Independence and Joint Tortfeasors
When two or more persons commit some tort against the same plaintiff, they may be either independent joint tortfeasors.
When the acts of two or more persons, acting independently, concur to produce a single damage, they are known as independent tortfeasors. There is no concerted action on the part of independent tortfeasors. There is mere similarity of design on their part although they act quite independently of one another. For example, two motorists driving negligently and coming from the opposite direction collide and a pedestrian is crushed between the two cars, these motorists are independent tortfeasors.
In The Koursk, due to independent negligence of the two ships, they collided with one another and as a consequence of the same, one of them ran into and sank a third vessel. It was held that they were not joint tortfeasors but only independent tortfeasors. The liability of the independent tortfeasors was not joint but only “several’ and, therefore, there were as many causes of action as the number of tortfeasors. It was thus further held that since they were severally liable, an action against one of them was no bar to an action against the other.
Two or more persons are said to be joint tortfeasors when the wrongly act, which has resulted in a single damage, was done by them, not independently of one another, but in furtherance of a common design. When two or more persons are engaged in a common pursuit and one of them in the course of and in furtherance of that commits is tort, both of them will be considered as joint tortfeasors and liable as such. In Brook v. Bool, A and B entered Z’s premises to search for an escape of gas. Each one of them, in turn, applied damage to Z’s premises in this case, even through the act of A alone had caused the explosion, but both A and B were considered to be joint tortfeasors and thus held liable for the damage.
Persons having certain relationships are also treated as tortfeasors. The common examples of the same are : Principal and his agent, master and his servant and the partners in a partnership firm. If an agent does a wrongful act in the scope of his employment for his principal, the principal can be made liable along with the agent as a joint tortfeasor. Similarly, when the servant commits a tort in the cause of employment of his master, both the master and the servant are liable as joint tortfeasors. In the same way, for the wrongful act done by one partner in a partnership firm, in the course of performance of his duties as a partner, all the other partners in the firm are liable along with the wrongdoer.
Thus, the distinction between joint tortfeasors and independent tortfeasors lies in the fact that in the case of former, there is concurrence, not only in the ultimate cosnequences but also mental concurrence in doing the act; in the case of latter, on the other hand, there is merely a concurrence in the ultimate result of the wrongful act independently done. As stated by Prof. Glanville Williams, “Concurrent tortfeasors are tortfeasors whose torts concur (run together) to produce the same damage. They are either joint concurrent tortfeasors (briefly, joint tortfeasors), where there is not only a concurrence in the chain of causation leading to the single damage, but also (apart from non-feasance in breach of a joint duty) mental concurrence in some enterprise or several concurrent tortyfeasors (independent tortfeasors), where the concurrence is exclusively in the realm of causation”.
The courts in India have not necessarily followed the distinction between joint and independent tortfeasors, as recognized in England. When two or more persons are responsible for a common damage (whether acting independently or jointly), they have been termed as composite tortfeasors. The position of such tortfeasors for their composite negligence has been discussed in a later Chapter.
The reasons for distinction between joint and independent tortfeasors
- In the case of joint tortfeasors, there was considered to be a single cause of action and, therefore, if a judgement had been obtained against one of the joint remained unsatisfied, he could not bring an action against the remaining joint tortfeasors. In the case of independent tortfeasors, on the other hand, there were considered to be as may causes of action as the number of independent tortfeasors. Therefore, an action against one of such tortfeasors was no bar to an action against the other tortfeasors.
The position of joint tortfeasors has been brought at par with the independent tortfeasors by legislation in England, and now the action against one or some of the joint tortfeasors is no bar to an action against the remaining of them. In this respect, in India also, the position appears to be the same as brought about by the legislation in England.
- Release of one of the joint tortfeasors results in the release of all others, unless there is an express stipulation to the contrary. In the case of independent tortfeasors, the position is different.
