ABSTRACT
One aspect of the legislation giving the court power to reduce damages in tort for contributory negligence is that it in effect allows the court to apportion losses between two parties who have both been guilty of wrongs.121 Where there is more than one person potentially liable to a victim another piece of legislation allows the defendant who has had to pay full compensation to the victim to recover contribution from any other person liable or potentially liable in respect of the same damage.122 For a claimant injured by several tortfeasors can sue any one of them for full damages. And this contribution – or indeed complete indemnity123 – will be recoverable ‘whatever the legal basis of ... liability, whether tort, breach of contract, breach of trust or otherwise’.124 The point to notice here, however, is that liability to pay contribution is not actually part of the law of tort even although it may well be influenced by some of its policies; it is a statutory debt claim based on the principle of unjust enrichment (cf Chapter 11 § 2). Contribution, in other words, belongs in the category of restitution (Chapter 11 § 7(b)). Accordingly, the ‘just and equitable’ basis upon which the court decides the contribution question, while obviously based upon the defendant’s share of the ‘responsibility for the damage in question’,125 ought also, in principle at least, to be judged in the context of loss spreading and insurance generally.126 Whether it will be is another question.127
