In multi-author cases, the principle that each injured party is personally liable for any indivisible breach caused directly by its negligence has generally been expressed as „joint and several liability“. As many commentators have noted, the concept of „joint and several liability“ has sometimes caused confusion because the terminology has been used for a number of different situations. (See, for example, Prosser, Law of Torts (4th ed. 1971) §§ 46, 47, [20 Cal.3d 587] pp. 291-299; 1 Harper & James, Law of Torts (1956) § 10.1, pp. 692-709.) The terminology is derived from perpetrators acting together to commit an offence and, in this context, reflected the principle, both criminal and civil, that all members of a „conspiracy“ or partnership are equally responsible for the actions of each member in furthering such a conspiracy. Some of the unique problems that motorcyclists face on the road are: Although the Li principle is abstract logically reasonable and fair, it is generally impractical and leads to unpredictable and inconsistent results. The implementation of this principle requires judgment that is beyond the capacity of human judges and jurors. The point is easy to illustrate. If the first part of the accident drove 10 miles over the speed limit, the second 50 miles too far, it is clear that the second should suffer the lion`s share of the damage. But should he pay 55% of the loss, 95% or something in between? This question cannot be answered precisely, and people will not answer it consistently. But this is the simplest question we ask ourselves when comparing mistakes, because they are only apples.
If we add oranges to the comparison, there are no guidelines. If the first driver also drove under the influence of Jack Daniels, reasonable judges and jurors will not agree on who should bear the lion`s share of the loss, let alone the percentages. After all, when it comes to pure apples and oranges – one part accelerates, the other sends a stop signal – there are no signs, let alone guidelines, and when they act to promote the Li principle, reasonable judges and jurors can be expected to come to radically different conclusions. Fn. 7 Summary These cases were chosen to illustrate the different approaches of judges and to illustrate what can influence their decision-making process. Of course, they will deal with evidence of speed, observation and anticipation, safety distance, control and positioning of the road. But Arnot v Sprake and White v Kubas are particularly difficult for the motorcyclist. In fact, Arnot v.
Sprake is often used as an excuse for driver insurers to deny responsibility for incidents in curves on country roads. I have always tried to distinguish this case, and it has recently been used by NFU-appointed lawyers to deny responsibility for the role of their policyholder in a collision with a motorcyclist, Adam Russell, on Innerleithen in Peebles Road. In Dowling v. Dargue (1997), a car left a secondary road and entered a main road that wanted to turn right. The vehicles on the main road had stopped so that the car could perform its maneuver. A motorcyclist passed stationary traffic on the main road and struck the front driver`s door/fender of the car. The motorcyclist was found 80% guilty of driving on the wrong side of the road and in the zigzag zone of a pelican crossing. The motorist was held 20% responsible because he was driving faster than just going out. Passing a vehicle on the left (usually called a business) is allowed if the vehicle signals to turn right and there is enough space to do so, or if you are in a separate lane and the other vehicle is held up by traffic in front of you. In this case, WADA submits that by rejecting the all-or-nothing rule of contributory negligence and replacing it with one that merely reduces the compensation of an injured party for its fault in the settlement, the Li decision has in fact undermined the basis of the entire doctrine of joint and several liability applied to competing injured parties. In this context, AMA quotes the following passage from Finnegan v. Royal Realty Co.
(1950) 35 Cal. 2d 409, 433-434 [218 P.2d 17]: „Even if people do not act together, if the results produced by their actions are indivisible, each person is responsible for the whole. The reason for each individual`s responsibility for the overall consequences is that there is no basis for sharing damages, and the law refuses to allow an innocent plaintiff to suffer against a defendant. This responsibility is imposed when each cause is sufficient in itself and when each cause is necessary to achieve the result. (emphasis added.) WADA focuses on the judgment underlined, arguing that, according to Li, (1) there is a basis for apportioning damages, namely on a basis of comparative negligence, and (2) a plaintiff is no longer necessarily „innocent“ because Li allows a negligent plaintiff to recover damages. WADA asserts that, in view of these two factors, it is logically inconsistent to maintain the joint and several liability of the competing injured party according to Li.