Joint and several Liability-Liability therefor
The liability of joint tortfeasors is joint and several. The plaintiff has a choice to sue any one of them, some of them or all of them, in an action. Each one of them can be made to pay the full amount of compensation. Thus, for the wrong done by the agent, both the principal and the agent are jo8intly and severally liable. Even though the actual wrongdoer is the agent, if the plaintiff so elects, he may sue the principal for the whole of the damage. As against the aggrieved party, the principal for the whole of the damage. As against the aggrieved party, the principal cannot take the defence that the actual wrongdoer was the agent, although after making good the loss, the principal may hold the agent responsible to the extent of his (agent’s) fault. Similarly, for the wrongful act done by the servant, the master is liable along with the servant as a joint tortfeasor and for the wrongful act of a partner, the firm is liable therefor to the same extent as the guilty partner.
Where the plaintiff elects to bring an action against all of them jointly, judgment obtained against all of them may be executed in full against any of them. In the event of liability of joint tortfeasors, it is no concern of the tribunal to apportion the damages between them.
In Sasidharan v. Sukumaran, a wrongly parked truck was hit by a bus driven rashly and negligently and a person sitting in the truck sustained injuries. Tribunal held that both the drivers were equally negligent. Damage was caused not by joint action but separate actions independent of each other. The injured was held not entitled to claim the entire amount of compensation awarded from driver, owner or insurance company of either of the two vehicles as both drivers were not joint tortfeasors and their liability was not joint and several.
Possibility of successive actions in England
The problem which sometimes arises is ; If the plaintiff has brought an action against one or some of the joint tortfeasors omitting to sue the others, and the judgment against those sued is not fully satisfied, can he subsequently recover the balance of the amount by filing suits against those whom he had omitted to sue earlier?
At Common law, if a judgment was obtained against any of the joint tortfesasors that resulted in the release of the other joint tortfeasors, there was considered to be only one cause of action in favour of the plaintiff and, therefore, if he had obtained judgment against any of the joint tortfeasors, it was assumed that the cause of action merged with the judgment and the plaintiff was thereby barred from suing the other joint tortfeasors. Successive actions against the remaining joint tortfeasors were not permitted even though the judgment against the person sued remained wholly unsatisfied.
The position in the case of independent tortfeasors was, however, different. In their case, there was considered to be a separate cause of action against each one of the tortfeasors, and, therefore, an action against one of the independent tortfeasors was no bar to an action against others, even if the plaintiff had suffered a single damage.
In the case of joint tortfeasors, the liability was joint and several. It was apparently contrary to the concept of joint and several liability that a judgment against one of them should bar the several remedy against others. The Common Law rule, being unjust, was abolished by the Law Reform (Married Women and Tortfeasors) Act, 1935 and since then, an action against one or some of the joint tortfeasors is no bar to an action against other tortfeasors, who would also have been liable for the same damage.
The law on the point at present is contained in Section 3 of the Civil Liability (Contribution) Act, 1978, which is as follows;
“judgment recovered against any person liable in respect of any debt or damage shall not be a bar to an action, or to the continuance of an action, against any other person who is (apart from such bar) jointly liable with him in respect of the same debt or damage”
The object of the above stated provision is to avoid hardship to the plaintiff who could not recover the amount of the decree because the joint tortfeasor sued was found insovent. That has been done by permitting successive action. Section 6(1)(b) of the Law Reform Act,1935 had, however, imposed a restriction in respect of subsequent actions and that had provided that if successive actions are brought, the amount of damages recoverable shall not, in the aggregate, exceed, the amount of damages awarded in the judgment first given. This provision has also been replaced by Section 4, Civil Liability (Contribution) Act, 1978, which now simply disallows recovery of costs in the subsequent suits, unless the court is of the opinion that there was reasonable ground for bringing the action. The provision contained in Section 4 is as follows.
“If more than one action is brought in respect of any damage by or on behalf of the person by whom it was suffered against persons liable in respect of the damage (whether jointly or otherwise), the plaintiff shall not be entitled to costs in any of those actions, Other than that in which judgment is first given, unless the court is of the opinion that there was a reasonable ground for bringing the action.”
