School of Law, ChristUniversity

LAW OF TORTS

SCOPE AND EVOLUTION OF JOINT TORTFEASORS

ANANTH KAMATH M
1416016
I BA.LLB ‘A’

Introduction
Joint tortfeasors are two or more people who negligently act as a group to cause damages to another person. Joint tortfeasors are generally all responsible for the damages, meaning all individuals involved in the action are equally responsible to paying for the damages regardless if someone had more involvement than another individual. The joint tortfeasors will be held collectively responsible for their actions.

Joint tortfeasor at common law

Joint tortfeasor rule is embedded in New Hampshire jurisprudence. The rule is that if two or more persons engage in an unlawful act, all are jointly and severally liable for damages caused by one of them and there is no apportionment of damages are allowed among the defendants

New Hampshire law imposes joint tortfeasor if defendants act in concert by entering into a civil conspiracy or abetting on another in commission of an unlawful act.

The elements are: * There should be two or more persons * An object should be accomplished * There should be an course of action * There should be one or more overt acts

Aims and Objectives of the paper –
To disclose and further explore the field or areaof joint tortfeasor and identify and study in detail the basic elements which are mandatory and essential. This paper also intends on drawing a hypothesis based on these essential features and also prove that in the absence of such features, the tort shall cease to exist and also specify the reasons for the same.

Scope of the Paper –
The paper has done extensive research on various casesand the itself and how it has considerably evolved with time and developed the prior primitive definitions of the essentials or the ground rules relating to joint tortfeasor and how the same has been a boon in ensuring that they rights of the parties are best protected.

Research TOPIC –
‘Scope and evolution of joint tortfeasor’

Research Methodology –
Doctrinal method of research based on the secondary data available on the various locations of the internet and books and citations from reports as well as journals. The facts of cases and so on have been taken from various website. The other relevant information and the comparison of the same have been as a reasonable inference collected from various other sources as well as others authors and their points of view

INDEPENDENT AND JOINT TORTFEASORS:
When two or more persons commit some tort against the same plaintiff, they may be either independent tortfeasors or joint tortfeasors

Independent tortfeasor: * When acts of two or more persons, acting independently, concur to produce a single damage, they are known as independent tortfeasors

Case laws: * There is one case wheretwo motorists driving negligently and coming from opposite direction collide and a pedestrian is crushed between two cars.Due to independent negligence of 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. * Liability of the independent tortfeasors was not ‘joint’ but ‘several’ and therefore there were as many causes of action as the number of tortfeasors. Action against one was not a bar against other.

JOINT TORTFEASORS: * Two or more persons are said to be joint tortfeasors when the wrongful act, which has resulted in a single damage, was done by them, not independently of one another, but in furtherance of a common design.

CASE LAW: * There is one case BROOK v. BOOL [1928], whereA and B entered Z’s premises to search for an escape of gas. Each one of them, in turn, applied naked fire to the gas pipe. A’sapplication resulted in an explosion, causing damage to Z’s premises. In this case even though 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 damages

DIFFERENCE BETWEEN JOINT AND INDEPENDENT TORTFEASOR

In Joint tortfeasor there should be a single cause of action and if a judgement is obtained against one of the joint tortfeasors, cause of action comes to an end; if plaintiff’s claim still remained unsatisfied he could not bring action against remaining joint tortfeasors but in Independent tortfeasor – as many causes of action as the number of independent tortfeasor.

CASE LAW:

A recent application of this rule in the case of Long and Brown, a 1995 decision of the Saskatchewan court of Queen’s Bench. In that case, the plaintiff in the underlying action suffered both property damage and personal injury when his car was hit by one owned by both Mr and Mrs Long and driven by Mr Long. He settled the property damage with his own insurer, who for reasons unknown, had him sign not just a property damage release, but a general release in favour of Mr Long. When he later sued both, the insurer defended the action on the basis that the release extinguished all claims.

Ultimately, Brown’s claim was settled and the matter that went to trail was whether the Long’s, through the insurer, should pay the loss or whether the release did extinguish the action in which case Brown’s own insurer would have to pay for getting their own insurer to sign the release that sold him down the river.

