Dr. Vaishali V.

Jadhav1
Joint tortfeasors, Joint and Several liabilities
Short note:

a. Joint tortfeasor
b. Merryweather v. Nixon
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Tortfeasor: a person who commits a tort/wrong-doer (e.g., trespasser)
Joint liability: It means that there is more than one defendant for the plaintiff’s injury or
damage.
Several liabilities: It is the case when more than one defendants’ are individually liable for the
damage to the plaintiff.

When two or more persons commit some tort against the same plaintiff, they may either be
independent tortfeasors or joint tortfeasors. The concept is unique and complex.

Independent Tortfeasors: When the acts of two or more persons, acting independently concur
to produce a single damage, they are known as independent tortfeasors. For e.g., Two motorists
were driving their vehicles in opposite directions, collided and a pedestrian sustained injuries
getting crushed between two motor-cars. These two motorists are called independent tortfeasors.

In Koursk case (1928), Two ships named Koursk and Clan Chisholm collided with one another.
As a result, the ship Clan Chisholm collided and sank another ship Itria. The owners of the
damaged ship Itria recovered the damages from Clan Chisholm for the loss suffered but were not
fully satisfied as the liability of the owners of Clan Chisholm was limited to the lesser amount.

1
Associate Professor, Yashwantrao Chavan Law College, Pune
Subsequently, owners of Itria filed a suit against the Koursk also. It was held that Koursk and
Clan Chisholm were not joint tortfeasors but only independent tortfeasors. The liability of the
independent tort was held to be several and not joint and therefore, there could be as many
causes of action as the number of tortfeasors. Thus, an action against one of them was not bar to
an action against the other.

Joint Tortfeasors: When two or more person commits a wrongful act which results in a single
injury, not independently of one another but caused in furtherance of a common design, they
are known as joint tortfeasors.
There must be some connection between the act of one alleged tortfeasor and that of the other
tortfeasor.
The words of Sargent L.J 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 e.g. When A, B and C are engaged in a common pursuit and one of them in course of an
furtherance of that commits a tort, then A, B and C all of them will be considered as joint
tortfeasors and hence liable.
Thus, to be considered joint tortfeasors, the parties must act together in committing the wrong, or
their acts, if independent of each other, must unite in causing a single injury/damage. All who
actively participate in the commission of a civil wrong are joint tortfeasors. Persons responsible
for separate acts of NEGLIGENCE that combine in causing an injury are joint tortfeasors. Hence
the consequence of joint tort is joinder of defendants in the same action.
A and B trespassed into the premises of C with a joint intention to threat C. Here A and B are
joint Tortfeasors.

Hence, we can say that joint tortfeasors are with joint and several liabilities in a tort action for
the same injury to the same person or property.
Cases:
Brook v. Bool, [1928] 2 K.B. 578
In this case A and B entered Z's premises to search for an escape of gas. Each one of them, in
turn, applied naked light to the gas pipe. A’s application resulted in an explosion, causing
damage to Z’s premises. It was held that even though the act of A alone had caused explosion,
both A and B were considered to be a joint tortfeasors and does held liable for the damage.
The Palghat Coimbatore Transport Co. v. Narayanan and Others (1939) 1 MLJ 143
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 the Fatal Accidents Act, it was
held that the owners of both the bus companies would be liable.
Distinction between joint tortfeasors and independent tortfeasors:
Joint Tortfeasors Independent Tortfeasors
Concurrence in mental as well as ultimate Mere concurrence in the ultimate result of
consequences the wrongful act independently done.

Single cause of action, which come to an end Number of cause of actions as number of
after judgment. Judgment acts as bar to an independent tortfeasors.
action against the remaining joint tortfeasors.
Exceptions- Amendments.

