Joint Liability – Liability of Joint Tortfeasors
Joint and several tortfeasors, the effect of judgment and release, and the right of contribution
In one minute
Sometimes more than one person causes the same harm. Each is then liable for the whole damage, and the victim can sue any one of them, or all, and recover in full. This is joint and several liability.
The wrongdoers may be joint tortfeasors, who act together, or several concurrent tortfeasors, whose separate acts combine. The one who pays may claim a share from the others. Exams ask for this as a short note or as a problem on co-owners or two drivers.
Exam focus
- Frequency: Rarely asked
- Usually asked as: Both (long answer and short answer)
Legal provision
- Order I, rules 1, 3 and 10, Code of Civil Procedure, 1908: persons may be joined as defendants where the right to relief arises from the same act or transaction. A claimant may sue one or all.
- Section 43, Indian Contract Act, 1872: in contract, any one joint promisor may be compelled to perform and may claim contribution from the others. Courts reason by analogy for tort, but the section applies to promises.
- English statutes: the Law Reform (Married Women and Tortfeasors) Act, 1935 and the Civil Liability (Contribution) Act, 1978 reformed the English rules on judgment and contribution. India has no equivalent Act.
- Motor Vehicles Act, 1988, sections 165 to 168: the Claims Tribunal can make an award against the owner, driver and insurer together or separately.
Meaning and definition
Joint tortfeasors are two or more persons who commit one wrong together, either by acting in concert on a common plan, or as master and servant, principal and agent, or partners. Each is liable for the whole harm.
Several concurrent tortfeasors are persons whose separate, unconnected acts combine to cause one indivisible harm. The leading example is two drivers, each negligent in a separate way, whose cars collide.
In both cases the victim can recover the full damages from any one. This is called joint and several liability. The word "joint" means all can be sued together. The word "several" means each can be sued alone for the whole.
Detailed explanation
Step 1: who are joint tortfeasors
- Concert. Persons who plan and carry out a tort together, such as two people who attack a rival.
- Agency and employment. Principal and agent, or employer and employee for one act. The employee is liable personally and the employer is vicariously liable.
- Joint breach of a joint duty. Persons who jointly owe a duty, such as co-owners of a vehicle.
- Partners. Partners are jointly and severally liable for a wrong done in the ordinary course of the firm's business.
Example. Two shopkeepers in Warangal agree to drive a rival trader out of the market. Together they attack him and destroy his signboard. Each is liable for the whole harm, including the part the other did with his own hands.
Step 2: joint tortfeasors and several concurrent tortfeasors
In The Koursk (1924), the English Court of Appeal drew the line. The owners of the steamship Itria were damaged by the negligence of two ships, the Clan Chisholm and the Koursk. They first recovered damages from the Clan Chisholm, then sued the Koursk. The court held that the two ships were several concurrent tortfeasors, not joint tortfeasors, because their acts were separate. A judgment against one did not bar the action against the other. The practical result for the victim, however, was the same: either owner could be made to pay the full amount.
Step 3: joint and several liability
- The victim may sue all the wrongdoers in one suit, or any of them in separate suits.
- He may recover the whole amount from any one of them, whatever that one's own share.
- He cannot recover more than the total damages. If one pays in full, the claim is satisfied.
In motor accident claims, the Supreme Court has used the term composite negligence for the case where two vehicles are both at fault. The claimant can recover the full compensation from either wrongdoer. In T.O. Anthony v. Karvarnan (2008), the Court explained that this differs from contributory negligence, where the claimant himself shares the blame.
Step 4: effect of a judgment against one
Under the old English rule in Brinsmead v. Harrison (1872), a judgment against one joint tortfeasor, even if unpaid, ended the claim against the others. This was unfair, because the judgment might be worthless. The English Act of 1935 changed the rule. The law now only prevents double recovery of the same loss.
Step 5: release and settlement
- A genuine release of one joint tortfeasor, given for payment, discharges the others, because there is one cause of action.
- A covenant not to sue one, which reserves rights against the others, does not discharge them.
- The words and the intention of the settlement decide which it is.
Step 6: contribution among wrongdoers
The old rule in Merryweather v. Nixan (1799) denied any contribution between joint tortfeasors. A wrongdoer forced to pay all could not recover from the others. Modern law gives him a right of contribution, shared by degree of fault.
