Joint Tort-Feasors

1.Introduction

When two or more persons unite to cause damage to another person, then
they will be liable as joint tort-feasors. All those who actively participate
in the civil wrong commission are joint tort-feasors. Based on the
percentage of damage caused by his negligent act, each joint tort-feasor is
responsible for paying a portion of the compensation granted to the
complainant. According to the principle of contribution, the defendant
who pays more than his share of the damages, or who pay more than he is
at fault, may bring an action to recover from the other defendant.

Illustration- The claimant has the right to recover the damages from both the
defendants, if X and Y are found to be at fault.

According to Glanvile Williams, it will be appropriate use the term

‘concurrent tortfeasors’ for both, i.e. joint tort-feasors as well as the
independent tortfeasor because the wrongful acts of both these types of
tortfeasors run concurrently resulting into a single damage or injury.
Mental concurrence is the main characteristic of joint tort-feasors. Where
one person has planned an act while the other has committed it, both of
them would undoubtedly be joint tort-feasors cause of prior meeting of
mind.

2. Certain relationships which make persons joint tort-feasors

1. Principal and Agent- If an agent acting under the authority of his

principal commits a wrongful act which is a tort, both agent and the
principal will be joint tort-feasors and they will be held jointly
liable for damages caused by the wrongful act- In Lloyd v. Grace
Smith & Co., (1912).
2. Master and Servant-The existence of master-servant relationship
also makes the master a joint tort-feasor for the wrongful act of his
servant done in course of his employment based on the principle of
vicarious liability.
3. Partners of firm-The liability of partners of a firm is joint and
they are all treated as joint-tortfeasors for a tortious act committed
by any one of them in course of firm’s business.
4. Joint or common action-Persons who join for some common
action or purpose are held to join tort-feasors in case any wrongful
act results in pursuit of that action causing damage to someone.
In Petric v. Lamount (1841), it was held that for a tort committed
by a lessor, lessee cannot be joined as a tort-feasor unless it is
shown that by taking the lease he had encouraged the commitment
of a tort and had made himself a joint tort-feasor in the wrongful
act.
In Pujamma v. G.Rajendra Naidu (1985), the liability of joint
tort-feasors is decided on the basis of their composite negligence
and not the contributory negligence which can only be contributed
by the plaintiff and not the defendants.
In Baxter v. Obacelo Pvt. Ltd (2003), distinguishing between
joint tort-feasors and several tort-feasors, C.J held that an employer
is liable vicariously for his servant’s tort as employer and employer
and servant are joint tort-feasors. But the parent or guardian of a
child whose personal negligence enables the child to commit a tort,
through he may be liable for the resulting damage, he is not a joint
tort-feasor with the child. “Joint tort-feasors are liable for the same
tort, whereas several concurrent tort-feasors are liable for the same
damage.”
 In Shashidharam v. Sukamaran (2006), a wrongly parked truck
was hit by a bus driven rashly and negligently and a person sitting
in truck sustained injuries. The court has held that booth the drivers
were equally negligent. The damage was caused not by joint action
but separate actions independent of each other the drivers of truck
and bus were not joint tort-feasors. Liability was not joint and
several, hence the injured cannot claim the entire amount of
compensation from one driver.
Two Principles Relating to Liability of Joint Tort-feasors

Prior to the passing of the Law Reform (Married Women and Tort-
feasors) Act 1935, (replaced by section 3 of the Civil Liability
(Contribution) Act.1978). Liability of joint tort-feasors was
governed by two common law principles which were follows: -
1. In case where there are more than one joint tort-feasors, if
the plaintiff had filed suit against only one or some of them,
he was debarred from bringing successive action against the
remainder. This principle was first laid down In Brinsmead
v. Harrison (1871).

The above rule was abolished by section 6 of the Law Reform

(Women and Tort-feasors) Act,1935- “Judgement recovered
against any tort-feasors liable in respect of that damage shall not
be a bar to an action against other tort-feasors who would, if
sued, have been liable as joint tort-feasors in respect of the same
damage’.

The successive suits were subject to following conditions-

i. The damages recoverable in the aggregate were not to

exceed those which were awarded in the first action
 ii. The plaintiff would not be entitled to cost in
successive actions unless he had reasonable ground to
justify them.
iii. Those who were successively sued could not claim as
matter of right that others who were also defendants in
the case.
2. The second common law principle regarding joint tort-
feasors was that where one of the joint-feasors had paid the
whole damages to the plaintiff, he no right to claim
contribution from others. This rule was for the first tie laid
down In Merrywealther v. Nixon (1871) and it is known as
the Merrywealther v. Nixon rule or the principle of non-
contribution among tort-feasors.

Joint Tort-feasor’s Liability may be Joint or several

The liability of joint tort-feasors may be joint or several, that is the

plaintiff has the choice to sue all the joint tort-feasors in an action
or he may sue only one of them or some of them. Each one of them
may be made to pay full amount of compensation. Even where the
plaintiff has sued all the joint tort-feasors jointly, the decree
obtained against all of them may be executed in full against any of
them. For example, where a tortious act has been committed by
agent, both the principal and the agent may be held jointly and
severally liable and the plaintiff may sue the principal and for the
whole damages although actual wrongdoer is the agent. Same is the
case where wrongful act is done by the servant; his master may
also be impleaded as joint tort-feasor and the full amount of
damages may be recovered from him.