Joint and Several Tortfeasors in Torts

The concept of Joint Tortfeasors

All persons who aid, or counsel, or direct or join in the committal of a wrongful act, are joint tortfeasors. In other words when two or more persons unite to cause damage to a third person then they shall be called as joint tortfeasors. Joint tortfeasor in itself signifies the combined liability to wrongdoers in case of civil wrong. It is said that each tortfeasor in case of joint liability shall only be liable to pay for his amount of damage caused that means the compensation of damage gets divided among the tortfeasors as per the respective losses caused by them.

The principal of contribution also states that in case a person has already paid for more than his share to the plaintiff then, he later, can recover the amount, which he was earlier not liable for, from the other tortfeasor.

Joint Tortfeasors in India

In India there is no statutory law that specifically talks about the joint liability of tortfeasors but the courts here in India have followed the law as laid down in Brinsmead and Merryweather cases, but in some cases, the courts expressed doubts about its applicability in India.

The Supreme Court of India, in Khushro S. Gandhi vs. Guzdar, refused to follow the common law of England that originally talked about principals and rules such as each tortfeasor must be liable for whole damage and not individually. They refused this. The court held that in the case of joint tortfeasors, in order to release all joint tortfeasors, the plaintiff must receive full satisfaction or which the law must consider as such from a tortfeasor before other joint tortfeasors can rely on accord and satisfaction.

Instances of Liabilities of a Tortfeasors

1. Agency- when one person acts on behalf of some other person, he is said to be the agent of such person. In cases of agent-principal when a tort is committed by an agent under the course of his business then the principal will be jointly liable along with the agent. And both of them will constitute joint liability
2. Vicarious liability – when a person is liable for the tort that is committed by another person, the liability of both of them is combined together as joint liability. For example the tort committed by a servant shall not be independent; it will always constitute the joint liability of the master also. Therefore they both shall be joint tortfeasors
3. Joint Action- when two or more persons physically commit an act which is a civil wrong, they both are jointly and severally liable for the act.

Difference between Joint and Several Liabilities

 When we talk about the concept of joint tortfeasor, it is often read as jointly and severally liable but the thin difference between the two is barely known to people. Jointly means both the parties have joint liability, of the offence. Meaning that each one of them shall be equally and wholly liable for the offence committed by them and shall take the full responsibility together. In cases of joint liability one or both of the parties can be sued for full obligation.  But in the cases of several liabilities the share of responsibility is divided, and the parties are only responsible for their share of the wrong and not responsible for the share of the wrong committed by the other party.

In torts, a claim against a party with joint liability may or may not include all the parties. If the plaintiff by default leaves someone out, then there is no remedy to re-compensate from the remaining parties, as the defendant is jointly as well as wholly liable to pay compensation for the wrong that is not even committed by him. But in the cases of several liabilities, this gap is covered. It does not matter if a joint tortfeasor is covered in the suit or not, he can still be sued later by the defendant to re-compensate him for the extra that he has beared. The other party can be sued by the defendant in this case later. Thus several liabilities amplify the course of justice and divide the share of joint liability in torts.

Conclusion

The laws and concept related to joint tortfeasors and what is exactly the difference between jointly and severally liable. This distinction was very important in determining the contribution theory and who can or cannot seek contribution from remaining tortfeasors. The analysis gave us a clear picture of how severally liable agreement can give the defendant , the opportunity to seek contribution from the ones who were jointly liable, but were not sued by the plaintiff (due to any reason) and the concept of jointly liable does not allow this and creates a gap between justice and equity, fairness.

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Author Details: Riddhi Rahi [Student, UPES, (School of law), Dehradun]