TORT 121 Joint Tortfeasors and Independent Tortfeasors — Law of Torts Notes for Judiciary

Joint Tortfeasors and Independent Tortfeasors: One Tort Committed by Several, or Several Torts Producing One Injury

Joint tortfeasors commit one tort. Their acts are united by a common design, or by agency, or by a relationship which makes one answer for the other, or by a duty owed jointly. Independent tortfeasors commit separate torts whose consequences happen to converge on the same plaintiff and the same damage. The liability is joint and several in both cases where the damage is indivisible, and that shared result conceals a series of differences which matter at common law and in the pleading.

1. The Comparison

	Joint tortfeasors	Independent tortfeasors
How they arise	A common design; agency; vicarious liability; a duty owed jointly	Separate and unconnected acts which happen to cause the same damage
Number of torts	One	Several
Number of causes of action	One	One against each
Liability	Joint and several	Several, and joint and several where the damage is indivisible
Judgment against one, at common law	Barred a further action against the others, even if unsatisfied	Did not bar an action against the others
Release of one, at common law	Released all	Did not release the others
Damages	A single sum, the same against each	May differ against each, according to the damage each caused
Survival and limitation	Run together, the cause of action being one	Run separately against each
Example	Two men who together pull down a chimney; a master and his servant	Two drivers whose separate negligence causes one collision

2. When Tortfeasors Are Joint

Where they act in furtherance of a common design. The act of one in pursuance of the common purpose is the act of all, and it is immaterial that the immediate injury was inflicted by one of them alone.
Where one is the agent of the other, the principal and the agent are joint tortfeasors in respect of a tort committed within the authority.
Where one is vicariously liable for the other, as master and servant, or as an employer for an independent contractor in the non delegable cases: TORT 047 and TORT 049.
Where they are under a duty owed jointly, as partners in respect of a firm's obligations, or joint occupiers in respect of the state of premises.
Brook v. Bool, [1928] 2 KB 578 is the standard illustration of common design. Two men searching for a gas leak each applied a naked light to the pipe in turn; the explosion followed from one man's light, and both were held liable, the search having been a joint enterprise.

3. When They Are Independent

Their acts are separate and there is no concert between them. Neither authorised, procured or participated in what the other did.
Where the damage is divisible, each answers only for the damage he caused, and the court apportions the injury itself rather than the liability. Two factories polluting one stream, each contributing a measurable part of the contamination, is the type case.
Where the damage is indivisible, each is liable for the whole, and the position becomes practically identical with that of joint tortfeasors so far as the plaintiff is concerned. This is what Indian law calls composite negligence: TORT 120.
The distinction between divisible and indivisible damage is therefore more important in practice than the distinction between joint and independent tortfeasors, because it is the one that decides whether the plaintiff recovers the whole from one defendant.

4. The Common Law Consequences, and What Became of Them

The old rule	Its rationale, and its present standing
Judgment against one joint tortfeasor barred an action against the others	The cause of action being one, it merged in the judgment, even if the judgment was never satisfied. The rule worked injustice where the first defendant proved insolvent, and it has been abolished by statute in England and is not followed in India
Release of one joint tortfeasor released all	For the same reason: one cause of action, one release. The rule survives in form but is avoided by a covenant not to sue, which reserves the plaintiff's rights against the others, and by an express reservation in the release itself
There was no contribution between joint tortfeasors	Merryweather v. Nixan, (1799) 8 TR 186. A court would not assist one wrongdoer against another. Abolished by statute in England, and held inapplicable in India
Damages had to be a single sum against joint tortfeasors	Following from the unity of the tort. The plaintiff could not have different sums against different defendants for one wrong

