Introduction to the framework and its operation

In order to establish accessory liability it is necessary to show that the following three elements are present:

1. (1) a primary wrong committed by a person other than the accessory;

2. (2) involvement, through conduct, by the accessory in that wrong; and

3. (3) a requisite mental state, generally established by reference to the accessory's knowledge of the primary wrongdoer's (PW's) wrong.

These three elements form the analytical framework of accessory liability in private law. Ultimately, the question of liability is a normative one: was A sufficiently involved in the primary wrong, with sufficient knowledge, such that he should be held liable for the primary wrong in light of the purposes and values of that primary wrong? Once A's liability is established, it is necessary to consider which defences may be available to A and which remedies are available against A.

The elements of the framework are not discrete; their doctrinal content and judicial application in individual cases are influenced by the content and significance of the other two elements. Of particular importance is the combination of the accessory's conduct and mental state that creates a ‘participation link’ to the primary wrong and justifies the accessory being liable for some or all of the consequences of the primary wrong. This ‘participation link’ is generally the most important factor in determining liability. The dynamic and relational operation of the framework is discussed further in [3.5].

The dynamic, relational operation of the three elements of the framework may be more accurately portrayed as in Figure 3.1, rather than as a list of discrete requirements.

The form of A's liability, that is, whether A's liability is for an independent wrong or for the same wrong as that committed by PW, is not an element of the analytical framework because it does not determine or influence A's liability in any principled way [2.3]. The three elements of accessory liability remain the same; it is only the means by which accessory liability is imposed that differs, and such differences can be explained by jurisdictional and historical factors. Hence, it is not necessary for the purposes of the framework to posit that A's liability is for the same primary wrong as that committed by PW or for a different wrong. Neither outcome precludes A's liability being accessorial.