Joint Tortfeasors

The three rules that follow from joint liability

1. The plaintiff may sue any one, some or all. He is not obliged to join everybody, and a decree against one does not by itself bar an action against another.

2. One satisfaction only. He may have judgment against several but may enforce it only until he is paid once. Accepting satisfaction from one discharges the others, because the law compensates a loss and does not multiply it.

3. Contribution is now allowed. The old English rule was that a wrongdoer who paid could not recover any part of it from his fellows. That rule has been abandoned, and a tortfeasor who has paid more than his share may recover contribution from the others, except where his own wrong was deliberate and he knew it to be wrong.

Release, and the trap in it

A release of one joint tortfeasor at common law released all of them, because the cause of action was one. A covenant not to sue one, reserving rights against the others, did not. The distinction is technical and is a favourite examination point: the substance is whether the plaintiff has given up the cause of action or merely promised not to enforce it against one person.

A worked example

A newspaper publishes a defamatory article written by a freelance journalist, on facts supplied by an informant who knew they were false.

The journalist and the newspaper are joint tortfeasors: the publication is one tort, and the newspaper is in any event answerable for the acts of those it publishes.

The informant, if he acted in concert with the journalist to publish, is a joint tortfeasor by common design; if he merely supplied the material without any such design, he may be an independent wrongdoer.

The plaintiff's choice. He may sue the newspaper alone, which is the defendant with money, and recover the whole. The newspaper may then claim contribution from the journalist and the informant.

Satisfaction. If the newspaper pays in full, the plaintiff cannot go on to recover the same damages again from the journalist.

And if the plaintiff releases the journalist in a settlement, he must take a covenant not to sue rather than a release, or he risks discharging the newspaper as well.

What it does NOT mean

It does not mean the plaintiff recovers twice. He is entitled to one satisfaction.

It does not mean each defendant pays only his share to the plaintiff. Apportionment operates between the wrongdoers, as Khenyei holds.

It does not mean contribution is always available. A deliberate wrongdoer who knew his act was wrong may be refused it.

It does not require all wrongdoers to be sued together. The plaintiff chooses.

Quick revision

1. Joint tortfeasors: common design, agency or vicarious liability, or breach of a joint duty.
2. Liability is joint and several: sue any one, some or all.
3. One satisfaction only; accepting satisfaction from one discharges the rest.
4. Contribution between tortfeasors is now allowed; the old rule denying it has been abandoned.
5. A release of one discharges all; a covenant not to sue does not.
6. Khenyei v. New India Assurance Co. Ltd, (2015) 9 SCC 273: in composite negligence liability is joint and several, the claimant may recover the whole from any one, and apportionment is between the tortfeasors.
7. Section 168 of the Motor Vehicles Act 1988 requires the Tribunal to award just compensation and to specify who pays it.

Test yourself

1. Who are joint tortfeasors, and what is the nature of their liability? Persons are joint tortfeasors in three situations: where one is vicariously liable for the tort of the other, as master and servant, principal and agent, or partners; where they act in furtherance of a common design, so that the act of one is the act of all; and where they are in breach of a duty owed jointly. Their liability to the plaintiff is joint and several. He may sue any one, some or all of them, may obtain judgment against several, and may recover the whole of his damages from any one, subject to the rule that he is entitled to only one satisfaction, so that payment in full by one discharges the others. As between themselves, contribution is now allowed, the old rule denying it having been abandoned, though a deliberate wrongdoer who knew his act to be wrong may be refused it.

2. Distinguish joint tortfeasors from independent tortfeasors and explain composite negligence. Joint tortfeasors commit one tort together, whether by common design, through vicarious liability, or by breach of a joint duty. Independent tortfeasors commit separate torts which happen to produce damage to the same plaintiff; where that damage is divisible each answers for his own part, and where it is one indivisible injury the Indian expression is composite negligence. In Khenyei v. New India Assurance Co. Ltd, (2015) 9 SCC 273, a claimant was injured by the composite negligence of the drivers of a trailer-truck and a bus, and the Supreme Court held that the liability of each to the claimant is joint and several, that he may recover the whole from any one of them without suing all or waiting for apportionment, and that apportionment is a matter of contribution between the wrongdoers which does not affect his right to full compensation.

3. What is the difference between a release and a covenant not to sue? A release is a surrender of the cause of action itself, and because the cause of action against joint tortfeasors is one, a release granted to one of them discharges all. A covenant not to sue is merely a promise not to enforce the claim against a particular person, leaving the cause of action alive against the others, so the plaintiff may still proceed against them. The distinction is technical but it decides cases, and a plaintiff settling with one of several wrongdoers must take a covenant not to sue, with an express reservation of his rights against the rest, if he intends to preserve his claim.