This article is written by Bhavana Kakad pursuing SEBI Grade A Legal Officers’ Test Prep Course  from LawSikho.

This article has been published by Anshi Mudgal.

Introduction

The general law of tort is very complex, especially where there is more than one individual responsible for loss or damage. The most challenging aspect is to distribute fault among the guilty parties. Some jurisdictions subscribe to the doctrine of comparative negligence, whereby the parties will be held accountable for their proportionate fault. For instance, if one driver is assigned 70% fault and the other 30%, damages will be apportioned proportionately. Or, in some jurisdictions, contributory negligence exists, a harsher rule where even a small amount of fault will preclude a party from recovering damages.

But how do judges decide on a precise percentage of fault? And what if several parties are involved in some other way in causing an accident? Let us discover the nuances of these doctrines and how they govern legal liability.

What is apportionment in tort law?

Plain and simple, apportionment in tort law refers to the division of liability among several parties who caused injury. The extent of how much they have to pay the injured party as damages is based on the division of liability. Apportionment spreads the burden evenly, so no one pays more (or less) than they ought to.

Historical background of apportionment

The principle of apportionment in tort law has changed across the centuries to accommodate changing notions of fairness and justice in apportioning liability.

Early common law (before the 19th century) 

Contributory negligence was the dominant rule in the earliest times, which regulated that if the plaintiff was even partially responsible for the loss, he/she was entirely barred from recovering damages. This extreme doctrine originated in English common law and was widely adopted in the earliest times.

19th-century reforms 

Legislatures and courts realised the unfairness of bare contributory negligence. The Law Reform (Contributory Negligence) Act, 1945, in the UK introduced fairer equity by enabling the courts to apportion fault and limit damages rather than automatically rejecting claims.

20th century

Comparative Negligence became popular when the majority of jurisdictions, such as the United States, Australia, and Canada, used comparative negligence, where damages were allocated proportionally to the fault percentage of both sides. This was a step towards more equitable verdicts and permitting the plaintiffs to recover a portion of their damages even when they had been negligent in causing their injuries.

Modern developments (21st century) 

Modified or pure comparative negligence is applied most often in legal systems today to achieve more proportionate liability apportionment. Joint and several liability is also imposed by courts in multi-defendant cases in order to enable injured individuals to recover full damages against any liable defendant while dispensing justice through contribution actions between defendants.

Various landmark cases have been significant in shaping the direction of comparative fault. A case in point was the case of Li v. Yellow Cab Co. (1975), where the California Supreme Court adopted the rule of comparative negligence and rejected the strict contributory negligence rule. Similarly, in McIntyre v. Balentine (1992), the Tennessee Supreme Court discarded contributory negligence for a reformed version of comparative negligence, where plaintiffs would be able to recover damages if they were less than 50% negligent. These cases and many others like them have framed modern tort law by promoting greater fairness in the allocation of liability.

Why is apportionment important?

Prevents unjust liability 

Without apportionment, a party may be held liable in full for damages if there were several parties at fault for the injury. This would lead to unjust judgments where a very minor culpable party will be held fully liable financially.

Assigns responsibility equitably 

Apportionment makes the assignment of responsibility by the actual extent of fault of each party. In case there are several parties at fault, all are held responsible for his or her share, i.e., a more equitable judicial system.

Guarantees justice in compensation 

Proper allocation of fault does not under- or over-compensate. The victim is compensated an amount equal to the proportionate fault of the parties at fault so that all pay no more and no less than justice demands.

Motivates fair settlements 

Where liability is well established, parties will settle in place of litigating for years. This is litigation-efficient and ensures that compensation is being awarded effectively.

Reduces legal conflicts and uncertainty 

Apportionment offers a channel whereby courts can apportion fault and award damages. Using common principles of law removes conflict regarding who should pay what, resulting in faster and fairer settlements in tort actions.

Types of apportionment in tort law

Apportionment is classified into two broad forms:

Contributory negligence

This is an absolute rule where, if the plaintiff (party injured) is even slightly negligent in inflicting their harm, they may be completely precluded from recovery of damages. Although this rule has been significantly superseded in most jurisdictions, it remains the law in some. For instance, Alabama and North Carolina in America still adhere to contributory negligence, where if a pedestrian is jaywalking and struck by a speeding vehicle, they are excluded from recovering any damages. By comparison, the majority of jurisdictions, such as Canada and Germany, are comparative negligence states, wherein the compensation for a plaintiff is scaled down by his degree of fault, e.g., if a bicycle rider does not signal while turning and gets struck by a somewhat speeding automobile, both of them may be at fault, and damages will accordingly be split.

