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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.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.
PART I
FRAMEWORKS, ETHICS AND POLITICS
1. Apportionment in Private Law: Nothing, All, or Something in Between?
Kit Barker
2. Allocating Liability Among Multiple Responsible Causes: Principles, Rhetoric and Power
Richard W Wright
3. Full, No, or Partial Liability? That is the Question – Some Answers from a Civilian Perspective
Helmut Koziol
PART II
ORIGINATING DOCTRINES
4. Vicarious Liability: A Pailful of Slops and Other Hazards
Warren Swain
5. Accessories, Joint or Independent Liability and Apportionment
Joachim Dietrich
PART III
PLAINTIFF-DEFENDANT APPORTIONMENT
6. Contributory Negligence and Apportionment in Canadian Tort Law
Lewis Klar
7. Contributory Negligence and Professional Negligence: An Empirical Perspective
James Goudkamp and Donal Nolan
8. Allocating the Costs of Making Restitution: Change of Position
Ross Grantham
9. Certainty in Calculating Monetary Remedies for Breach of Fiduciary Duty
Simone Degeling
PART IV
APPORTIONMENT BETWEEN DEFENDANTS
10. Contribution Among Wrongdoers: Reducing the Risk of Contribution Recovery Shortfall and Other Issues
David Cheifetz
11. Reforming a Reform: Why Has It Been So Hard to Reform Proportionate Liability Reforms?
Barbara McDonald
12. Causation and Proportional Recovery
Rob Merkin and Jenny Steele
13. Justice Between Defendants: A New Zealand Note on (non) Law Reform
Geoff McLay
Unrivalled scholarship examining the fundamental doctrines and principles of private law.
This monograph series brings together in one place two types of book: works which examine in-depth the fundamental doctrines and principles of private law, and works which engage with the theoretical underpinnings of private law. The series thus aims to contribute to ever-evolving debates about the nature of private law such as problems of classification and taxonomy, remedies, the relationship with public law and the boundaries of private law generally.
The series includes, but is not confined to, works on contract, tort, unjust enrichment, equity, property and the conflict of laws, welcoming work which intersects with other fields of study to enable a deeper understanding of private law theory and practice.