Notes on Joint and Several Liability | Law of Torts



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TORTS : JOINT TORT FEASORS


When two or more tort feasors involved in the tort then it throws out several questions as follows:-

1.Who all can be made liable ?

2.Whom can plaintiff sue for remedy?

3.What is the liability of these tort feasors towards plaintiff? Etc

The above questions are answered below!


Common law position: Just know them do not memeorise !


Principles on joint tort feasor :

PRINCIPLE I


Regarding right to sue of plaintiff : If the plaintiff had filed suit against only one or some of them, he was debarred from brining successive action against the remainder that is those who were not sued in the first instance.


Reason: When plaintiff omits any tort feasor it is taken as if the plaintiff has omitted him with intention- for a reason thus plaintiff cannot later pull the omitted tort feasor.


Conclusion: To get appropriate remedy /include all tort feasors the plaintiff must sue all the tort feasors.


Drawback: Plaintiff is a person who is already a victim to some damage, further he cannot know all the persons who have committed tort, depending on his meager prudence he would have initiated suit thus the above principle debarring the right of plaintiff to sue left out tort feasors is unjust.


Remedy : This rule was abolished by the law reform (Married Women & Tort - Feasors) Act, 1935


Modified principle : Judgment recovered against any tort-feasors shall not be a bar to an action against other tort-feasers.


PRINCIPLE II


Regarding payment of damages by joint tort feasors: Where one of the joint tort- feasors has paid the whole damages to the plaintiff, he had no right to claim contribution from others.


Implication: By this rule the other tort feasors are left free without liability and one tort feasor is made to suffer all liability which is against equity principle : each one must pay their due share.


Solution: This principle has also been abolished by the English Civil Liability (Contribution) Act, 1978.


WARNING NOTE ! Both these principles were not applicable to India

firstly because they were embodied in the statutory law of England and

Secondly, because they were contrary to the doctrine of equity, justice and good conscience.


INDEPENDENT TORT FEASORS


Who are independent tort feasors ? When the acts of two or more persons acting independently concur to produce a single damage, they are known as independent tort feasors. There is mere similarity of design on their part although they act independently of one another.


Lx Explains : Two aircraft flying negligently and coming from the opposite directions collide and the super structure is crushed between the two aircrafts are independent tortfeasors.


Liability of Independent Tort feasors : The liability of the independent tortfeasors was not joint but only 'several'


Implication of several liability : Each tort feasor is liable to the tort committed by them #Karnataka State Road Transport Corporation v. RenyMammen and others, 1991 Act 403,


Result : Therefore there were many causes of action as the number of tort feasors.


But note ! Since they were severally liable, an action again one of them was no bar to an action against the other.


In case of collision between bus and truck coming from opposite directions due to composite negligence of both the drivers, the two drivers cannot be regarded as joint tortfeasors but they are in law, several tort feasors # InDrupad Kumar Barua v. Assam State Trans. Corpn. and others, 1990 A.C.J. 46


Plaintiff to file several suits: The person damnified might sue them one by one and recover from one alone or from such as he chose to execute judgment against.


Condition to recover appropriate damages: Provided that he did not recover more than the greatest sum awarded or, against any defendant, more than was awarded in the action against him


JOINT TORT FEASORS


Who are joint tort feasors ? Two or more persons are said to be joint tortfeasors when the wrongful act which has resulted in a single damage was done not independently of one another but in furtherance of common design


Passive offenders in common design are also joint tort feasors : Two or more persons are engaged in a common pursuit and one of them in the course of and in furtherance of that commits a tort, both of them will be considered as joint tort fearors and liable as such.


Persons having certain relationship are also treated as tort feasors: Examples Principal and agent, master and his servant and partners in a partnership firm( Dealt in module 4)


What is the specialty of this joint tort feasors concept ?

Even if one defendant

  • dies,

  • disappears, or

  • is declared bankrupt,

the plaintiff can recover the full amount of the damages from the other defendant(s)


Points to identify joint tort feasors :


1.Wrongdoers are deemed to be joint tortfeasors within the meaning of the rule where the cause of action against each of them is the same, namely, that the same evidence would support an action against them, individually #Brunsden v. Humphrey


2.There must be a concurrence in the act or acts causing damage not merely a coincidence of separate acts which by their conjoined effect causes damage# The Koursk – ship case.


3.Accordingly they will be jointly liable for a tort which they both commit or for which they are responsible because the law imputes the commission of the same wrongful act to two or more persons at the same time.

This occurs in cases of

(a) agency,

(b) vicarious liability, and

(c) where a tort is committed in the course of a joint act whilst pursuing a common purpose agreed between them # Brooke v. Bool .


Plaintiff can sue jointly or severable : The person injured may sue any one of them separately for the full amount of the loss; or he may sue all of them jointly in the same action, and even in this latter case the judgment so obtained against all of them may be executed in full against any one of them


WARNING ! Torts in India have not necessarily followed the distinction between joint and independent tort feasors as recognised in England.


COMPOSITE TORT FEASOR


Who are composite tort feasors ? When two or more persons are responsible for a common damage (whether acting independently or jointly) they have been termed as composite tortfeasors.


Plaintiff can sue jointly and severably : The injured has the option to proceed against all or any one of the joint tort feasors # United India Fire & Genl. Ins. Co. Ltd. v. Varghese.


JOINT AND SEVERAL LIABILITY


Right of plaintiff to sue: Where the plaintiff sued anyone or some of the joint-feasors but the decree passed in favour of the plaintiff was not in full bring fresh suit against the remaining tort-feasors.


Successive claim : Where the cost of suit has been recovered by the plaintiff from the tort-feasors whom he sued first, he cannot be permitted to claim costs in successive suits unless the court deems it just and reasonable.


Right of defendant to sue co-defendants : A defendant who has paid the aggregate full amount of decree shall have the right to sue the co- defendants (Joint- tort-feasors) for contribution.


Compromise agreement : An agreement or covenant of compromise between the plaintiff and or more tort-feasors does not ipso-facto extinguish the liability of remaining tort- feasors hence suit against them shall not abate, instead it will be continued until the final decision.


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