Release of one of the joint tortfeasors results in

the release of all others Separate caution of action against one of the
independent tortfeasors and hence no bar to
an action against others

I. Joint liability may arise in following circumstances:

Persons having certain relationships are also treated as tortfeasors.
a. Principal-Agent Relationship (Agency)
b. Master-Servant Relationship Vicarious Liability
c. Partners in a Partnership firm
d. Joint or common action

II. Nature of joint tortfeasors: Three important Propositions

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.
a. The liability of joint tortfeasors is joint and several:
The liability of wrongdoers is a joint and several liabilities so that each is liable for the whole
damage. The plaintiff (injured party) has the option of suing one or more or all of the
tortfeasors, either individually or as a group. If the plaintiff is awarded damages, each joint
tortfeasors is responsible for paying a portion of the damages, based on the percentage of the
injury caused by his or her negligent act. The defendant who pays more than his or her share
of the damages, or who pays more than he or she is at fault for, may bring an action to
recover from the other culpable defendants under the principle of contribution. Other
tortfeasors shall have to contribute the amount paid by that tortfeasor and shall have to
indemnify him/her.
Sasidharan v. Sukumaran 2006 ACJ 945 (Ker)
In this case wrongly parked truck was hit by a bus driven rashly and negligently and a person
sitting in the truck sustained injuries. The 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.
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.
b. A release of one of several tortfeasors releases all the others:
The reason liable are behind this principle has been that the cause of action, which is one and
indivisible. Having released one, all persons liable otherwise also are ipso facto released. The
rule is applicable when the release is under seal or by way of accord and satisfaction.
Cutler v. McPhail (1962) The defendant, a resident wrote a defamatory letter containing
contents against the plaintiff and sent two copies one to “The Villager” magazine of Pinner
Association and another to the officer of Pinner Association. The Villager magazine
published the letter. The plaintiff sued the editor of the villager magazine, the officials of
Pinner Association and the defendant for defamation. The editor of the magazine and the
officials of Pinner Association compromised with the plaintiff and published apology in “The
Villager” and paid compensation amount as agreed upon. On this compromise the editor of
the magazine and the officials of the Pinner Association were acquitted from the charge
however the defendant was not acquitted. The defendant contended that the release of the
other joint tortfeasors amounted to be the release of him. The Queen’s Bench held that since
the release of the other joint tortfeasors extinguished the cause of action therefore it also
extinguished the cause of action against the defendant and he was released from the liability.

However, the release of a joint tortfeasor has to be distinguished from a mere covenant
not to sue anyone of them. The release of one of the joint tortfeasors releases all the
others from their liability, but a mere covenant not to sue anyone of them results in the
discharge of only that particular wrongdoer from liability, the joint action against others
still remain alive.
In India, the English rule on this point has been generally followed.
Khusro v. N. A. Guzder AIR 1970 SC 1468
In this case the plaintiffs filed a suit against various defendants for defamation. After the
plaint 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 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’s 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.
c. Single cause of action-Bar to a future action:
The cause of action against the wrongdoer being one and indivisible, a judgment obtained
against one or more of the wrongdoers will be a bar to a future action against the others,
even though the judgment may not be satisfied.
Later on the common law rule being debated unjust (although the liability was joint and
several however a judgment against one of them should bar the several remedy against
others) and to avoid the hardship to the plaintiff who could not recover the amount of the
decree if the joint tortfeasor sued was found insolvent, the nature of tortfeasors liability
has the been modified by the Law Reform (Married Women and Tortfeasors) Act, 1935.
 Sec. 6(1) (a) of the Act provided that an action against one or some of the tortfeasors is
no bar to an action against other tortfeasors, who would also have been held liable for the
same damage subject to the restriction (to discourage vexatious suit) that the amount of
damages recoverable shall not in the aggregate exceed the amount of damages awarded in
the first judgment.
Again this provision was replaced by enacting section 4, the Civil Liability
(Contribution) Act, 1978, which 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.
In India in the absence of legislation the higher courts are free to adopt the position
considered just in consonance with justice, equity and good conscience to permit more
than one action against various joint tortfeasors in India.

