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 up

Jenny 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.1 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.
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.2 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.
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
1 HLA Hart, Varieties of Responsibility 1967 88 LQR 846.
2 Under the Civil Liability (Contribution) Act 1968, this is not confined to
tortfeasors.
1

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,3 shifted, distributed, and dispersed. To
what extent do notions of responsibility in tort law (which might be
associated primarily with liability responsibility) reflect this?
Sharing as division into shares
Where 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 one4
this is the amount required to compensate or make reparation to the
3 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.
4 For example, the sum required may include an amount for non-pecuniary loss,
rendered in money terms.
2

claimant.5 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.
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,6 and at around the same time in English law,7 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.
Unfortunately, the existence of this sort of sharing of responsibility
between responsible parties has inexorably led to argumentsthat there is

5 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.
6 The particular focus was on road traffic accidents.
7 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.
3

one particular proportion of damage or damages8 - 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)9on this model dictates the degrees of the circle through
which Ds responsibility operates even if they are not present to share
the pie.
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.10 It is therefore presented as, simply,
fairer. Those who argue that this is unconvincing are correct. 11 Many
practical objections have been raised to proportionate liability of this sort,
and the objections are both serious and real.12But 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.
8 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.
9 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.
10 See for example A Rogers, Fairness or Joint and Several Liability (2000) Torts
Law Journal 1.
11 See particularly R Wright, The Logic and Fairness of Joint and Several
Liability (1992-3) 23 Memphis State University Law Review 45.
4

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.13 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.
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.14 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
12 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.
13 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.
5

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.
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.15Here, 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.16 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.17Again 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.
The liability of the vicariously liable party might appear to be liability
without responsibility in the usual sense, of responsibility for ones own
actions.18 On the other hand, it has been pointed out that it could be seen
in terms of relational activity responsibility: taking responsibility for the
14 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.
15 It is considered as an instance of shared responsibility by P Cane,
Responsibility in Law and Morality (Hart, 2002).
16 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.
17 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.
6

outcomes of ones activities so far as these fall on others.19Where 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).20
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.21Only 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
18 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.
19Cane, Responsibility in Law and Morality, 177.
20 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.
7

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.
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: Insurance
On 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.22 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.23Here 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.
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
21 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.
22 Even where a pi victim is insured, there has been reluctance to regard this as
an indemnity akin to other forms of insurance.
23 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.
8

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;24 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. 25
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
24 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.
25 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.
9

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.

Contributory negligence
The 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 1945.26 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.
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.27 Another is whether responsibility is
genuinely a core legal term or building block,28 rather than a short-hand
expression of potentially rather varied reasoning processes.29 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
26 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.
27 See for example Cane, Responsibility in Law and Morality, chapter 1.
28 Cane, above, proposes that it is.
29 HLA Hart, Varieties of Responsibility.
10

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;30 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.31 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.
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

30 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).
31 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).
11

lie).32These reforms had in common an emphasis on division of

losses and liabilities and (in that sense) sharing.33
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.34 This tends to be obscured by general agreement
on the unfairness, harshness, even viciousness,35 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.

32P. Mitchell, FibrosaSpolkaAkcyjna v Fairbairn Lawson Combe, C. Mitchell and

P. Mitchell (eds), Landmark Cases on the Law of Restitution (Hart Publishing,
2006).
33 Sharing out?
34 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).
35 Vicious is the word used by Tony Weir, An Introduction to the Law of Tort.
12

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.36Alternatively, 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.37It 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,38 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 alone39only 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.
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
36 The Law Revision Committee thought it was a product of the rigidity brought
about through the form of pleadings.
37 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.
38Davies 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.
39 Though it seems Lord Hoffmann may have done this in Reeves.
13

ways: through the rejection of duties of care (for example in cases of

recreational risk-taking across different areas of law);40 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.
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
40 Examples can be found in relation to Occupiers Liability; Animals Liability;
and (for example) scouting.
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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,41 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.42
41 Notice the possibility that contributory negligence reform has had an
accidental impact on principles of causation.
42 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).
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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,43Lister 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
43 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.
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required by law to be provided by employers and to cover the employee,

will not protect him in the event of carelessness.
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 discussion
Returning 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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