1.
Sometimes, same damage is caused to one person by several wrongdoers and they may be either independent tortfeasors or joint-tortfeasors.
When a person causes the damage by independent wrongful acts; they are called as independent tortfeasors whereas joint-tortfeasors cause the same damage to fulfil their common ambition. To be joint-tortfeasors, it is essential that the persons should have the same mental level or intent. In the case, The Koursk,1 the Court of Appeal distinguished in between independent and joint-tortfeasors as-"Persons are said to be joint-tortfeasors when their respective shares in the commission of the tort are done in furtherance of a common design but mere similarity of design on the part of independent actors causing independent damage is not enough there must be concerted action to common end".
Example.-There are two persons, A and B both are driving their cars and they have a bet who will reach first to the car of C. In doing so, both drive very fast and collide with the car of 'C'. C gets injured. Here both A and B will be held liable as joint-tortfeasors. But, if A and B are going driving their respective cars and have no such plan and meet with such accident with C then both A and B will be considered as independent tortfeasors.
The joint liability arises under three following circumstances:
Agency-When someone appoints a person to act on his behalf and if any tort is committed by such person then both the persons, principal as well as agent are jointly as well as independently liable and they are treated as joint-tortfeasors.
Vicarious liability-If, a person is held liable for the tort committed by someone else under special relationship then it will be a joint liability and both are tortfeasors.
Joint or common action-When a group of two or more persons join together for a common action then all the persons who are consisting the groups are jointly and severally liable for a tort which has been committed in furtherance of an action.
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1. Law Reports (1924) Probate Div. 140.
It would not be out of place here to mention that where the damage caused by each of the several tortfeasors is distinct then each of the tortfeasors will be liable only for the damage which is attributable to his own act.
In Machindranath Kernath Kasar v. D.S. Mylarappa, the damage is caused by negligence on the part of the driver of offending vehicle. The Apex Court held that when a damage is caused upon act of negligence on the part of a person, the said person is primarily held to be liable for payment of damages. The owner of the vehicle would be liable as he has permitted the use thereof. To that effect only under the Motor Vehicles Act, both driver and owner would be jointly liable. This, however, would not mean that they are joint tortfeasors in the strict sense of the term. There exists a distinction between the liability of the owner of a vehicle which was used in commission of the accident and that of the driver for whose negligence the accident was caused, but the same would not mean that the owner and the driver are joint tortfeasors in the sense as it is ordinarily understood. (MANU/SC/2484/2008 : AIR 2008 SC 2545).
3.
Independent tortfeasors are severally liable for the same damage owing to independent causes of action. In the case of Thompson v. London County Council, (1899) 1 QB 840, the house of plaintiff got damaged due to excavation carried out by A negligently and it had further aggravated the damage of house by B who left the watermain insufficiently stopped. The Court held both A and B liable for damage but not as joint-tortfeasors as their acts were independent. It was held that the damage is one but the causes of action which led to that damage are two. Hence, such tortfeasors are severally liable for the same damage but they are not jointly liable for the same tort.
In the Koursk case,1 two ships Koursk and Clanchisholm collided with each other and in this process, the ship Clanchisholm ran into another ship Itria and sank the same. The owners of Itria brought the case against the owners of Clanchisholm and recovered damages but not satisfied with the amount since Clanchisholm had their limited liability for a lesser amount. Then the owners of Itria filed a suit against the owners of the Koursk also. It was observed that Koursk and Clanchisholm were independent tortfeasors and not joint. So, there could be as many causes of action which will correspond with the number of tortfeasors. Further, the court was of the view that the judgment delivered in the Clanchisholm did not bar the action against Koursk.
4.
Three principles have been given in English Common Law regarding liability of Joint-tortfeasors.
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First principle |
Second principle |
Third principle |
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Liability of wrongdoers are joint and several i.e., each one is liable for the whole damage. Here, the injured party may sue them jointly or any of them separately and the decree against them may be executed against any one of them. |
It was observed in the case Brinsmead v. Harrison, (1871) 2 R 7 CP 547, that a judgment obtained against one joint wrongdoer released all the others even though it was not satisfied. The tort is said to have merged in the judgment. |
A tortfeasor liable in damage for his fraud or wilful wrongdoing could not recover contribution or indemnity from a joint tort-feasors. |
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1. Law Reports (1924) Probate Div. 140.
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In Arneil v. Peterson, 1913 AC 560, two dogs belonging to two different owners attacked a flock of sheep and injured many of them. When the plaintiff was sued, it was claimed that he was responsible for half of the damage. It was held that each owner is responsible for whole damage. |
Brinsmead sued Harrison for recovery of piano. Harrison defended that Brimsmead has already recovered judgment against his joint-tortfeasor. Brimstead had this plea that he could not realise the amount from tortfeasor hence this action was brought. But Blakburn, J. held that it will not be permitted. |
InMerryweatherv. Nixon, (1799) TR 88, two persons (X andY) damaged the machinery in Starkey's mill. Starkey sued them jointly and got judgment for £ 840 and executed againstX for the whole.X sued Y for contribution for £ 420. But Lord Kenyon dismissed the suit and held that he can't obtain it from his joint tortfeasor Y. |
But, all the above rules were abolished by the Law Reform (Married Women and Tortfeasors) Act, 1935 and The Civil Liability (Contribution) Act, 1978. The third rule created by section 6(i)(b) of the Law Reform Act of 1935 was repealed and replaced by section 4 of the Civil Liability (Contribution) Act, 1978 which will not allow the only recovery of cost in the subsequent suits, unless the court is of the opinion that there was reasonable ground for bringing the action.
5.
We don't have any statutory law on Joint-Tortfeasors liability in India. Till 1942, the courts in India followed the law as laid down in Brinsmead and Merryweather cases but later on the courts abandoned the law as preached in above cases.
Further, Indian courts also not followed the statutory law of England wherever it was against the principles of equity, justice and good conscience.
In Nawal Kishore v. Rameshwar, MANU/UP/0172/1955 : AIR 1955 All 594, case Justice Agarwal gave illustration on this point as-
"there is no statutory law of torts in this country. The courts of this country act on the principles of equity, justice and good conscience in matters which are not covered by statute and rely upon the principles established under the English Law to find out what the rule of justice, equity and good conscience is. Any technical rule or statutory law of England is not as such, considered to be based on the principle of equity, justice and good conscience, unless it appears to be so to the judge deciding the case. It appears to us that the rule of law indicated in
Clause 6(1)(b) of the Act, 1935 is not necessarily based on any principle of equity, justice and good conscience. There is no justifiable reason why, in the subsequent suit, if more than one suit is brought for damages against different persons, the plaintiff should be restricted to the amount decreed against the joint-tortfeasor in his suit against the other joint-tortfeasor against whom the cause of action is not only joint but joint and several."
Kushal Rao v. Babu Ram Ganapat Rao, MANU/NA/0039/1941 : AIR 1942 Nag 52, in this case, the Chief Justice Stone while discussing the liability of joint-tortfeasors said that the rule in Merryweather v. Nixon is not consistent with justice, equity and good conscience and should not be followed in India-"The English rule that there is no right of contribution between joint-tortfeasors should not be applied to Indian conditions where courts do not merely administer the common law but decide in accordance with equity, justice and good conscience and where it is very desirable to exercise the power to differentiate between the various persons held jointly liable at the suit of the persons injured."
Recently, it has been seen that the Indian courts are tempted to follow or adopt common law of England if it is in consonance with the principles of equity, justice and good conscience under Indian conditions.
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