III. Rights of tortfeasors inter-se:

a. Contribution between joint tortfeasors:
At the common law, there was no contribution among joint tortfeasors, and a tortfeasor
who was forced to pay a whole or more than a proportionate share of the damages had no
claim against other or others for their shares. This principle was based on the maxim ex
turpi causa non oritur action i.e. no cause arises from an illegal act.
For e.g., If there were two joint tortfeasors A and B. A paid the compensation to the
plaintiff C. Can A recover half of the compensation from B as the share of B?
This was decided in negative in Merryweather’s case -Merryweather v. Nixon (1799)
Merryweather and Nixon were the joint tortfeasors in a case sued by one Starkey.
Merryweather paid 840 pounds as damages as a total satisfaction of the claim in the
Court. Both of them were discharged from the tortuous liability by the Court. Later,
Merryweather demanded Nixon to contribute 420 pounds towards Nixon‟s share, who
refused. The Court gave the judgment that Merryweather was not entitled to get the
contribution.
In another earlier English case, Everet v. Williams (1725) (Highwayman's Case)
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.

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:
i. The rule was not applicable in cases which involved negligence or where there
was an unintentional breach of law.
ii. 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.
iii. 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. (covered under section 62 of Companies Act 1956-old)
iv. 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.
The Merryweather’s rule continued for 136 years. However, the decision was criticized
by the jurists for a long time being against the principles of natural justice, equity and
good conscience. The rule in Merryweather‟s case was abolished by the Law Reform
(Married Women and Tortfeasors) Act, 1935 in England. Thereafter, the joint
tortfeasors has become entitled to share the contribution according to the ratio of their
fault. Now the rule is: A and B did a wrong against C. A paid Rs. 10,000/- to C. Both A
& B were discharged from the liability. There was 75% fault on A and 25% fault on B. A
can sue B for the recovery of Rs. 2,500/- from B.
In India in the absence of a statute like the English Law Reform Act, the ambiguity
continues and the Indian Courts had a conflicting opinion. In several cases the rule of no
 contribution as laid down in Merryweather’s case has been applied and in several other
cases the rule has not been applied and rejected being inconsistent with justice, equity
and good conscience.

b. Indemnity:
Indemnity means a formal legal acceptance of responsibility against damage or loss. It is
an obligation or duty of one person to indemnify any loss or damage which another has
incurred while acting at his request or for his benefit. It springs from contract express or
implied.
Khushalrao v. Bapurao Ganpatrao, AIR 1942 Nag. 52
Five persons were partners in a partnership firm. They, not as partners but as separate
persons, executed an agreement dated 30th Aug. 1925 with the proprietor of the forest to
cut the timber and take away the wood on certain terms. Subsequently the proprietor
requested the partners to execute new agreement. Finding the terms of the proposed
agreement to their disadvantage, they refused to enter the same. They were asked to stop
the cutting but they continued for 16 months. The forest owner sued them for trespass and
succeeded in getting a decree against them restraining their activities and also for the
compensation. Decree was executed against one of the five partners who paid the whole
compensation amount. Later, he demanded contribution from the emaining partners who
refused to pay. He then sued the four partners who pleaded the rule of Merryweather v.
Nixon‟s case as their defence.
The Privy Council gave the judgment in favor of the partner who paid the amount, and he
was indemnified from compensation by remaining partners. The Privy Council observed
the rule in Merryweather v. Nixon does not apply in India In India where one of
judgment-debtors pays off the decretal debt he has right to contribution from his co-
judgment debtors to what extent and in what proportion may depend upon circumstances.

Composite Tortfeasors - In England, there is a clear distinction between independent

Tortfeasors and joint Tortfeasors. In India, there is no such distinction, and the Tortfeasors in
both the occasions is called “Composite Tortfeasors.”
References:

1. Dr. R.K Bangia

2. Online Articles