetic order) Associate Professor James Goudkamp (Oxford), Professor Helmut Koziol (European Centre of Tort and Insurance Law, Vienna); Professor Barbara McDonald (University of Sydney), Professor Donal Nolan (Oxford) and Professor Warren Swain (University of Auckland).

Paper Abstracts:

Full, No, or Partial Liability – That is the Question.  Some Answers from a Civilian Perspective

Professor Helmut Koziol

This paper will interrogate the apportionment of liability from a civilian perspective, providing key insights into the way in which these issues are solved outside of common law systems.  It will examine the way in which the basic rule of full liability for harm is broken in all continental European legal systems in cases involving multiple defendants, multiple harmful events and multiple plaintiffs. In the process, it will examine rules governing the liability of several independent tortfeasors, joint tortfeasors, rules of alternative causation, the doctrine of loss of chance, alternative tortfeasors and victims and the rules relating to cumulative and superseding causation.

Reforming a Reform: Why is Proportionate Liability so Hard to Reform?

Professor Barbara McDonald

Proportionate liability became part of the landscape of civil liability for certain wrongs as a result of reforms to federal, state and territory legislation around Australia in 2002-2004, despite concern by law reform bodies.  Yet the legislation is far from uniform, creating its own complexity in a federal system and for those entities operating across state boundaries, and efforts to make it so have been unsuccessful. This paper will look at the roadblocks to consensus. Two issues in particular are contentious: first, should parties be able to contract out of proportionate liability (and if not what does a prohibition on contracting out really mean) and secondly, to what claims should proportionate liability apply?  The chapter will also consider how recent cases in Australia support the arguments on fairness and unfairness that were aired before the regime was introduced. 

Proportionate Liability: A Leaking Ship?

Richard Douglas QC

The Proportionate liability system implemented in Australia were intended to remedy to the perceived ills of solidary (joint and several or ‘deep pocket’) liability.  The enactment thereof, at federal and state levels, however, is littered with exceptions to invocation - express and implied.  Is this a function of poor drafting, or a reach for fairness?

Vicarious Liability: A Pailful of Slops and Other Hazards

Professor Warren Swain

Just as today, historically it was also true that liability in tort law was grounded in the idea of personal responsibility for one’s own actions. Vicarious liability doesn’t fit with this idea. This was why the Romans were forced to fit liability for another into the awkward categories of quasi-delict and noxal liability. At the same time there are good reasons why vicarious liability is necessary. The Common law had the same problem but differently expressed. The scope of vicarious liability was quite vague. One explanation is the critical role played by juries in tort litigation and the intricacies of pleading and the impact of the forms of action. Even with the articulation of a test in which masters were liable for the acts of a servant the application of the test is far from easy to pin down. The law remains unsatisfactory in key respects. The fact that vicarious liability has always being deeply bound up with the demands of public policy in various guises means that a lack of coherence is perhaps inevitable. It is certainly historically grounded.               

Contributory Negligence and Professional Negligence: An Empirical Perspective

Professor Donal Nolan and Dr James Goudkamp

There are many causes of the deficiencies in the present understanding regarding the contributory negligence doctrine. Two important contributing factors are that the doctrine is often thought, wrongly, to be confined to ‘accident’ cases and the other is the almost total lack of quantitative recent research regarding this area of the law. In this paper, we turn attention to an important predominantly non-accident context in which the law of contributory negligence is often relevant, namely, negligence-based claims against professionals. The overarching goal is to improve understanding of the doctrine as it applies in this context. We seek to realise that goal by employing quantitative techniques with a view to uncovering how the doctrine is actually applied by judges in this setting.

Speaker Biographies (in alphabetical order):

Professor Kit Barker MA (Oxon) BCL is Professor of Private Law at the University of Queensland. He is co-author with Professor Peter Cane, Professor Mark Lunney and Francis Trindade of The Law of Torts in Australia (4^th ed, OUP, 2012) and with Professor Ross Grantham of Unjust Enrichment  (2^nd ed, Lexis Nexis Butterworths, 2017, forthcoming). He is also assistant editor of the Torts Law Journal. He has written extensively on the law of negligence, with a particular focus on liability for pure economic loss and has recently written (with Prof Jenny Steele) on the topic of comparative systems of proportionate liability: ‘Drifting towards Proportionate Liability: Ethics and Pragmatics’ (2015) 74 Cambridge Law Journal, 49-77.

