Independent 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 eg. 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.

Joint tortfeasor

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 course 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.

Liability of independent tortfeasors

They are severally liable for the same damage due to an independent course of action.

In Thompson v. London County Council,

it was observed that “the damage is one but the cause of action which led to the damage are two”. Such tortfeasors are, therefore, severally liable for the same damage, not jointly liable for the same tort.

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 tortfeasors that resulted in the release of the other joint tortfeasors, there was considered to be only one cause of action in favor 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 first principle is that the liability of wrongdoers is joint and several i.e. each is liable for the whole damage. The injured may sue them jointly or separately.
The second principle was laid down in the case of Brinsmead v Harrison, where it was held that a judgment obtained against one joint wrongdoer released all the others even though it was not satisfied.
The third rule was laid

in the case of Merryweather v Nixon,

where it was held that in common law, no action for contribution could be sustained by one wrongdoer against another, although one who sought a contribution might have been compelled to pay the full damages. The reason alleged for this rule was that any such claim to the contribution must be based on an implied contract between the tort-feasors and that such a contract was illegally concluded with a view to committing an illegal act.

But the above rules were virtually abolished by the Law reforms Act, 1935 and the Civil Liability Act, 1978. The first rule in Brinsmead case being unjust, was abolished by the Act 1935 and therefore by the Act of 1978 which now provides that judgment recovered against any person liable in respect of any debt or damage should not be bar to an action, or to the continuance of an action, against another person who is jointly liable with him with respect to the debt and damage.

The second rule in Merryweather case is that a tortfeasor who has been held liable cannot recover contribution from other joint tortfeasors, being unjust, has also been abolished by the Act of 1935 which, as per section 6(1), provides that a tortfeasor who has been held liable to pay more than the share of the damages, can claim contribution from the other joint tortfeasors.

The third unjust rule was created by section 6(1)(b) of the Law Reform Act, of 1935 that if successive actions are brought, the amount of damages recoverable shall not, in the aggregate exceed, the amount of damages awarded in the first judgment. This rule, being unjust has now been repealed and replaced by section 4 of the civil liability Act, 1978 which now disallows the only recovery of cost in the subsequent suits, unless the court is of the opinion that there was a reasonable ground for bringing the action.

Position in India

In India, there is no statutory law on joint tortfeasors’ liability. As stated above, in England the Law Reform Act, 1935 and the Civil Liability Act 1978, have virtually brought the position of joint- tortfeasors on par with the independent tortfeasors.
The question therefore arises, should the Indian courts follow the common law on joint tortfeasors which was laid down in Brinsmead and Merryweather cases and was prevailing in England prior to 1935 or the law enacted by the British Parliament in 1935 and 1978? Up to 1942, the courts in India had followed the law as laid down in Brinsmead and Merryweather cases, but in some cases, the courts expressed doubts about its applicability in India.

The Supreme court of India, in Khushro S. Gandhi v. Guzdar,

refused to follow the common law of England. The fact was that in the suit for damages for defamation, one of the defendants had tendered an apology to the plaintiff and the court had passed a compromise decree between the plaintiff and the defendants who tendered an apology. When the plaintiff wanted to continue the suit against the other defendants, it was contended by the defendants that the compromise decree released all other defendants from their liability. Rejecting the contentions of the defendants, the court held that in the case of joint tortfeasors, in order to release all joint tortfeasors, the plaintiff must receive full satisfaction or which the law must consider as such from a tortfeasor before other joint tortfeasors can rely on accord and satisfaction. The rule which is in consonance with justice, equity and good conscience will convince only that type of liability of tortfeasors as joint and several.

Liability of Joint Tortfeasors

Liability of joint tortfeasors arises in three circumstances and they are:
Agency
When one person is authorized by another person to do work on his behalf then any tort committed by that person, the agent then principal who is authorizing the work will jointly and independently be held liable. When a tort is committed by an agency then both principal and agent are considered as joint tortfeasors. When any partner commits tort during the course of the business, then all other partners are also considered as joint tortfeasors.
Vicarious Liability
When a person is liable for the tort committed by another person under special circumstances, the liability is joint and both are joint-tortfeasors. Thus, when a servant commits a tort in the course of employment, the master can be made liable along with the servant as a joint-tortfeasors.
Joint Action
Where two or more persons join together for common action then all the persons are jointly and severally liable for the tort committed in the course of action.

Tortfeasors Defences

An individual or entity accused of committing a civil mistake basically has three options for defending their actions. These tortfeasor defenses include:

Consent and Waiver

A tortfeasor (defendant) may defend his position in a civil lawsuit if the accuser (defendant) has been explicitly warned of the risk or danger of engaging in the harmful activity. This defense is referred to as the legal maxim

volenti non fit injuries, which means “no injury is done to a consenting person.”

This tortfeasor defense usually relies on signed waivers of liability.

Comparative Negligence

In comparative negligence, tortfeasors may try to defend themselves by claiming that the complainant contributed to his own damage by committing acts of recklessness or negligence. A similar concept called “contributory negligence” often results in the court assigning a percentage of fault to each party, which ultimately dictates the percentage of financial responsibility for which each party will be held accountable.

Illegality

Where at the time of the injury, the complainant committed an illegal act for which he was seeking compensation, the defendant’s liability may be reduced, or entirely eliminated.

REMEDIES

The law of contribution says that Y claims to share the liability to X with others was based on the fact that they were subject to a common liability to X, whether equally with Y or not. The words in respect of the same damage emphasized the need for one loss to be allocated among those liable. The amount of the contribution recoverable from any person shall be fair and equitable, taking into account the extent of his responsibility for the damage. The court may exempt any person from the liability to make a contribution or direct that any person’s contribution amounts to full compensation.
The plaintiff fell down a hole which had been left uncovered by the negligence of a contractor employed by the defendant to carry out certain works on the premises on which the plaintiff had come. It was held that the contractor who was added as a third person to the suit was liable to contribute one-half of the damages.

Joint and multiple liabilities is a system that protects the complainants when one or more wrongdoers are unable to pay damages owed to the complainant. However, this can lead to disproportionate and unexpected results for tortfeasors.

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