This article is written by Namrata Kandankovi, student of Symbiosis Law School Pune. The author of this article has discussed in brief, various aspects regarding joint tortfeasors, modification of law with respect to joint tortfeasor and applicability of the law of torts.
When a tort is committed by several persons, all the persons involved in it become joint tortfeasor. In addition to this, all persons will be responsible for the same tort and will be deemed to be joint wrongdoers in the eyes of law.
Now, at this point, it becomes important for one to understand that in order to establish the wrong committed by joint tortfeasors, there must be some connection between the act of one alleged tortfeasor to that of the other.
Sargent L.J words regarding this can be quoted as follows – “There must be a concurrence in the act or acts causing damage, and not merely a coincidence of separate acts, which, by their conjoined effect, cause damage.”
For Example– In Palghat Coimbatore Transport Co. V. Narayana– There was a collision between two buses which resulted in the death of one of the passengers, further in a suit filed by the representatives of the deceased under Fatal Accidents Act, it was held that the owners of both the bus companies would be liable.
With regard to joint tortfeasors, the following three prepositions can be taken into consideration-
Circumstances under which joint liability arises
Agency- The concept of agency provides that, whenever one person employes, authorises or procures another person to commit a tort, the law takes into account the wrong of both of them and eventually, both the principal and the agent become jointly and individually responsible for the actions of the agent.
Arneil v. Paterson – In the aforementioned case, two dogs at a concert which belonged to different owners, attacked a flock of sheep and injured many of them. When a suit was brought against the owners of the dogs, one of them put forth a claim that he would be liable only for one-half. But it was finally held that both the owners will be liable for the whole damage, as each of the dogs occasioned the whole of the damage.
Vicarious liability- Vicarious liability is a concept in law, whereby, the liability is assigned on a person who did not commit the wrong but has a superior legal relation with the person who actually committed the wrong. The situations of vicarious liability mostly arise in case of employee and employer relations. In the case of vicarious liability, both, the person who commits a tort and the person vicariously liable for the wrong are deemed to be joint tortfeasors.
Joint or common action- In the law of torts two or more persons are said to be joint tortfeasors if they act jointly in the tort or a same suit of action is followed if one defendant has incited another to commit the tort.
There are two principles involved in joint or common action which will be discussed under
Accessory Liability– In the context of English common law, liability for participating in another’s tort is considered to be a form of joint liability, but at the same time, it is ambiguous whether procurement is a concept which is different from that of a common design or if it is a subset of it. Considering it on a whole it can be concluded that the law favours procurement as a subset of law rather than taking it as a form of common design.
In support of this, a judgment was given in the case of CBS Songs Ltd v Amstrad Consumer Electronics plc whereby it was held that procurer is a joint tortfeasor only if he shares the design of the primary tortfeasor.
Tort of Common Design– In the case of Fish & Fish Ltd v Sea Shepherd UK, it was taken into account that in order to establish accessory liability on a person, two elements are necessary to be proved, which are, one- the defendant acted in a particular way and this was the reason which led to the occurrence of the tort by the main actor. Two, the main actor would have further done so in pursuance of a joint plan or “Common Design”. There is no established test for determining the common liability and it varies from one case to another depending upon the facts and circumstances of the case.
The nature of joint tortfeasor’s liability
There are various circumstances involved when it comes to liability of joint tortfeasors:
- The nature of liability of joint tortfeasor always acts in the advantage of the plaintiff or the injured party and lays down numerous provisions by the way of which justice can be served to the plaintiff. It is always at the discretion of the injured party or the plaintiff to either sue one of the many joint tortfeasors for the whole damage caused to him or to make all the tortfeasors liable for all the damage incurred by him.
- Defendants who are jointly liable for a tort have an inherent liability on them up to the full amount of the judgment awarded to the plaintiff. A successful plaintiff, on the other hand, has an option of either collect the entire amount from one defendant or to take it from all of them collectively. Illustration- If there are two defendants A and B, and in an aforesaid suit against them, Defendant A is found to be at 60% fault and defendant B is found to be at 40% fault. Now if C is the plaintiff in this case, C has the discretion to either collect the entire amount from A or B or to collect the amount in regard to each person’s liability.
- The second aspect dealing with the nature of liability of tortfeasors throws light on the release of tortfeasors. It formulates that the release of one tortfeasor would result in the release of all tortfeasors. The reason behind such nature of liability is the “Cause of Action”. The cause of action in torts is always one and indivisible, and release of one person from that cause of action results in the release of all joint tortfeasors who were held liable. Furthermore, the intention of the parties has no role to play in the release of the tortfeasors. Further, a mere agreement to not to sue a particular wrongdoer has a completely different perspective and can be variedly different from the release of the tortfeasors.
- The third aspect draws the attention of the plaintiff or the injured party towards the bar placed on him in regard to the “Future Course of Action”. Put in simple terms, the third aspect can be explained as follows – When a judgment is passed or obtained against one or more tortfeasors, it would place a bar on the injured party to further initiate any suit against any particular tortfeasor or all of the tortfeasors collectively.
- However, this was the situation earlier, the recent developments in the area of joint tortfeasor have come up with a view that judgment obtained against one tortfeasor is no bar to initiate an action against another tortfeasor for the same cause of action. But at the same time, it is a well-established principle that the sum recoverable through the way of damages cannot exceed the amount of damages which was awarded by the first judgment. This particular modification in the law of torts was brought by The Law Reform (Married Women and Tortfeasors) Act 1935.