The object of the restriction on the amount of damages and the costs recoverable, which had been imposed by the Law Reform Act, 1935, was to discourage vexatious litigations. So far as the restriction on the damages recoverable in the subsequent actions is concerned, that created hardship in many a cases. Sometimes, a plaintiff could not get justice. Where the defendant in the first suit might not have been liable to pay punitive damages whereas the others might be liable for that. This hardship, as has been noted above, has now been removed, and a view of the provision now contained in section 3 of the Civil Liability (Contribution) Act, 1978, there is no such bar as regards the maximum amount of compensation recoverable. It has also been noted above that Section 4 of the Civil Liability (Contribution) Act, 1978 continues to impose the restriction as regards the costs recoverable in the subsequent actions.
So far as independent tortfeasors are concerned, even before the passing of the Law Reforms Act, 1935, Common Law permitted successive actions. At Common Law, there did not exist any such restriction as is imposed by the Law Reform Act whereby the total amount recoverable should not exceed the amount awarded in the first suit. Thus, in the case of independent tortfeasors, the courts were free to increase the total amount of compensation payable than was awarded in the first suit. The Law Reform Act, as regards this point, hadvaried the position of independent tortfeasors. Restrictions imposed by Sec. discussed above, were applicable as much to the independent tortfeasors as to the joint tortfeasors.
The positionof independent tortfeasors has also been changed now by the Civil Liability (Contribution) Act, 1978 as in their case also, there is now no restriction as regards the amount recoverable in subsequent actions.
Position in India
In India, there is no legislation corresponding to the English Law Reform Act of 1935 or the Civil Liability (Contribution) Act, 1978. The question which therefore, arises is whether we should adopt the position as existed in England prior to 1935 and thereby bar subsequent actions against joint tortfeasors, or we should follow the position as created by Act of 1935. In the absence of legislation on the point or an authoritative pronouncement by the Supreme Court, our courts are free to adopt the position which they consider just according to the condition prevailing in this country. There, however, appears to be no justification in following the rule prevailing in England prior to 1935.
The Allahabad High Court, assuming that it would be in consonance with justice, equity and good conscience to permit more than one action against various joint tortfeasors in India, expressed that in such a case, it would be unjust to follow the provision of English Act which provides that the total amount which the plaintiff can claim is not to exceed the total amount awarded in the first action. Agarwal, J, in Nawal Kishore v, Rameshwar, observed ;
“……there is no statutory law of Tort in this country and the Act aforesaid is not applicable here.”
The courts of this country act on the principle 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 cl. 6(1)(b) of the Act mentioned above 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 against whom the cause of action is not only joint but joint and several.”
Release of a joint tortfeasor
It has been a well established rule of English law since long that the release of one of the joint tortfeasors releases all the others and the same has not been affected by the passing of the Law Reform Act of 1935. In the case of joint tortfeasors, the cause of action being only one and indivisible, the release of one of them releases all the others, and the cause of action against the other joint tortfeasors is extinguished. The rule applies whether the release is under seal or by way of accord and satisfaction.
The release of a joint tortfeasor has to be distinguished from a mere convenant not to sue any one of them. The release of one of the joint tortfeasors releases all the others from their liability, but a mere convenant not to sue any one of them results in the discharge of only that particular wrongdoer from liability, the joint action against others still remaining alive.
In Cutler v. McPhail, the defendant, a resisdent in the Pinner area of the Borough of Harrow wrote two letters one to a member of council and the other to the editor of the magazine, “The Villager” as an official organ of the Pinner Association. As desired by the defendant, the letter sent to the magazine, “The Villager,” was published in it. The plaintiff alleged that those letters were defamatory of him and he sued the defendant, who had sent the said letters and also the editor and the printers of “The Villager” and other officers of the Pinner Association, who were responsible for the publication of the defamatory letter in the magazine. Subsequently on apologies being published and compensation being paid to the plaintiff by the Pinner Association, the members of the Pinner Association and its officers, including the editor of the magazine, were released. In this connection, the plaintiff’s solicitors wrote to the solicitors of Pinner Association and its officers that “upon the apologies being published and the sum mentioned paid over, then my client will, of course, release from any further liability in respect of the publication complained of, all officers and members of the committee including, of course, the editor of “The Villager”.
