Apportionment in Private Law: Nothing, All, or Something in Between?

Abstract

In modern private law, there has been a clear trend in recent years away from 'all or nothing' solutions to questions of legal responsibility toward solutions which attempt to divide responsibility for harm between multiple parties. This shift is in some instances the product of more subtle intuitions about relative moral responsibility, but it is sometimes also the product of raw politics and/or pressure from powerful lobbying groups.

This paper provides a critical overview of a variety of different legal systems for apportioning civil liability between multiple parties who are responsible for the same harm, interrogating those systems from the point of view of legal doctrine, ethics and politics.

It calls for more refined differentiation between the different systems and challenges the propriety of some of the solutions recently offered. Some of these, it argues, have produced great complexity and uncertainty without provably advancing any tangible social ends and whilst considerably reducing the law's moral integrity.

Keywords: apportinment, contributory negligence, proportionate liability, contribution, joint liability, several liability