Joint and several liability:

This is the precedent joint and several liability clauses. The joint and several liability clauses are categorized as one of the boilerplate clauses within an agreement. In the absence of express words to the contrary the presumption is that the parties have assumed joint liability in relation to an obligation, the promisors have jointly promised to do the same thing. Each of them is liable for the performance of the whole but there are some exceptions also. The purpose of a joint and several is to make clear whether the parties have a joint obligation or have individual promises to do perform acts or obligations.

Jointly liable:

When two or more people are jointly liable, each is individually liable for whatever debt or loss they have together. For example, if spouses both sign for a mortgage loan, they are jointly liable for the amount of the loan. Thus, if one spouse passes away, the other is liable for any remaining amount. When two or more partners are jointly liable for a debt and a creditor sues one partner and receives the full amount, the creditor does not have a right to later sue the other partner but this rule is not followed in India.

Severally liable:

When two or more people are severally liable, all the tortfeasors have to give their share and compensate the damages. For example, if the partners of the firm obtain the loan from a lender and later fail to pay it they are severally liable means they are individually liable, the lender may only sue that partner who fails to pay the money.

The test for application of Doctrine:

Tortfeasors may be jointly or severally liable or may be both, the measure of the joint and several liability is whether the tortfeasors conduct produced an individual single damage.For example if two or more contractors build a house and it collapses the contractors and joint and severally liable similarly if a pedestrian is injured by two or more drivers when driving negligently the drivers are jointly and severally liable.
REFERENCE:

WEBSITES:

www.indiankanoon.com www.casebrief.com www.lexisnexis.com/uk/

Contribution between joint tortfeasors:

* The liability of joint tortfeasors is joint and several. Plaintiff has the right to only one of the joint tortfeasor to meet the whole claim.

* If one of the several tortfeasor had to pay the amount, not only for his own share of responsibility but others as well, how far he can ask other responsible with him to contribute for their share of responsibility, for an example if there is a equal share of responsibility in a tort which ‘A’ and ‘B’ commit against the person named ‘X’ and if the plaintiff ‘X’ decides to recover compensation from only ‘A’ a sum of rupees 2000 only ‘A’ is liable to pay rupees 2000,later ‘A’ cannot recover anything from ‘B’.

CASE LAWS: * There is a leading case “MERRY VS NIXAN” where there was one Starkey who brought an action against the plaintiff. He recovered the whole amount of £ 840 as damages only from him the present plaintiff, who thereon sued the defendant to recover from his share of contribution. It was held that the plaintiff was entitled to claim any compensation from the defendant as per the rule of contribution. * The joint tort feasor had been made to pay for the whole of the loss but may not be guilty at all and some other joint tort must fully compensate that one who has actually paid compensation, or in other words, one joint tortfeasor must indemnify the other.
LAW REFORM ACT [1935]:

According to the act the judgment recovered against any tortfeasor is liable in respect of that damage shall not be an action against any other person if he is sued they are liable for joint tortfeasor in respect of the same damage;.If there is more than one action brought in for the same damage by or on behalf of the person by whom it was suffered(the plaintiff) , or for the benefit of the estate, or of the wife, husband, parent or child, of that person, against the defendant (tortfeasors) are liable in respect of the damage suffered by the plaintiff. The sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given; and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the court is of opinion that there was reasonable ground for bringing the action.

In the proceedings of contribution the rule was changed in this reform act, i.e. the courtshall have the power to direct that the contribution to be recovered from any person shall amount to complete indemnity and the court shall have the power to exempt any one from the liability to the contribution. The judgement on case “MERRY VS NIXAN” was not applicable in India. The jointfeasors were bound to pay their share of contribution to the plaintiff.
After the law reform act 1935, there was a case Khushalrao v. Bapurao, A. I. R. (29) 1942 wherein it was decided by a two bench judge Stone C. J. and Vivian Bose J. In this case five men in partnership were granted a license to cut timber in a forest. The partners were operating under the license. The license was, however defective as the grantor of the license had failed to obtain the necessary sanction. The partners, however, were not to blame for that defect. A suit was brought against all the partners for damages and for trespass. It was decreed and a joint decree was passed against all the defendants. Thereafter proceedings were done against one of the defendants alone; He paid the whole amount and sued his co-defendants for contribution. The claim was contested mainly on the ground that the rule in Merry weather v. Nixon, was applicable and that there could be no contribution between joint tortfeasors but the rule which was decided under MERRY VS NIXON was not applicable in India, later it was held that all the partners have to equally pay the damages.

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