Joint and Several Tortfeasors: Definition, Cases, Nature of liability, Contribution between tortfeasors and defence.

Joint and Several Tortfeasors: Definition, Cases, Nature of liability, Contribution between tortfeasors and defence.


Joint and Several Tortfeasors

Joint and Several Tortfeasors

Definition

According to Salmond, "Where the same damage is caused to a person by two or more wrongdoers those wrongdoers may be either joint or independent tortfeasors. Persons are to be deemed joint tortfeasors within the meaning of this rule whenever they are responsible for the same fort, that is to say, whenever the law for any reason imputes the commission of the same wrongful act to two or more persons at once. This happens in at least three classes of cases namely, agency, vicarious liability and common action, i.e., where a tort is committed in the course of common action, a joint act done in pursuance of a concerted purpose." 

This can be understood better with the help of an illustrative case. 

Brooke v. Bool

where the defendant alongwith a person named Morris, entered the premises of the plaintiff to search for a gas leak. The defendant applied a naked light to a gas pipe. Morris followed his suit but this time there was an explosion which damaged the premises of the plaintiff. They were held to be joint torfessors. But in The Kousk due to defendant's acts of negligence, two ships collided. As a result of the impact of the said collision, one of the ships collided with a third ship. The collision with the third was not on account of any negligence on the part of the said ship. It was field that they were not joint-tortfeasors but only independent tortfeasors and hence the third ship could sue independently or separately each of the two negligent ships.

Sargant, L.J. observed: 

There must be a concurrence in the act or acts causing damages, not merely a coincidence of separate acts by their conjoined effects cause damages."

Nature of liability

If a tort is committed jointly by a number of persons, each is responsible severally as well as jointly with each and all the others for the whole amount of the damage caused by them and the extent of the participation of each of them in the commission of the tort is immaterial. The person aggrieved or injured may sue any of them separately for the whole loss or he may sue of all of them jointly. The position is different in case of independent tortfeasors.

In case of independent tortfeasors, the injured person may sue them one by one subject only to the condition that he cannot recover more than the greatest sum awarded.

Successive actions.-Judgment against one independent tortfeasor does not bar proceedings against another unless the judgment is actually satisfied. Before the Law Reform (Married Women and Tortfeasors) Act, 1935, judgment against one joint tortfeasor released all others even though it was not satisfied. This rule was abolished by the said Act of 1935.79 The Act, however, lays down two conditions. In the first place, the sums recoverable under the judgments given in those (i.e.. more than one) by way of damages shall not in the aggregate exceed the amount of damages awarded by the judgment first given. Secondly, in any of the successive actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the court is of the opinion that there was reasonable ground for bringing the action.


In India, the law laid down in the said Act of 1935 is not followed

In Nawal Kishore Rameshwar,& the Allahabad High Court observed that Section 6 (1) (b) it is not necessarily based on principle of equity, justice and good conscience and there is no justifiable reason that the plaintiff be restricted to the amount decreed against the joint tortfeasor in his suit against the other joint tortfeasor for the cause against him is not only joint but joint and several.

Release.-It is well settled that the releases of one joint tortfeasor releases all others. This remains the rule even after the passing of the Law Reform Act of 1935. Release should, however, be distinguished from a mere agreement not to sue. While release of one joint tortfeasor releases all others, an agreement not to sum merely prevents it from being enforced against the particular fortfeasor with whom the agreement is entered into.

In Egger v. Viscount Chelmsford, 

Lord Denning, M.R., observed: "I cannot persons concerned in a joint publication is a tortfeasor then all are joint tortfeasors. They must, therefore, stand or fall together so much so that the defence of one is the defence of all; and the malice of one is the malice of all. I think this assumption rests on a fallacy. In point of law, no tortfeasor can truly be described solely as joint tortfeasor. They are always several tortfeasors as well. In any joint tort, the party injured has choice of whom to sue. He can sue all of them or more of them separately. This has been the law for centuries. It is well stated in Serjeant Williams 'Celebrated notes to Saunders' Report (1845 ed.) of Cabell v. Voughan (1669) 1 and 291. If several persons jointly commit a tort, the plaintiff has his option to sue all or any member of parties because a tort is in its nature the separate act of each individual.' There lies the gist of the matter. Even in a joint tort the tort is the separate act of each individual. Each is severally answerable; each is severally entitled to his defence. If he himself is innocent of malice, he is entitled to the benefit of it. He is not to be dragged down with the guilty. No one is by our English law to be pronounced a wrongdoer, or be made liable to pay damages for a wrong, unless he himself has done wrong; or his agent or servant has done wrong and he is vicariously responsible for it. Save in the case where the principle respondent superior applies, the law does not impute wrong doing to a man who is in fact innocent.