- One of the loopholes involved in the case of joint tortfeasor is that it can make a defendant end up paying damages which are disproportionate to his liability in the suit. Such instances come to light in case of insured and uninsured defendants. If any one of the defendants in the suit has a deeper pocket or larger insurance policy then he may be under an obligation to pay most of the damages even when he was not a primary defendant.
Contribution between joint tortfeasors
This section of the article would carry forth the discussion on the loophole involved in the liability between the joint tortfeasor, whereby one of the defendants may be forced to pay the whole share, even if he has a secondary involvement in the tort.
- The concept of contribution between the joint tortfeasor lays down that a tortfeasor who is forced to pay the disproportionate amount to the injured party has no right to claim such a share from other or other parties.
- This particular principle is based on the maxim ‘Ex Turpi Causa Non Oritur Actio’, this maxim lays down that, No action arises from an illegal cause. More detailed meaning of the maxim can be quoted in the following manner- A person who suffers damage at the hands of another, but in addition, he himself has acted in an unconscionable manner should be deprived of any remedy which the law would have otherwise provided.
- In an English case, Everet v. Williams – Where the plaintiff and the defendants were partners in highway robbing and by the way of it collected 2000 pounds, and then when the plaintiff filed a suit for the share of the sum, the court dismissed the suit on the grounds of it being Scandalous and Impertinent.
Merryweather v. Nixon
- This was a landmark where it was laid down that, in common law, a wrongdoer cannot maintain an action for contribution against another wrongdoer, even when the one seeking contribution would have satisfied the full claim of damages. And this rule is popularly known as Merryweather v. Nixon Rule.
- The facts of this case involved the following – M and N conjointly destroyed the machinery which belonged to R, eventually, R brought an action against both and obtained a claim of 840 pounds by way of the judgment delivered in his favour. The whole amount was levied on M, who again sought contribution from N for half of the amount by filing a suit against him. The court laid down that M could not recover.
- The rule of Merryweather v. Nixon existed and had wide applicability but it existed with several exceptions to it and these exceptions will be discussed in detail in the forthcoming segment of the article.
Exceptions to the rule in Merryweather v. Nixon with regard to contribution between wrong-doers
The application of the well-established rule was later limited to the course of time where the cases specifically revealed willful and conscious wrongdoing by the defendant, and the exceptions regarding this rule are listed as under:
- The rule was not applicable in cases which involved negligence or where there was an unintentional breach of law.
- Not applicable in cases of Indemnity, where one man employed another to do certain acts, provided the acts were not unlawful in themselves by the way of their existence, for the purpose of asserting a right.
- Not applicable where there exists a right of contribution between the directors or promoters of a company who are jointly liable for the misrepresentation contained in the prospectus. This aspect is covered under section 62 of Companies Act 1956.
- Taking into consideration admiralty action in case of collision, it can be said that, whenever such actions are involved, the damage caused by a vessel by collision with another vessel will be borne equally by both the vessels.
Abolition of the rule in Merryweather v. Nixon
The case of Merryweather v. Nixon was decided by the King’s Bench in 1799 by Lord Kenyon, C. J. It was a Court of Common Law as distinct from a Court of Equity. But it later stood abolished by The Law Reform (Married Women and Tortfeasors) Act, 1935. This act provides for the following:
- In contrary to the previous law, the tortfeasor can now recover contribution from other tortfeasors who is also liable in respect of the same tort, it may be either jointly or otherwise.
- While recovering the amount from the tortfeasor, it is essential to make sure that the amount is just and equitable and in addition to this, it has a regard to the extent of the defendant’s liability to the aforesaid tort.
- The court has discretion in any given case to exempt a tortfeasor from the liability to contribute.
Whether the rule in Merryweather v. Nixon applies in India?
Prior to the abolition of the rule of Merryweather v. Nixon, the courts in India had a conflicting opinion regarding the applicability of the rule. There have been numerous cases where the rule of Merryweather v. Nixon was followed in India. It was freely applied by the courts where the parties knew or ought to have known that they were indulged in wrongdoing.
In contradiction to this, the High Courts of Allahabad, Calcutta and Nagpur had stringently held that the rule does not have any applicability in India. The rules laid down and followed by these courts was that a tortfeasor would have every right to recover compensation from the other joint tortfeasor who was also liable for the same tort.
Considering the present scenario, it can be said that the rule in Merryweather v. Nixon, which does not comply with Justice, Equity and Good Conscience, which was further abolished by the court of England and was rightly rejected from being applied in several courts in India.
The article has covered under its ambit, numerous concepts, case laws and provisions related to the concept of the joint tortfeasor. It showcases the rigid and reasonable use of tort law and through the way of which there can be justice served in the interest of the society. There have been changes and modifications brought in the tort law regarding the liability of joint tortfeasors, in order to make it come in line with the changes evolved in the society over the passage of time. Further, wherever there was wrong being done on the part of the defendant with regard disproportionate to claim of damages by the plaintiff in case of joint tortfeasors, such provisions have been keenly dealt with and there have been modifications made in order to serve and protect the interests of the defendants.