Comparative negligence

It’s a more equitable system. Rather than not paying the damages, the court determines the fault of both and pays them in proportion. There are two types of comparative negligence:

• Pure comparative negligence: The plaintiff is paid even if he’s at fault to the maximum limit of 99%. He, however, loses his share for the error.
• Modified comparative negligence: The plaintiff can only recover if his fault is below a specified percentage (ordinarily 50% or 51%).

Joint and several liability: who pays what?

In some cases, several parties end up inflicting harm on one. This leads us to learn about joint and several liability. It is where each one of the defendants can be held responsible for the whole damage, irrespective of their percentage of fault. But then they can recover contributions from other offending parties.

• Joint liability example: Suppose two contractors construct a faulty bridge together that collapses and injures pedestrians. Both of the contractors are liable for the overall damages, no matter what their share of fault is.
• Several liability example: In a three-car accident where one driver is 50% at fault, another 30%, and the third 20%, each driver is liable only for his or her proportionate share of damages, and the plaintiff has to recover from each individually.

Determining the plaintiff’s fault in apportionment

In establishing liability in tort law, not only will the defendant’s duty be taken into account, but also whether the plaintiff was negligent in causing harm to themselves. The apportionment doctrine is applied in situations where the injured party could have been negligent, careless, or reckless and therefore contributed to the harm for which they are being compensated. Courts balance the fault of the plaintiff in determining how much it infringes upon or to what extent it infringes upon their right to recover damages.

Comparative negligence 

The court assigns percentages of fault to both. The recovery of the plaintiff is decreased by their percentage of fault (e.g., 20% fault = recovery of 80% of damages).

Contributory negligence 

A stricter policy where even minimal fault (as little as 1%) will entirely bar the plaintiff from being awarded any damages is largely believed to be unjust to injured victims.

Courts attempt to locate the fault of the plaintiff in the division by considering many factors, such as:

Pre-accident conduct of the plaintiff 

In the case of Butterfield v. Forrester (1809), the plaintiff was hurt when riding at high speed on a horse and struck an obstacle set by the defendant. The court ruled that the plaintiff’s careless riding caused the accident, precluding recovery under contributory negligence.

Not adhering to rules or regulations 

In the case of Davies v. Mann (1842), a donkey was left alone on the road, and the defendant, who was driving carelessly, ran over the donkey. The court favoured the plaintiff using the “last clear chance” doctrine, as the defendant had a chance to prevent the accident.

How the plaintiff’s act caused harm 

In the case of Froom v. Butcher (1976), the plaintiff was injured in a road accident when she was not wearing a seatbelt. The damages were reduced by the court on the basis that the plaintiff’s non-use of a seatbelt had contributed to the extent of the injuries.

Expert witness role in apportionment cases

Expert witnesses are instrumental in determining fault by giving technical opinions on accident reconstruction, medical evaluation of injuries, and adherence to safety standards. Their testimony assists courts in measuring negligence percentages and determining causation, thus providing a just distribution of liability.

Application of apportionment in different areas of law

Personal injury cases 

Courts allocate fault to multiple parties in accidents like car accidents or slip-and-fall accidents and reduce payment proportionally to the extent each is at fault. Eg. In a car accident where one driver was speeding (70% fault) and the other ran a red light (30% fault), each pays damages accordingly.

Medical malpractice 

Where there are multiple health professionals involved in the fault leading to patient injury, liability is allocated proportionally to their extent of fault. E.g. if a surgeon makes an error (60% fault) and a nurse fails to monitor vital signs (40% fault), liability is divided

Product liability 

When the defective product causes harm, all distributors, sellers, and manufacturers are held liable. E.g. A defective airbag injures a driver; the manufacturer, distributor, and retailer share responsibility.

Disputes of employment 

Where the dispute is for the work injury, apportionment decides employer, employee, or third-party liability. E.g. A worker is injured due to faulty equipment; liability is split between the employer (lack of maintenance) and the equipment supplier

Contractual disputes

Where there are negligence actions in contracts, the courts decide the contribution by both sides to the breach or damage done. E.g. A builder delivers a faulty house, but the buyer also delays payment; both share fault for damages.

Comparative analysis of apportionment in different jurisdictions

United States 

Follower of comparative negligence, where damages are a proportion of the plaintiff’s fault. Pure comparative negligence (permitted even if the plaintiff is a majority at fault) is followed in a minority of states, and modified comparative negligence (excluding recovery when the plaintiff’s fault is above a specific benchmark, i.e., 50%) is followed in other states.

United Kingdom 

It depends on the Law Reform (Contributory Negligence) Act, 1945, under which courts can remit damages proportionately on the basis of the fault of the plaintiff. Contributory negligence does not exclude recovery, however.