5. Contribution Between Tortfeasors

Merryweather v. Nixan laid down that there is no contribution between joint tortfeasors, on the principle that the courts will not assist a wrongdoer. The rule was always confined in England to cases of deliberate and conscious wrongdoing, and did not extend to a person who was not a conscious wrongdoer.
It was abolished in England by the Law Reform (Married Women and Tortfeasors) Act 1935 and is now governed by the Civil Liability (Contribution) Act 1978.
In India a Full Bench of the Allahabad High Court held in Dharni Dhar v. Chandra Shekhar, AIR 1951 All 774, that the rule in Merryweather v. Nixan is not applicable, and that a tortfeasor may recover contribution from another who is, or would if sued have been, liable in respect of the same damage. Contribution rests on justice, equity and good conscience.
Khenyei v. New India Assurance proceeds on the same footing, holding that apportionment inter se may be determined where all the tortfeasors are before the court, and that the tortfeasor who satisfies the award may recover contribution from the other: TORT 120.
An indemnity is different from a contribution. Where one tortfeasor is liable only vicariously or technically and the other is the actual wrongdoer, the first may recover the whole from the second and not merely a share, which is the basis of a master's right of indemnity against his servant: TORT 048.

6. How It Matters to a Plaintiff and to a Defendant

	For the plaintiff	For the defendant
If the damage is indivisible	Sue any one and recover the whole. There is no need to establish the share of each	The share of another wrongdoer is no answer to the plaintiff. The remedy is a contribution claim
If the damage is divisible	Each defendant must be sued for the portion he caused, and the evidence must establish it	Insist on the division. A defendant answers only for the harm he in fact caused
On settling with one	Take a covenant not to sue, or an express reservation, so that the claim against the others survives	A settlement that operates as a general release may benefit a co wrongdoer
On limitation	Time runs separately against independent tortfeasors, so a claim may be alive against one and barred against another	Plead limitation individually. It is not answered by the position of a co defendant

⚠ Why the old common law rules were so harsh, and what replaced them

The rules about merger, release and contribution all followed from a single proposition about pleading, that joint tortfeasors had committed one tort and the plaintiff had one cause of action. Once that was accepted, everything else was arithmetic: one cause of action could be sued on only once, so judgment against one barred an action against the others; it could be released only once, so a release of one released all; and a court asked to divide the burden between wrongdoers was being asked to adjust rights arising out of a wrong, which it declined to do. The results were indefensible. A plaintiff who obtained a judgment against an insolvent defendant lost his claim against the solvent one. A plaintiff who accepted a small sum from one wrongdoer in ignorance of the rule discharged the rest. And a defendant who had paid the entire loss caused by another's carelessness had no way to recover any of it. The modern law has dismantled all three, by statute in England and by decision in India, and what has replaced them is the straightforward position that the plaintiff recovers his loss once, from whoever caused it, and those who caused it divide the burden among themselves afterwards. The old rules still matter because the language of the cases is built on them, and because a general release given without thought can still, in form, discharge a wrongdoer the plaintiff never intended to release.

7. The Position Stated Shortly

1. Joint tortfeasors commit one tort; independent tortfeasors commit separate torts producing the same damage.

2. Tortfeasors are joint where they act in a common design, where one is the agent of the other, where one is vicariously liable, or where the duty is owed jointly.

3. Brook v. Bool illustrates common design: two men searching for a gas leak with naked lights were both liable for the explosion.

4. Independent tortfeasors answer only for the damage each caused where it is divisible, and for the whole where it is indivisible.

5. The distinction between divisible and indivisible damage matters more in practice than that between joint and independent tortfeasors.

6. At common law, judgment against one joint tortfeasor barred an action against the others and a release of one released all.

7. Merryweather v. Nixan denied contribution between joint tortfeasors, a rule confined to conscious wrongdoing and abolished by statute in England.

8. Dharni Dhar v. Chandra Shekhar holds the rule inapplicable in India, contribution resting on justice, equity and good conscience.

9. An indemnity differs from contribution: a merely vicarious or technical wrongdoer may recover the whole from the actual wrongdoer.

10. A plaintiff settling with one wrongdoer should take a covenant not to sue or an express reservation, so that the claim against the others survives.