Joint and Independent Tortfeasors, Contribution Between Them, and the Survival of Actions on Death

Two people may cause one damage in two quite different ways, and the difference decides how the plaintiff must sue. If they acted in concert, in pursuance of a common design, or if one is vicariously liable for the other, they are joint tortfeasors: there is one tort, one cause of action, and liability is joint and several, so the plaintiff may sue any one of them for the whole. If they acted separately and their independent wrongs happened to produce the same damage, they are independent tortfeasors: there are as many torts as wrongdoers, and each answers for the damage he caused. Separately, the death of a party raises the question whether the action survives at all, which Section 306 of the Indian Succession Act, 1925 answers.

The two kinds of tortfeasor, contribution between them, and what survives a death

1. Joint Tortfeasors

• They act in concert, in pursuance of a common design, so that the act of one is in law the act of all.
• Or one is vicariously liable for the other: master and servant, principal and agent, partners in a firm.
• Or they owe a common duty that both have broken, as where two occupiers are liable for the same nuisance.
• There is one tort and one cause of action, however many defendants there are.
• Liability is joint and several. Each is liable for the whole of the damage, and the plaintiff may sue any one, some, or all of them.
• One judgment satisfied discharges them all. The plaintiff may have only one satisfaction, though at common law the rule was that judgment against one barred a suit against the others, which the modern position has relaxed.
• A release of one releases all, because there is a single cause of action, though a covenant not to sue one preserves the plaintiff's rights against the rest.

2. Independent Tortfeasors

• They act separately, with no common design and no relationship making one answerable for the other.
• Their independent wrongs happen to produce the same damage. The classic case is two vehicles negligently driven that collide and injure a bystander.
• There are as many torts and as many causes of action as there are wrongdoers.
• Each is liable for the damage he caused, and where the damage is divisible the court apportions it.
• Where the damage is indivisible the practical result approaches that of joint liability, each being liable for the whole, but the causes of action remain separate.
• Separate suits lie, and a judgment against one is no bar to a suit against another, though the plaintiff may not recover more than his loss in total.
• A release of one does not release the others, because the causes of action are distinct.

3. The Two Compared

4. Contribution Between Tortfeasors

• The rule was abolished in England by the Law Reform (Married Women and Tortfeasors) Act, 1935, and the position is now governed by the Civil Liability (Contribution) Act, 1978.
• In India the rule has never been applied as an absolute one. The Indian courts have treated it as confined to cases where the wrongdoer knew that he was doing an unlawful act, and have allowed contribution between tortfeasors who were not conscious of any wrongdoing.
• The reasoning is that the maxim ex turpi causa non oritur actio has no application where the defendant did not know that his act was wrongful, as where liability is vicarious or arises from inadvertence.
• Indemnity is a separate question from contribution. A master held vicariously liable may recover an indemnity from the servant whose tort it was, and a person liable only technically may recover from the person actually at fault.
• Section 69 of the Indian Contract Act, 1872 has been invoked in aid, on the footing that a person who pays money which another is bound by law to pay is entitled to be reimbursed.

5. Survival of Actions: Section 306

• The maxim behind it is actio personalis moritur cum persona: a personal action dies with the person.
• The section reverses the maxim as a general rule, and then preserves it in three classes of case.
• The reference to the Indian Penal Code must now be read as a reference to the corresponding provision of the Bharatiya Nyaya Sanhita, 2023, by the ordinary rule of construction as to repealed enactments.
• "Personal injuries not causing the death of the party" is the limb that does most of the work: a claim for personal injury abates on the death of the injured person, unless the death was itself caused by the wrong.
• Claims for damage to property survive, as do claims already reduced to a decree, and claims where the estate of the deceased has been enriched by the wrong.

6. What Survives and What Does Not

7. The Statutory Exceptions

• The Fatal Accidents Act, 1855 gives an action where death is caused by a wrongful act, neglect or default such as would, if death had not ensued, have entitled the injured person to sue. The action is for the benefit of the wife, husband, parent and child, and the damages are for the pecuniary loss the dependants have suffered.
• It is not a survival of the deceased's own action, but a fresh cause of action created by statute for the benefit of the dependants. That is why the deceased's own contributory negligence reduces it, and why a settlement by the deceased in his lifetime may bar it.
• The Legal Representatives' Suits Act, 1855 operates on the other side, allowing certain actions to be brought against the executors or administrators of a deceased wrongdoer, within the limits it prescribes.
• Section 140 of the Indian Succession Act, 1925 and the Motor Vehicles Act, 1988 provide further routes in their own fields, the latter through the claim for compensation by the legal representatives.

8. A Recent Development on Section 306

9. The Position Stated Shortly

1. Joint tortfeasors act in concert in pursuance of a common design, or one is vicariously liable for the other.

2. There is one tort and one cause of action, and liability is joint and several, so each is liable for the whole damage.

3. The plaintiff may sue any one, some or all of them, and one judgment satisfied discharges them all.

4. Independent tortfeasors act separately, and their independent wrongs happen to cause the same damage.

5. There are as many torts and causes of action as wrongdoers, each is liable for the damage he caused, and judgment against one is no bar to a suit against another.

6. Merryweather v. Nixan laid down that there is no contribution between joint tortfeasors; England abolished the rule in 1935.

7. In India the rule has been confined to cases where the wrongdoer knew he was doing an unlawful act, and contribution has been allowed where he did not.

8. Section 306 of the Indian Succession Act, 1925 makes demands and rights of action survive to and against executors and administrators, as a general rule.

9. It excepts defamation, assault as defined in the penal law, other personal injuries not causing death, and cases where the relief would be nugatory.

10. The Fatal Accidents Act, 1855 gives the dependants a fresh statutory cause of action where death was caused by a wrongful act, and in May 2026 the Supreme Court referred the scope of Section 306 to the Law Commission of India.