Drifting Towards Proportionate Liability: Ethics and Pragmatics
(2015) 74 Cambridge Law Journal 49
21 Pages Posted: 1 Apr 2015
Date Written: June 30, 2014
Abstract
This article investigates an apparent shift in common law jurisdictions away from the traditional principle of joint and several liability towards proportionate liability in cases involving multiple wrongdoers. This shift is often presented by defendants and legislators as a logical extension of the ethics of comparative (contributory) negligence doctrine. Here we deny any ethical connection between the two doctrines. We also suggest that there is in no good, generalisable ethical or pragmatic argument in favour of proportionate liability in its own right and caution jurisdictions currently considering reform of the joint and several liability rule against leaping to any such assumption.
Keywords: proportionate liability, joint and several liability, contributory negligence, comparative negligence
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