Example. Two lorries on a highway near Vijayawada collide because both drivers were careless, and a scooter rider is killed. The family recovers Rs 10 lakhs from the owner of the first lorry. That owner can claim a fair share from the owner of the second lorry, in proportion to the share of fault.
- The victim cannot recover more than the total damages.
- A wrongdoer who pays in full has a right of contribution against the other.
- The old rule that a wrongdoer cannot claim contribution (Merryweather v. Nixan) no longer applies.
Don't confuse: joint and several concurrent tortfeasors
Both are liable for the whole, but the connection between the wrongdoers differs.
| Point | Joint tortfeasors | Several concurrent tortfeasors |
|---|---|---|
| Connection | Common design, agency, employment or joint duty | None. Separate acts that combine |
| Cause of action | One, shared by all | Separate against each |
| Liability to the victim | Joint and several, for the whole | Joint and several, if the harm is indivisible |
| Release of one | Releases all, unless it is only a covenant not to sue | Does not release the others |
| Example | Two men who attack a rival together | Two careless drivers whose cars collide |
Inside joint tortfeasors. A landlord and his agent in Nellore together lock out a tenant. Both took part in the same wrong, and each is liable for the whole damage.
Just outside it (several concurrent). Two factories on a river pour waste into it without any link between them, and the combined waste kills a farmer's fish. They are not joint tortfeasors, but the farmer may still recover the whole loss from either if the harm cannot be divided.
Common mistakes
- Treating every co-owner as a joint tortfeasor. Only those who took part in the wrong are liable.
- Saying the victim must sue all the wrongdoers. He may sue any one for the whole.
- Saying the victim can recover from each in full. He cannot recover more than the total loss.
- Forgetting the right of contribution among wrongdoers.
- Treating a covenant not to sue as a release. It does not discharge the other wrongdoers.
Apply it
Problem
A scooter rider in Guntur is hit and badly injured. A tribunal finds that both a bus driver and a car driver were negligent, in equal measure. The rider's claim is Rs 8 lakhs. The rider recovers the whole amount from the bus owner. What can the bus owner do?
Issue. May the bus owner recover a share from the car driver?
Rule. Several concurrent tortfeasors causing one indivisible harm are jointly and severally liable. A wrongdoer who pays more than his share has a right of contribution, based on degree of fault.
Application. The bus owner paid the whole amount, though only half was his share. The car driver was equally at fault.
Conclusion. The bus owner can claim Rs 4 lakhs from the car driver as contribution.
Leading case laws
- Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co. (P) Ltd. (1977)
Facts. A company's manager was driving the company's car when it hit a tree. A passenger died. The claim was against the driver, the company and the insurer.
Principle. The Supreme Court held the company vicariously liable with its manager. It fixed the insurer's liability only up to the limit in the policy.
Why it matters. It shows employer and employee answering together, with a separate limit for the insurer.
- State of Rajasthan v. Vidyawati (1962)
Facts. A government jeep ran down a pedestrian.
Principle. The State was held liable for its driver's negligence along with the driver.
Why it matters. It shows a master and servant who are both answerable for the same act.
How to write this answer in the exam
5-mark answer
- Define joint tortfeasors, with examples.
- Define several concurrent tortfeasors, with The Koursk.
- State joint and several liability.
- State the right of contribution.
10-mark answer
- Meaning and kinds of wrongdoers.
- Joint and several liability and its effect on the victim.
- Effect of judgment against one: Brinsmead v. Harrison and the modern rule.
- Release and covenant not to sue.
- Contribution: Merryweather v. Nixan and the modern right.
- Composite negligence in motor claims.
- Comparison table and conclusion.
Key points to remember
- Joint tortfeasors act together. Several concurrent tortfeasors act separately and their acts combine.
- Both are jointly and severally liable. The victim may recover the whole from any one.
- The victim cannot recover more than the total loss.
- An unsatisfied judgment against one does not bar a claim against the others.
- A release of one joint tortfeasor discharges all. A covenant not to sue does not.
- A wrongdoer who pays more than his share can claim contribution.
Quick self-test
1. What is the difference between joint tortfeasors and several concurrent tortfeasors?
Joint tortfeasors act together under a common design, agency or employment. Several concurrent tortfeasors act separately, and their acts combine to cause one harm.
2. What does joint and several liability mean for the victim?
The victim may sue all the wrongdoers together or any one of them, and recover the whole loss from one.
3. Does a wrongdoer who has paid in full have any remedy?
Yes. He has a right of contribution from the other wrongdoers, according to their share of fault.