The defendant (the sender of the letter), interr atia, pleaded that since the other joint tortfeasors, viz., the editor and printers of “The Villager” and other officers of the Printer Association, had reached an accord in respect of the publication and thereby released from liability, the defendant was also automatically released.
It was held that since the release of one of the joint tortfeasors extinguishes the cause of action against all the other joint tortfeasors, in this case, the release of Pinner Association officers, had released the defendant from his liabilituy. Salomon J. said; “The principle is quite plain, that if there is a release of one extinguished, on the other hand, if there is merely an agreement not to sue one of the several tortfeasors can properly be sued” …it may be that the law relating to release might be reconsidered with advantage: the difference between a release and an feel bound to hold in this case that there has been a release of the Pinner Association officers, and that release in law extinguishes claim in respect of the separate tort alleged to have been committed by the defendant in causing his letter to be published in “The Villager”.
In India, the English law on this point has been generally followed. Shiv Sagar Lal v, Mata Din is an illustration where there was considered to be a mere covenant not to sue any one of the joint tortfeasors and, therefore, the malicious prosecution against several defendants. One of whom was a minor. Subsequently, the plaintiff filed an application in the Count stating that there had been a settlement between him and the minor defendant and he had consequently released him. The Court thereupon discharged the said defendant. The other defendants contended that the release of one of the tortfeasors amounted to an automatic release of others from their liability. The Allahabad High Court held that it has to be gathered from the intention of the partied whether there has been release of the entire cause of action or a mere convenant not to sue only a particular defendant. In this case, the court further said that there was settlement between the plaintiff and one of the tortfeasors discharging him and the suit proceeded against others and that showed the intention of the plaintiff to preserve the right against others and, therefore, there being merely a convenant not to sue, it did not amount to release of the other joint tortfeasors.
In some cases, it has, however, been held that in order that the release of one of the joint tortfeasors amounts to the release of all others, there has to be full satisfaction for the tort committed by various defendants. If, for example, one of the several tortfeasors, in the progress of the suit, admits his liability as well as that of the others and agrees to pay a sum of money in satisfaction of his liability, that does not exonerate the other defendants, who may be found responsible for the acts complained of, from their liability. In Ram Kumar v. Ali Hussain, the plaintiff sued 12 defendants to claim damages amounting to Rs. 325 alleging that the wrong of assault had been jointly committed b all of them. Subsequently, the plaintiff made a compromise with one of the defendants and accepted from him Rs.25 as his proportionate share of damages. It was held that since there has not been a full satisfaction for the tort committed by the various defendants by a compromise with one of the defendants only, the other defendants were not released.
The above stated decision has been approved by the Supreme Court in Khusro v. N.A. Guzder. In this case, the plaintiffs filed a suit against various defendants for defamation. After the plant had been filed and before the written statement was submitted, one of the defendants tendered an unconditional apology to the plaintiffs. The plaintiffs accepted the apology and a request was made to the Court that the claim against the defendant apologizing be disposed of in terms of the settlements between the plaintiffs and that defendant. A decree was passed accordingly. In their written statement, the other defendants contended that the release of one of the joint tortfeasors extinguished the plaintiff right to sue the remaining defendants and claim damages from them. It was held that this compromise could not be treated to be a full satisfaction for the tort alleged to have been committed by the defendants, and, therefore, the other tortfeasors had not been released by the compromise.
The rights of tortfeasors inter-se; Contribution and Indemnity
Contribution between joint tortfeasors
It has been noted above that the liability of the joint tortfeasors is joint and several. The plaintiff has, therefore, a right, if he so likes, to make only one of the joint tortfeasors to meet the whole of his claim. The question which generally arises is that if one of the several tortfeasors has been made to pay, not only for his own share of responsibility but for others as well, how far he can ask other responsible with him to contribute for their share of responsibility. For example, if A and B have equal share of responsibility in a tort which they commit against X, and A has been made to pay a sum of Rs. 1000 to fully compensate X for the loss suffered by him, can A sue B to recover a contributuion of Rs. 500 from him? The answer to this question was given in the negative in 1799 in Merryweather v. Nilxan. According to that decision, there could be no contribution between the joint tortfeasors. Thus, if only one of the defendants was made to pay the whole of the amount of damages, he could not recover anything, by way of indemnity or contributions from others who were also responsible for the damage.
