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1% Liability:
Fact or Fiction of Apportionment in Tort Law?
By
Lee Akazaki
What
does 1% liability look like? Lawyers are called upon to answer
this question every time they advise clients in cases involving
remote liability but substantial damages. In multiparty tort
litigation involving catastrophic personal injuries or large
property losses, counsel acting for institutional defendants
or defendants with liability insurance worry over a principle
of tort law taught to all law students in first year: All it
takes is a finding of 1% liability for the defendant to be found
100% liable to the plaintiff. Perhaps, to a “deep pocket”
defendant, there is a cruel injustice to the rule. To a plaintiff,
it may hold out a 99% chance of success in a civil action. But
are these views well-founded? How good is advice from a lawyer
that 1% liability may result in a substantial payout?
It is not easy to attribute fault anyone who could be only “1%
at fault,” especially if the consequence is having to
pay out potentially up to 100% of the damages award. Modern
legal adjudication shrinks from turning the courtroom into a
theatre of cruelty. The number “1” is simply too
close to zero and too far from one hundred that it appears fairer
to dismiss a claim for damages than to grant it. But one is
not equal to zero, and any logic which makes it so is arbitrary.
In Rushton v. Turner Bros. Asbestos Co. Ltd., [1960]1 W.L.R.
96, at 102, a judgment of the Manchester Assizes Court, Mr.
Justice Ashworth equated five and zero in the following words:
“I am not prepared to give the plaintiff something,
for example, as little as 5 per cent for damages which he
could recover. I do not decide it on the ground that 5 per
cent is the same as nought because others might have a different
view. I take the view that in this case, looked at fairly,
the plaintiff is the sole author of his own misfortune.”
What is not clear
from this judgment is the extent to which it relied on an unreported
decision of the English Court of Appeal, Johnson v. Tennant
Bros. Ltd., dated November 19, 1954, cited immediately prior
to the above passage. According to text writers, that decision
stands for the proposition that small percentages of apportionment
ought not to be made, and contribution of less than 10% is to
be disregarded.
The 10% rule attributed to Johnson should now be considered
incorrect. The apportionment exercise occurs only once it is
found that there are two or more parties at fault for the damage.
Apportionment is not part of the initial determination of fault
and to impose a quantitative threshold would be a misreading
of the statute. It is also hard to agree with the court in Rushton
that 5% is de minimis in cases involving larger claims such
as catastrophic personal injuries. In a case worth $5 million,
for example, there is nothing de minimis about an award of $250,000
plus costs, especially compared to dismissal with costs in favour
of the defendant.
At the other end of the spectrum, some courts have attempted
to superimpose a minimum apportionment based on moral disapproval
of the tortfeasor’s conduct. Mr. Justice Hughes, in Conrad
v. Crawford, [1972] 1 O.R. 134 (H.C.J.), at 146, stated:
“As a practical
matter it is difficult to see how in any case of contributory
negligence in a situation like this a higher apportionment
than 50% against the plaintiff could possibly be made in the
face of a finding of gross negligence on the part of the defendant.”
Perhaps unfairly,
this statement has been cited and followed for the proposition
that a finding of gross negligence requires that a person be
held at least 50% at fault. Had legislatures intended to insert
this gloss into the apportionment statutes such as the Negligence
Act, R.S.O. 1990, Chap. N.1, they would have done so. Mr. Justice
Hughes' judgment certainly expressed a visceral and common-sense
appreciation of the facts that were before him, but no more
than that.
Apportionment legislation was enacted in part to reform the
common law rule that there could be no contribution among tortfeasors
and, in part, to abolish contributory negligence as a full defence
to a plaintiff’s claim. As Mr. Justice Major wrote in
Athey v. Leonati et al. (1996), 140 D.L.R. (4th) 235 (S.C.C.),
at 240-41, concerning apportionment between defendants:
“Each defendant
remains fully liable to the plaintiff for the injury, since
each was a cause of the injury. The apportionment legislation
simply permits defendants to seek contribution and indemnity
from one another, according to the degree of responsibility
for the injury.”
In tort law, negligence
is determined by a breach of a duty of care. The degree of opprobrium
which the tortfeasor’s conduct attracts, while a factor
in punitive damage awards, is irrelevant to the principle of
compensation.
The “minimum 50% liability for gross negligence”
rule not only defies principles of reasonable statutory interpretation
but also crumbles under the lightest degree of logical scrutiny:
What if more than two persons are found grossly negligent? In
Athey, the Supreme Court of Canada presented the issue of apportionment
in terms of causation and contribution to the loss or injury,
not in terms of the degree of carelessness. It follows that
a grossly negligent party may be found less responsible for
the plaintiff’s injuries than a simply negligent one.