Richard Douglas QC is a practicing barrister at Callinan Chambers, Brisbane and former president of the Queensland Bar Association. He was appointed Senior Counsel in and for the State of Queensland in 1998 and Queen’s Council in 2013. IN his practice, he has developed particular expertise in statutory proportionate liability systems in cases involving pure economic loss and property damage. He is joint author of   Douglas, Mullins and Grant Annotated Civil Liability Legislation Queensland (4^th ed, 2016) and principal contributor to Civil Liability Australia, a national loose-leaf and electronic LexisNexis service treating the Ipp civil liability legislation of the Commonwealth, states and territories.

Dr James Goudkamp is Associate Professor of Law in the University of Oxford and a Fellow of Keble College, Oxford. He is an expert in tort law and in joint author of the 19th edition of Winfield & Jolowicz on Tort Law. He is also author of Tort Law Defences (Hart Publishing, Oxford, 2013) and an editor of numerous edited collections with Hart Publishing focusing on defence principles in private law. He is widely regarded as the UK’s leading expert on the law of contributory negligence and has published extensively on this and other associated topics.  He has recently published a seminar empirical study of court decision in this field in the Modern Law Review.

Professor Helmut Koziol is Vice-Director of the European Centre of Tort and Insurance Law and former Professor of the University of Vienna.  He is also an honorary Fellow of the Institute for European Tort Law, and Honorary Professor at the University of Graz. He is an expert in comparative tort law, having over 450 publications to his name over a period of some 50 years.

Professor Barbara McDonald is a Professor at the Faculty of Law at the University of Sydney and a Fellow at the Australian Academy of Law. She has served as a Commissioner of the Australian Law Reform Commission in Sydney. She is the leading contributor on the topic of Proportionate Liability in the Australian jurisdiction, having written extensively on the legislative reforms since their inception in the early years of the C21st. She is also a member of the editorial board of the Torts Law Journal and a contributor of three chapters to the new edition of Fleming’s Law of Torts (9^th ed). In 2006 she addressed the South Wales Supreme Court Annual Conference on the impact of legislative tort reform. She has written numerous articles in the field of torts and the impact of tort reform, published in the Journal of Contract Law, the Sydney Law Review, the Australian Bar Review, the Torts Law Journal, and the Commercial Law Quarterly, as well as in international legal journals.

Professor Donal Nolan is Professor of Private Law in the University of Oxford and Francis Reynolds and Clarendon Fellow and Tutor in Law at Worcester College, Oxford. He was educated at Brasenose College, Oxford (BA and BCL) and was previously a Lecturer in Law at King's College London. He has taught tort, contract, international trade law, restitution and commercial law, and has been a Visiting Professor in the Universities of Florida and Trento. He is currently a Senior Fellow of the University of Melbourne, and a member of the International Advisory Panel for the American Law Institute's planned Restatement of the Law Fourth, Property. He is also a member of the editorial committee of the Modern Law Review. He has published widely in the field of tort law and at the interface between tort and public law.

Professor Warren Swain is a Professor of Law at the University of Auckland and at the TC Beirne School of Law, The University of Queensland and a Fellow of the Australian Centre of Private Law. He was previously a Stipendiary Lecturer in Law at Hertford College, Oxford and Oxford University Law Faculty, Lecturer in Law at the University of Birmingham and Lecturer in Law at Durham University. He is author of The Law of Contract 1670-1870 (Cambridge University Press, Cambridge 2014) and a co-editor of The Law of Misstatements (Oxford, Hart, 2015). He has has published in the fields of private law and legal history in leading international journals including Legal Studies, The Journal of Legal History, The Journal of Contract Law, The Sydney Law Review and the University of New South Wales Law Journal