In Merryweather v. Nixan, one Starkey brought an action against the present plaintiff and defendant for tort. He revovered the whole amount of pounds 840 as damages only from him, the present plaintiff, who thereon suedthe defendant to recover from him his share of contribution. It was held that the plaintiff was entitled to claim any contribution between the joint tortfeasors.
The rule in Merryweather v. Nixan assumed that when a tortfeasor demanded contribution, it was in pursuance of an implied agreement between the joint tortfeasors and it would be unjust either to share the proceeds of a wrongful gain or to demand contributuion or indemnity from the joint wrongdoer. The rule continued to be applied for a long period of 136 years before it was abolished by statute. It was subjected to much criticism. The rule was unjust inasmuch as the burden of joint wrong-doing would fall on only some of them while others would escape liability altogether merely because the plaintiff chose to get the satisfaction of his claim from some particular tortfeasor. In Palmer v. Wick & P.S. Shipping Co., commenting on the merits of the rulw, Lord Herschell observed.
“When I am asked to hold it to be part of the law of Scotland, I am bound to say that it does not appear to me to be founded on any principle of justice or equity or even of public policy, Which justifies its extension to the jurisprudence of other countries.”
The rule is Merryweather v. Nixan, providing that there can be no contribution amongst joint tortfeasors, has been abrogated by the Law Reform (Married Women and Tortfeasors) Act, 1935. After the passing of the Act, a tortfeasor, who has been made to pay more than his share of damages, can claim contribution from the other joint tortfeasors for their share of the wrong, Section 6(1) of the Act provides.
“When damages is suffered by any person as a result of a tort (whether a crime or not) any Tortfeasors liable in respect to that damage may recover contribution from any other tortfeasors who is, or would if sued have been, liable in respect to the same damage, whether as a joint tortfeasor or otherwise, so, however, that no person shall be entitled to recover contribution under this sectionfrom any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought.”
It may be noted that the contribution can be demanded only from that tortfeasor who is “liable” in respect of the plaintiff’s damage. Thus, if X and Y jointly commit a tort against A, and if X has been made to pay for the whole amount of the loss to A, X can claim contribution from Y, provided that the circumstances are such that X and Y both were answerable to A for that wrong. If In this illustration, for some reason, Y could not have been made liable to A, X cannot demand any contribution from Y. The case of Drinkwater v. Kimber, explains, the point. There a lady was injured because of the combined negligence of her husband and a third party. She recovered the full amount of compensation from the third party. The third party could not recover any contribution from the husband as the husband could not be made liable towards his wife for personal injuries.
The amount of contribution which is a tortfeasor has to pay will depend upon his responsibility for the damage. Sec. 6(230 of the Act provides that ‘the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage.’
If, for instance, out of the two joint tortfeasors, A and B, who are equally responsible for the wrong. A has been made to pay damages for the whole of the loss, he can claim equal, i.e., 50% contribution from b. But, if it is found that their responsibility for the wrongful act was not equal, say A’s fault was 75% and B’s 255, A can claim only 25% contribution from B.
It has been noted above that the joint tortfeasors are jointly and severally liable to the injured party and the plaintiff any sometimes recover the whole of the loss from any one of them. There may be situations where the joint tortfeasor, who has been made to pay for the whole of the loss, may not be guilty at all and some other joint tortfeasor must fully compensate that one who has actually paid compensation, or in other words, one joint tortfeasor must indemnity the other. Even before the Law Reform Act, 1935, certain exceptions to the rule in Merryweather v. Nixan came to be recognized. If the situation so demanded, indemnity could be claimed by one of the joint tortfeasors from the other. In the case of Adamson v. Jarvis, one of the joint tortfeasors was entitled to claim indemnity from the other. In that case, the plaintiff, an auctioneer, sold certain goods, in good faith, on behalf of the defendant. It turned out that the defendant had no right to the goods and the true owner recovered compensation from the auctioneer. The auctioneer was held entitled to be indemnified by the defendant for the loss caused to the former.