Commenting on the approach of Lord Denning in the above case, Gatley has remarked: "His approach is also not easy to reconcile with the law on the release of joint tortfeasors."


In the United States of America, in an early decision, Lovejoy v. Murry the U.S. Supreme Court refused to follow the English Common Law. Miller J., observed: "We apprehend that no sound jurist would attempt at this day to define it on the ground of transit in rem judicatam. For, while this principle, as that other rule, that no man shall be twice vexed for the same cause of action, may well be applied in the case of a second suit against the same trespasser, we do not perceive its force when applied to a suit brought for the first time against another trespasser in the same matter........But in all such cases, what has the defendant in such second suit done to discharge himself from the obligation which law imposes upon him to make compensation? His liability must remain, in morals and on principle until he does this. The judgment against co-trespasser does not affect him so as to release him on any equitable consideration. It may be said that neither does the satisfaction by his co-trespasser do this: that is true. But when the it may come, he is so far affected in equity and good conscience that the law will not plaintiff has accepted satisfaction in full for the injury done to him, from whatever source allow him to recover again for the same damages. But it is not easy to see how he is so affected, until he has received full satisfaction, or that which the law must consider as such

We are, therefore, of opinion that nothing short of satisfaction, or its equivalent, can make good a plea of former judgment in trespass, offered as a bar in an action against another joint trespasser who was not party to the first judgment." In India the English law has been generally followed



In Khushro S. Gandhi and others v. N.A. Guzder (dead) (by his legal representative and others] the Supreme Court of India expounded the law in the following words:


"It seems to us, however, that the rule in common law prior to Brown v. Wooton89 and the rule adopted by the United States Supreme Court is more in consonance with equity, justice and good conscience. In other words, the plaintiff must have received full satisfaction or which the law must consider as such from a tortfeasor before the other joint tortfeasor can rely on accord and satisfaction. This rule would recognise that the liability of tortfessors is joint and several....... What is full satisfaction will depend on facts and circumstances of the case. For example, the acceptance of Rs. 25 in the case of Ram Kumar Singh would not be a case of full satisfaction."

Facts of this case are the following:

In this case, the four plaintiffs, out of which three were appellants before the court, the fourth having died, brought a suit for damages against the six defendants (one defendant had in the meantime died and four were respondents before the court). The allegations in the plaint, in brief, were that the plaintiffs and the defendants were members of an association called Parsi Zoroastrian Anjuman; that the defendants, alongwith some other members of the association, formed a group and each of them conspired among themselves to injure and harass the plaintiffs and a few others in various ways; that a meeting held on May 5, 1954, in connection with the election of trustees when defendant N.A. Guzder occupied the chair, he gave a ruling that the plaintiff Khusro S. Gandhi and B.T.J. Shapoorji, since deceased, were unfit candidates for the office of trustees and thus prevented from seeking the election, and contrary to the rules of the Anjuman and without taking votes declared the defendant. F.J. Gandhi and one A.F. Cama duly elected. It was further alleged that on 3rd July, 1954 another meeting of the Anjuman was held when the plaintiffs, Khusro S. Gandhi and Framroze S. Gandhi were candidates for election to the office of the trustees, and defendant F.J. Gandhi gave a perverse ruling rejecting the nomination of the above plaintiffs and after taking votes declared G.T. Shapoorji a duly elected trustee, that by the aforesaid rejections, the plaintiffs had suffered an injury for which defendants No. 1 to 6 were jointly and severally liable and the plaintiffs were entitled to recover damages from the defendants.