For example, a “joyrider” or heavily impaired driver
may be found guilty of gross negligence but an accident reconstruction
might show that his automobile figured less in the cause of
an plaintiff’s injury than that of another motorist at
the scene, say, who was guilty only of an unauthorized left
turn. In the House of Lords judgment in Reeves v. Comrs. of
Police of the Metropolis, [1999] 3 W.L.R. 363, [1999] H.L.J.
No. 33, Lord Hoffman wrote, at para. 20:
“[W]hat
section 1 requires the court to apportion is not merely degrees
of carelessness but ‘responsibility’ and that
an assessment of responsibility must take into account the
policy of the rule, such as the Factories Acts, by which liability
is imposed. A person may be responsible although he has not
been careless at all, as in the case of breach of an absolute
statutory duty. And he may have been careless without being
responsible, as in the case of ‘acts of inattention’
by workmen.”
Lord Hoffman shines a light on the need to uphold harmony in
the law of negligence between the common-law determination of
fault and the statutory exercise of apportionment, for without
this harmony it is easy to foresee injustices in the civil process.
Apportionment is a finding of fact, not law. The statute does
not fetter the trier of fact. In theory, therefore, there is
no rule that a party cannot be held 1% at fault. But how about
0.5%?
In Canada, an apportionment of 1% either by a judge or a jury
based on contested facts is either rare or unreported. A finding
of 5%, however, can be made more readily. If one surveys Canadian
court decisions, the reports in which the 1% apportionment is
mentioned fall into two categories. In the first, the percentage
is mentioned as part of the court’s restatement of the
law that where two defendants’ apportionments are found
to be 99% and 1% respectively, they both are liable 100% to
the plaintiff. However, no such actual apportionment is made
in the judgment. In the second, the parties agreed in advance
that one group of defendants is 99% at fault and the other 1%.
This pre-trial agreement on the facts amounts to a legal fiction,
likely to allow a finding of liability to the plaintiff without
resulting in a meaningful cross-claim between co-defendants.
None of these decisions in the Canadian jurisprudence are of
help in illustrating what type of facts are required for a finding
of fault where a party is nevertheless apportioned only a 1%
contribution among guilty defendants.
In the United States, a search of appellate cases does reveal
that apportionment findings of 1% can be made on the evidence,
although the case law is certainly not abundant. In those cases,
the courts tend to use the language of proximate cause to express
the principle of apportionment. Proximity is not viewed in terms
of closeness to events, the “chain of causation”
or any notion of “last clear chance.” Rather, apportionment
is based on responsibility for having created the peril. In
cases where parties are found 1% at fault, the minimally guilty
parties are the final or incidental agents in almost inevitable
accidents caused by the other tortfeasors’ more dominant
negligence.
Minimal apportionment of liability, however, is not a denial
of a real fault, which is also a precondition to apportionment
in American tort law. This conclusion is seen in judgments reviewing
jury verdicts in which 1% apportionments were made. In Burton
v. R. J. Reynolds Tobacco Co. et al., 208 F. Supp. 2d 1187 (Dist.
Kansas, 2002), the facts offered a mathematically elegant illustration
of the nexus between apportionment and causation that also provokes
one to think of more complex permutations. (It may be fitting
that such a case comes from tobacco litigation, where, unlike
cases involving car crashes or mechanical failures, causation
has historically taken on Scopes Monkey Trial proportions.)
The plaintiff Burton alleged that he would never have taken
up smoking had he been warned of the risks of addiction and
peripheral vascular disease, and brought suit against R.J. Reynolds
Tobacco Company, Inc., the manufacturer of “Camel”
brand cigarettes, and American Tobacco Company, Inc., the manufacturer
of the “Lucky Strike” brand. He obtained a jury
verdict for damages against the two tobacco manufacturers. The
jury then concluded that R.J. Reynolds was 99% at fault and
that American was 1% at fault. The evidence at trial was that
the plaintiff smoked Lucky Strike cigarettes only when Camel
cigarettes were not available. There were stretches of years
when he did not smoke Lucky Strike cigarettes at all. In the
logic of the verdict, the plaintiff must have smoked one Lucky
Strike to every ninety-nine Camel cigarettes.
What if the 1% of all cigarettes consumed were at the beginning
of the chronology? (If the smoker switched preference from one
brand to another before he became addicted.) Should there be
a finding of liability to the plaintiff, in such a case? Was
the switching of brands indicative of addiction before he switched?
(Which could support an apportionment of 99% against American
and 1% against R.J. Reynolds, if addition was the dominant cause.)
If the plaintiff had smoked cigarettes manufactured by more
than 100 manufacturers, could we not conceive of apportionment
of less than 1% to any one? For counsel, each one of these questions,
however playful they may appear, may be a legitimate and serious
line of inquiry in an appropriate civil action.