In cases of vicarious liability, if one, who is not at fault, has been made to pay for wrong of the other, he can claim indemnity from the person for whose wrong he had been made answerable. Thus, if for a servant’s tor t committed in the course of employment, a master had to pay compensation, he can claim indemnity from the servant. Similarly, the agent must indemnity his principal if for the former’s wrong, the latter had to pay compensation. The agent or the servant has also got a similar right of indemnity against the principal or the master, if the act authorized is apparently lawful but subsequently turns out to be tortious, resulting in damage to the former. Indemnity can be claimed only by an innocent party, as was the position in Adamson v. Jarvis. The right of indemnity cannot be claimed by a person who knowingly does or authorizes the doing of an unlawful act.
The nature of liability of partners in a partnership firm is similar to that of the principal and agent. The Indian Partnership Act contains provisions similar to those discussed above. It provides that the firm should indemnity a partner in respect of certain payments made and personal liability incurred by him and a partner shall indemnity the firm for any lose caused to it by the wilful neglect in the conduct of the business of the firm.
Position in India – Independence and Joint Tortfeasors
In India, there is no statute corresponding to the Law Reform Act, 1935. The question is whether we are to follow the rule in Merryweather v. nixan, which did not provide any contribution between the joint tortfeasors or the position as stated in the Law Reform Act, 19356. In some cases, the courts in India have applied the rule in Merryweather v. Nixan, whereas in some other cases, the courts have expressed their doubt about its applicability in India. The High Courts of Nagpur, Calcutta and Allahabad have clearly indicated that the rule in Merryweather v. Nixan is not applicable in India.
In Khushalran v. Bapurao Ganpat Rao, five persons were partners in a partnership firm. They, not as partners but as separate persons, executed an agreement dated 30th August, 1925, which gave them the right to cut timber in a forest on certain terms. The proprietor of the forest also executed the licence on that date, but the sanction for the same had not been obtained. Subsequently, the grantor of the licence obtained the leave to grant the lease but on certain stated conditions. He, accordingly, requested those partners to execute a new agreement. Finding the terms of the proposed agreement to their disadvantage, they refused to enter the same. Then, they were asked to stop cutting, but they continued the same for 16 months. Thereupon, the landlord sued the partners for trespase and obtained a decree against them. Execution of the decree was taken out against the plaintiff alone. After paying the whole amount, he sued his co-defendants for contribution but he was met with the defence of the rule in Merryweather v. Nixan.
Held, that the rule in Merryweather v. Nixan did not apply in India and the other partners were bound to pay their share of the contribution to him. It was observed; “… the rule in Merryweather v. Nixan does not apply in India. In India, where one of judgment-debtors pays off the decree debt, he has right to contribution from his co-judgmentdebtors to what extent and in what proportion may depend upon circumstance…It may perhaps not be irrelevant to ask why by punishing one wicked man, in such a way, one should make a present to the other wicked man, lhis co-debtor, especially if it should appear that the second is really the responsible person, the ringleader and so forth.’
After considering various Indian and English authorities on the point, the Allahabad High Court was of the opinion that the rule in Merryweather v. Nixan, being against the principle of justice, equity and good conscience, should not be considered to be applicable in India. In Dharni Dhar v. Chandra Shekhar, Wali Ullah, J. observed.
“I am quite clear in my mind that the rule laid down in the English case of Merryweather v. Nixan 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. Further, after a decree has been obtained against two or more tortfeasorrs, which imposes a joint and several liability upon each one of the judgment-debtors, if one of them is made to pay the entire amount of the decree, justice and fair play obviously require that he should be able to share the burden with he compeers, i.e., the other judgment-debtors. In enforcing a right to contribution, such a judgment-debtor bases his claim in reality on the fact that the common burden has been discharged by him alone…there decree itself creates a joint debt and each one of the judgment- debtor must, on principle, share the burden…it seems to me, therefore, clear that neither on principle nor on authority, the rule in Merryweather v. Nixan is fit to be recognized and followed in India”