The plaint was filed on January 21, 1955. Before any written statement was submitted, on February 18, 1955, the sixth defendant, S. Rabadi, entered into a compromise with the plaintiffs. The compromise agreement stated that he was "sincerely sorry" and apologised to the plaintiff "unconditionally for whatever I have done. I realise that I was in error and was misguided" The plaintiffs accepted the apology and agreed that "the suit against him may be disposed of treating the aforesaid apology and its acceptance by the plaintiffs as settlement of the dispute between the plaintiffs and defendant No. 6". On May 14, 1955, the other defendants filed a written statement wherein they claimed that the release of the defendant No. 6........from his joint liability as a tortfeasor has in law extinguished the plaintiff's rights to sue the other remaining defendants and claim damage from them."


Contribution between tortfeasors.

"-Under the Common Law of England, the general rule was that joint tortfeasors who satisfied the plaintiff claim in full, could not recover a contribution from any other joint tortfesor. This is known as rule 

In Meeryweather v. Nixon.

In this case, S brought an action in tort against M and N for destroying his machinery and obtained a judgment of £840. He recovered the whole of this amount from M. M filed the present suit against N to recover his contribution of the said sum of money. It was held that M could not recover. The rule in Merryweather v. Nixon has been severally criticized. It "does not appear its extension." To mitigate the rigours of the said rule, certain exceptions to the rule were recognised in the course of time. For example, in Adamson Jarvis,  it was held that the rule was limited to cases where the person seeking redress "must be presumed to have known that he was doing an unlawful act". In this case, the defendant instructed the plaintiff, an auctioneer, to sell certain goods although the goods did not belong to him. Under the belief that the goods belonged to the defendant, the plaintiff sold the goods. The real owner brought an action against the plaintiff and recovered compensation. The plaintiff brought this action against the defendant to recover the amount paid to the real owner. It was held that the defendant was liable to indemnitfy the plaintiff.

Position in India.

In India, in the absence of a statute parallel to the Law Reform (Married Women and Tortfeasors) Act, 1935, in some cases, courts have applied the rule

In Meerywealther v. Nixon

whereas in some other cases courts have expressed doubts, about its soundness. On the other hand, some High Courts (such as Nagpur, Allahabad and Calcutta) have, however, held that the rule in Merryweather v. Nixon is inapplicable in India. In Khushalrao v. Bapurao Gunpatrao the Nagpur High Court observed: "In India where one of the judgment-debtor pays off his decretal debts, he has a right to contribution from his co-judgment-debtors; to what extent and in what proportion may depend upon the circumstances. The English rule that there is no right of contribution between the tortfeasors or any rule which would vigorously divide up the liability in as many shares as there were persons liable should not be applied to Indian conditions where courts do not merely administer the Common Law, but decide in accordance with justice, equity and good conscience and where it is very desirable to exercise the power differentiate between the various persons held jointly liable at the suit of the person injured". Thus, as rightly remarked by Waliullah, J., in Dharni Dhar v. Chandra Shekhar, 102 the rule in Merrywealther v. Nixon "has no application to cases arising now in this country. It cannot be invoked as a rule of the English Common Law on the ground of justice, equity and good conscience for the simple reason that since 1935 it no longer remains part of the English Common Law. The rule is devoid of the basic principle of equity that there should be an equality of burden and benefit.....neither on principle nor on authority, the rule in Merryweather v. Nixon is fit to be recognised and followed in India."

Defence under tortfeasors.


1. Contribution and Apportionment of Fault

 A defense available to joint tortfeasors is the ability to seek contribution from co-defendants. If one defendant has paid more than their fair share of the damages, they can seek reimbursement from the other tortfeasors in proportion to their respective degrees of fault.

2. Comparative Fault

In some jurisdictions, the concept of comparative fault allows the jury to apportion fault among all parties involved, including the plaintiff. Each tortfeasor is then held responsible for damages according to their percentage of fault.

3. Release and Discharge

If the plaintiff settles with or releases one of the joint tortfeasors, that released tortfeasor may be absolved of further liability. The plaintiff's claim against the released tortfeasor is effectively discharged.

4. Indemnity

In cases where one tortfeasor is more responsible for the harm caused than others, the less culpable tortfeasors may have a right to seek indemnity from the more at-fault party. This allows the less at-fault party to be fully compensated for the damages they are required to pay.

5. Judgment Reduction

If the plaintiff recovers the full amount of damages from one joint tortfeasor, the other tortfeasors may be entitled to have the judgment against them reduced accordingly.

6. Act of God Defense

In certain circumstances, a defendant might raise the defense of an "Act of God" or an unavoidable accident that could not have been prevented, which would absolve them of liability.


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