JOINT AND

INDEPENDENT TORT
FEASORS
Dr Anusree A
Associate Professor
Govt Law College
Ernakulam
 Person who commit tort is called Tort feasor
 When two or more persons commit some tort
against the same plaintiff, they may be
either independent tort feasors or joint tort
feasors
INDEPENDENT TORT FEASORS
 There is no concerted action on their part
 There is mere similarity of design on their
part and they act independently of one
another

Eg: two motorists driving negligently and

coming from opposite side colliding and a
pedestrian crushed between the two cars.
The drivers are independent tort feasors
Here there is only coincidence of separate acts
 INDEPENDENT TORT FEASORS
 The Koursk- due to independent negligence
of two ships one of the ship ran into and sank
a third ship.
 Held- They are not joint tort feasors but
independent tort feasors.
 The liability of independent tort feasors is
several and there may be as many cause of
action as the no. Of tortfeasors
 Since they are severally liable, action against
one of them will not bar action against the
other.
 JOINT TORT FEASORS
 When several persons join to commit tort,
they are called joint tort feasors
 There must be connection between act of
one tort feasor with that of another
 There must be concurrence in the act
causing damage and not merely a
coincidence of separate acts , which by their
conjoint effect cause damage.
 Their wrongful act must have been caused a
single damage and in furtherance of a
common design.
 When 2 or more persons engaged in a
common pursuit and one of them in the
course of that and in furtherance of that
commits a tort, both are liable as joint tort
feasors
 Brook v. Bool ( 1928)
 A & B entered Z premises to search for an
escape of gas. Each of them applied naked
light to the gas pipe. A’s application resulted
in an explosion. In this case, though A’s
application alone has caused an explosion ,
both A and B are considered as joint tort
feasors as they were engaged in a common
pursuit and held liable to the damage.
 THREE PROPOSITIONS AS TO
JOINT TORT FEASORS
1. The circumstances under which joint
liability arises
2. The nature of joint tort feasors liability
3. Contribution between joint tort feasors
 THE CIRCUMSTANCES UNDER
WHICH JOINT LIABILITY ARISES

By way of relationship
• Principal and agent
• Master and servant
• Partner and partnership firm

By joint or common action

 THE CIRCUMSTANCES UNDER WHICH JOINT LIABILITY ARISES

Agency Vicarious liability Joint or common action

• When one employs, • In the circumstances in • Persons join together in
authorises or procures which vicarious liability some form of common
another to commit a tort arises , both are deemed to action together become
law imputes the wrong to be joint tort feasors responsible for the tort
both of them and the • Master- Servant and partner committed by them,
principal and the agent are and Partnership firm irrespective of the part
jointly and individually played by each of them
responsible for the act of • Arneil v. Paterson (1913)- 2
the agent. dogs belonging to two
owners, acting in concert,
attacked a flock of sheep
and injured many of them.
In an action brought against
the owners of the dogs, one
of them claimed that he is
liable only for one half of
the damage. The court
held that as per law each of
the dogs occasioned the
whole of damage, as a
result of two dogs acting
together and hence each
owner is responsible for the
whole damage.
DISTINCTION B/W INDEPENDENT
AND JOINT TORT FEASORS
Joint tort feasor
• There is mental concurrence in doing the act
and also concurrence in ultimate
consequence
• Release of one joint tort feasor release
another
Independent tort feasor
• There is merely coincidence in the ultimate
result of the act done independently
• Release of one joint tort feasor do not
release another
 NATURE OF JOINT TORT
FEASORS LIABILITY

Joint and several Release of one tort Judgement against

liability feasor would one or more tort
release others as feasors would act
the liability is one as bar against
and indivisible others
Rule in Brinsmead
v. Harrison
In India also same
rule is followed
 JUDGEMENT AGAINST ONE OR MORE TORT
FEASORS WOULD ACT AS BAR AGAINST OTHERS

• judgement against one is not a bar

After the enactment of against others.
Law Reform ( Married • Sum recoverable by way of damages
women and Tort feasors cannot exceed the amount of damages
) Act, 1935 awarded in the first judgement

• Restriction on sum recoverable by way of

After the enactment of damages taken away
civil Liability • There is only disallowance as to recovery
Contribution Act, 1978 of costs.
RIGHTS OF TORT FEASORS
INTERSE

contribution

indemnity
CONTRIBUTION BETWEEN
JOINT TORT FEASORS
 At common law there was no contribution
between joint tort feasors
 If a tort feasor pays whole or more than the
proportionate share of damages to the
plaintiff, he cannot later claim it against
other tort feasors.
 This principle is based on the maxim Ex
turpis Causa non oritur actio- No cause of
action arises from an immoral or illegal act
 MERRY WEATHER V. NIXON
 M & N jointly destroyed the property of S
who brought an action against both and got
a judgement of 840 pounds. The whole of the
amount was recovered from M. M filed suit
for contribution of one half of the amount. It
was held that M could not recover
 Rule- Tort feasor could neither get indemnity
of the whole amount he has paid or
contribution of a part of it.
 This rule came to be limited only to cases of
wilful and conscious wrongdoing.
EXCEPTIONS TO MERRY
WEATHER V. NIXON RULE
Cases of
negligence
and
unintentional
breach of law

Right of
contributionbe Cases of indemnity
where one
tween employed another
Directors and to do acts not
promotors of a unlawful in
compnay for themselves for the
purpose of
misrepresentat asserting a right
ion in
prospectus Exceptions

Admirality
actions in the Where one party
induces another to
case of do an act which is
collusions. not legally
supportable, yet
Both ships not in itself a
share equally breach of law
 ABOLITION OF THE RULE IN
MERRYWEATHER V. NIXON
 Law Reform ( Married women and Tort
feasors ) Act, 1935 abolished the rule.
LAW REFORM ( MARRIED WOMEN AND TORT
FEASORS ) ACT,1935 : ON CONTRIBUTION

A tort feasor may recover contribution

from any other tort fesor, who is laible
in respect of same tort

The amount of contribution

recoverable from the tort feasor shall
be just and equitable having regard to
the extent of responsibility for the tort

Court may in a given case exempt a

joint tort feasor from liability to
contribute
LAW REFORM ( MARRIED WOMEN AND TORT
FEASORS ) ACT,1935 : ON INDEMNITY
 The Act Allows the court to grant complete indemnity in
the case of joint tort feasors
 Master, principal and partner can claim indemnity from
servant, agent and other partner respectively if they pay
damages to the plaintiff for the wrongs committed by
others.
 In fact even before Law Reforms Act, 1935 some
exceptions were recognised and if the situation so
demanded, indemnity could be claimed from other tort
feasors. In Adamson v. Jarvis ( 1827) , plaintiff, an
auctioneer sold certain goods believing in good faith that
defendant is the true owner. Later it was turned out that
defendant was not the true owner and the true owner sued
the auctioneer for compensation. Court held that
auctioneer is entitled to be indemnified by the defendant
for the loss caused to him.
 WHETHER THE RULE IN MERRYWEATHER V.
NIXON IS APPLICABLE IN INDIA
 Some HC’s have applied the principle in
Merry weather case; whereas some other
HC’s adopted a different approach
 In Kushal Rao v. Bapurao , it was held that
Merryweather does not apply in India.
 In Dharnidhar v. Chandrasekhar, it was held
that rule in Merryweather being against the
principle of justice, equity and good
conscience could not be considered to be
applicable in India.