Apportionment of Liability and the Intentional Torts: The Time is Right for Change

In a tort action based solely on the Defendant's wrongful intentional conduct, both parties have been, until recently, at a decided disadvantage. There could be no apportionment of liability between the Plaintiff and Defendant. Fault concepts were seen in absolute terms. Either the Defendant was totally liable for the damages or he was not liable at all. Principles of apportionment of liability generally were not seen as applicable to the intentional torts. Thus, a Plaintiff's contributory fault was irrelevant in determining the Defendant's liability. Likewise, provocation was not a 'defence' and did not, in all jurisdictions, always reduce compensatory damages. Similarly for a Plaintiff the spectre was total success or total failure. The defences of consent and self-defence were absolute with no loss-sharing. Thus, the law had developed a simple proposition: either a Plaintiff or Defendant, but never both, were liable for injuries sustained.