The court in Burton, mindful not to supplant the role of the
jury, could only determine whether the jury’s apportionment
could be supported in the evidence and in the law. In upholding
the verdict, the court employed a "substantial factor"
test in the U.S. Restatement of Torts, which test
“denote[s] the fact that defendant's conduct has such
an effect in producing the harm as to lead reasonable men
to regard it as a cause, using that word in the popular sense,
in which there lurks the idea of responsibility, rather than
the so?called 'philosophic sense,' which includes every one
of the great number of events without which any happening
[the injury] would not have occurred."
1% is therefore not de minimis at all, but in fact "substantial."
This approach is consistent with the principle that before even
a 1% apportionment can be made, there must be liability, in
the absolute and not in the relative sense. In mathematical
terms, liability to the plaintiff is binary, not a percentage:
the answer is one or it is zero: a defendant is liable to the
plaintiff or he is not.
Conclusions
~ Can There Be Any?
Apportionment in tort arises from a very practical problem in
civil litigation: the existence of two or more parties at fault
for the plaintiff’s injury or loss, including the plaintiff.
(In practice, a plaintiff’s own 1% contributory negligence
would usually have little effect on the outcome.) The object
of this paper has been to explore what is commonly employed
by lawyers and judges as a rhetorical device in the law, and
to test its limits. The infrequency by which 1% apportionments
are reported in the case law must tell us that the operative
principles of apportionment must be rough-hewn. Rarely do facts
arise that require one to express a party's contribution to
the loss down to a single percentage point. We must always remember
that there is no such thing as 1% liability to the plaintiff.
The percentage is not synonymous with the risk faced by a target
or deep-pocket defendant against whom the case is particularly
weak in terms of evidence. Such a defendant may face a more
substantial apportionment, if negligence is proved at trial.
But litigants rightly want to predict the outcome where the
party is so almost not guilty of contributing to the plaintiff’s
damages that he may be apportioned 1% in relation to other tortfeasors.
Describing the continuum in terms of breach of duty and causation
may be of help. Usually it is difficult to draw a line between
a weak case of substantial contribution to damages and a strong
case of minimal contribution. But in cases involving grave consequences
to the parties at trial, this is the burden that counsel must
bear. Clients should expect their lawyers to exercise more than
a modicum of judgment and thoughtful consideration. Given the
actual rarity of a 1% finding of liability, to say that a party
may be found liable on this basis may be a statement of law
but it is not advice unless a more pragmatic assessment is also
offered.
2005
© R. Lee Akazaki, of the Ontario Bar ('90), is certified
by the Law Society of Upper Canada as a Specialist in Civil
Litigation and is a member of the Law Society’s Barrister
Advisory Group. He practices with Gilbertson Davis Emerson LLP.
1
R Levinson, Contributory Negligence (U.K., Emis Prof. Publishing,
2002), p. 18; Cheifetz, Apportionment of Fault in Tort (Toronto:
Canada Law Book, 1981), p. 105, referring to an edition of Salmond
on Torts.
2 Salmond has more recently
stated that there is no 10% rule, “although in practice
minute percentages are rare”: Salmond and Heuston on the
Law of Torts (London: Sweet & Maxwell, 1996), p. 492.
3 Pitts v. Hunt, [1991] 1
Q.B. 24 (Eng. C.A.), [1990] E.W.J. No. 576 at para. 43.
4 Cheifetz, supra, p. 105;
Priestly v. Gilbert; State Farm Mutual Automobile Insurance
Co., Third Party, [1972] 3 O.R. 501 (H.C.J.), at 505; Tomlinson
v. Harrison et al., [1972] 1 O.R. 670 (H.C.J.), at 679-80.
5 Followed by the English
Court of Appeal in Toole v. Bolton Metropolitan Borough Council,
[2002] E.W.J. No. 1790, at para. 15.
6 Negligence Act, R.S.O. 1990, Chap. N.1, s. 6; Fridman, The
Law of Torts in Canada, p. 383.
7 Sherritt v. Thorold Concrete
Block Co. et al., [1954] O.W.N. 535 (C.A.).
8 Mason v. Canada, [1973]
F.C.J. No. 200 (T.D.), at para. 8; Slaunwhite v. Little, [1998]
N.S.J.NO. 176 (S.C.),
at para. 4; Fink v. McMaster (1987), 58 O.R. (2d) 401 (C.A.),
at 403.
9 Brennan v. Singh, [2000] B.C.J. No. 1026 (B.C.C.A.), at para.
31.
10 Clay Rural Water System Inc. v. One Call Systems, Inc., 30
Fed. Appx. 675 (8th Cir. 2002).; Purnell v. Norned Shipping
B.V., 801 F.2d 152 (3d Cir. 1986); Tokio Marine & Fire Ins.
Co. v. M/V Flora, [1998] U.S. Dist. Lexis 13254
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