India 

Follows contributory negligence on the general principles of the common law, usually limiting damages in proportion to the fault of the plaintiff. In the case of motor vehicle and industrial accidents, courts take into account both parties’ behavioural factors as well as statutory control.

Australia & Canada 

Both have comparative negligence, and the fault is distributed by the courts and proportionately lessens damages. Joint and several liability exists in Canada, and a plaintiff can obtain full damages from one of the defendants and can seek contributions from other defendants. Australia also has the same system with judicial discretion incorporated into the apportionment.

Challenges in apportionment

Although apportionment ensures fairness, liability percentages are not always straightforward to determine. Some of the common problems are:

Determination of who caused greater harm 

In multi-negligent party accidents, it is difficult to quantify who caused more harm. For example, in a pileup where multiple cars are involved, it is difficult to establish whose negligence led to the chain reaction and requires expert evidence.

Cases where a party is insolvent or untraceable 

If a liable party is insolvent or untraceable, the onus could unfairly lie on the other defendants. Under joint and several liability systems, a single defendant could be required to make the full payment, even if they were a minor perpetrator.

Variation of the apportionment of laws from state to state 

States have varying doctrines of negligence. Some states use pure comparative negligence (which allows recovery even in cases where the plaintiff is 99% liable), while other states use modified comparative or contributory rules of negligence. This variance causes varying legal outcomes for identical cases depending on where the case is filed.

Real-life cases and precedents

Though apportionment ensures justice, determining liability percentages is not always straightforward. Some common challenges include:

Determination of who caused greater harm

In accidents involving multiple negligent parties, it can be difficult to quantify who contributed more. For example, in March v. Stramare (1991), an incorrectly parked truck and a negligent driver both played a role in a collision. The court applied comparative negligence, holding both parties liable in proportion to their fault.

Cases involving one party being insolvent or untraceable 

If a liable party is bankrupt or cannot be found, the burden may unfairly shift to the remaining defendants. In Cempel v. Harrison Hot Springs (1997), a municipality and a property owner were both found liable for property damage due to negligent drainage maintenance. Had one party been unable to pay, the other might have shouldered a disproportionate burden.

Variation in apportionment laws across states

Different jurisdictions follow different negligence doctrines. For example, in the U.S., Liebeck v. McDonald’s (1994) applied comparative negligence, assigning 80% fault to McDonald’s and 20% to the injured customer, reducing her compensation accordingly. In India, K.S.R.T.C v. Krishna Bai (2020) saw a motorcyclist and a bus driver both held liable, with the motorcyclist’s compensation reduced by 30%.

Conclusion

Apportionment in the law of torts provides that liability needs to be apportioned to the offending parties. Either under joint and several liability, or comparative or contributory negligence, the principle is always to bring about justice and fairness. Interpreting such provisions serves to enlighten individuals and corporations regarding legal grievances.

So the next time you hear of a case of comparative fault, you’ll know just exactly how the law calculates who gets paid and how much. Justice in compensation is the reason tort law is so very important a component of the court process!

Frequently Asked Questions (FAQs) 

What is apportionment in tort cases?

Apportionment of the law of tort ensures that damages are paid back by apportioning it to the parties’ fault. It never entitles the plaintiff to be compensated for all the damage in case he contributed to his injury, and makes the defendants pay just the amount of their fault.

How does comparative negligence offer a fairer approach than contributory negligence?

Comparative negligence enables a plaintiff to recover where she is comparatively at fault, but her award of damages is to be reduced proportionately by their relative degree of fault.

The more restrictive of the two rules is the rule of contributory negligence, in which even if the plaintiff is at fault (e.g., 1%) will not be allowed to recover damages.

What occurs when the plaintiff is more than 50% at fault?

In a 50% or 51% pure comparative modified bar state, the over-50%-or-over-51%-at-fault plaintiff does not recover. The plaintiff recovers in a pure comparative negligence state, and fault reduces damages.

Who decides the percentage of fault in a case?

Fault percentages are generally decided by the judge or jury after balancing case facts. Faults are distributed based on witness, expert, and law testimony.

References

• https://pro.bloomberglaw.com/insights/litigation/contributory-negligence-and-apportionment-of-fault/
• https://www.ali.org/publications/restatement-law-third/torts-apportionment-liability
• https://library.fiveable.me/key-terms/torts/apportionment-of-liability
• https://matthewminer.name/law/outlines/1L/2nd%2BSemester/LAW%2B512-001%2B%E2%80%93%2BTorts%2BII/Apportionment%2Bof%2BDamages
• https://colorado-lawfirm.com/glossary/apportionment/
• https://tort.laws.com/joint-tortfeasors/apportionment-of-damages
• https://corporate.findlaw.com/litigation-disputes/apportionment-of-liability.html

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