Apportionment in Private Law

by Kit Barker (Editor), Ross Grantham (Editor)

Overview

This collection of essays investigates the way in which modern private law apportions responsibility between multiple parties who are (or may be) responsible for the same legal event. It examines both doctrines and principles that share responsibility between plaintiffs and defendants, on the one hand, and between multiple defendants, on the other.

The doctrines examined include those 'originating' doctrines which operate to create shared liabilities in the first place (such as vicarious and accessorial liability); and, more centrally, those doctrines that operate to distribute the liabilities and responsibilities so created. These include the doctrine of contributory (comparative) negligence, joint and several (solidary) liability, contribution, reimbursement, and 'proportionate' liability, as well as defences and principles of equitable 'allowance' that permit both losses and gains to be shared between parties to civil proceedings. The work also considers the principles which apportion liability between multiple defendants and insurers in cases in which the cause, or timing, of a particular loss is hard to determine.

The contributions to this volume offer important perspectives on the law in the UK, USA, Canada, Australia and New Zealand, as well as a number of civilian jurisdictions. They explicate the main rules and trends and offer critical insights on the growth and distribution of shared responsibilities from a number of different perspectives - historical, comparative, empirical, doctrinal and philosophical.

Product Details

ISBN-13:	9781509944941
Publisher:	Bloomsbury Academic
Publication date:	02/25/2021
Series:	Hart Studies in Private Law
Pages:	392
Sales rank:	772,853
Product dimensions:	6.10(w) x 9.10(h) x 0.80(d)

About the Author

Kit Barker is Professor of Law and Ross Grantham is Professor of Commercial Law, both at the TC Beirne School of Law, University of Queensland, Australia.

Table of Contents

Preface v

Acknowledgements vii

Table of Cases xi

Table of Legislation xxix

List of Contributors xxxiii

Part I Frameworks, Ethics and Politics

1 Apportionment in Private Law: Nothing, All, or Something in Between? Kit Barker 3

2 Allocating Liability Among Multiple Responsible Causes: Principles, Rhetoric and Power Richard W Wright 35

3 Full, No, or Partial Liability? That is the Question - Some Answers from a Civilian Perspective Helmut Koziol 63

Part II Originating Doctrines

4 Vicarious Liability: A Pailful of Slops and Other Hazards Warren Swain 89

5 Accessories, Joint or Independent Liability and Apportionment Joachim Dietrich 111

Part III Plaintiff-Defendant Apportionment

6 Contributory Negligence and Apportionment in Canadian Tort Law Lewis Klar 141

7 Contributory Negligence and Professional Negligence: An Empirical Perspective James Goudkamp Donal Nolan 161

8 Allocating the Costs of Making Restitution: Change of Position Ross Grantham 197

9 Certainty in Calculating Monetary Remedies for Breach of Fiduciary Duty Simone Degeling 221

Part IV Apportionment between Defendants

10 Contribution Among Wrongdoers: Reducing the Risk of Contribution Recovery Shortfall and Other Issues David Cheifetz 243

11 Reforming a Reform: Why Has It Been So Hard to Reform Proportionate Liability Reforms? Barbara McDonald 267

12 Causation and Proportional Recovery Rob Merkin Jenny Steele 293

13 Justice Between Defendants: A New Zealand Note on (non) Law Reform Geoff McLay 321

Index 343