• Ms Asima Amin Nazki

The concept of Joint and Several Tortfeasors

Joint Tortfeasors

When two or more persons join together for common action, then all the persons are jointly and severally liable for any tort committed in the course of such action. There were three principles in English Common Law concerning the liability of joint tortfeasors.

  • The first principle is that the liability of wrongdoers is joint and several i.e. each is liable for the whole damage. The injured may sue them jointly or separately.

  • The second principle was laid down in the case of Brinsmead v. Harrison, where it was held that a judgment obtained against one joint wrongdoer released all the others even though it was not satisfied.

  • The third rule was laid in the case of Merryweather v. Nixon, where it was held that in common law, no action for contribution could be sustained by one wrongdoer against another, although one who sought a contribution might have been compelled to pay the full damages. The reason alleged for this rule was that any such claim to the contribution must be based on an implied contract between the tortfeasors and that such a contract was illegally concluded to commit an illegal act.

But the above rules were virtually abolished by the Law reforms Act, 1935 and the Civil Liability Act, 1978. The first rule in the Brinsmead case being unjust was abolished by the Act 1935 and therefore by the Act of 1978 which now provides that judgment recovered against any person liable in respect of any debt or damage should not be a bar to any action, or to the continuance of an action, against another person who is jointly liable with him for the debt and damage.


The second rule in the Merryweather case is that a tortfeasor who has been held liable cannot recover contribution from other joint tortfeasors, being unjust, has also been abolished by the Act of 1935 which, as per section 6(1), provides that a tortfeasor who has been held liable to pay more than the share of the damages, can claim contribution from the other joint tortfeasors.


The third unjust rule was created by section 6(1) (b) of the Law Reform Act, of 1935 that if successive actions are brought, the number of damages recoverable shall not, in the aggregate exceed, the number of damages awarded in the first judgment. This rule, being unjust has now been repealed and replaced by section 4 of the civil liability Act, 1978 which now disallows the only recovery of cost in the subsequent suits, unless the court believes that there was a reasonable ground for bringing the action.


Law in India

In India, there is no statutory law on joint tortfeasors’ liability. As stated above, in England the Law Reform Act, 1935, and the Civil Liability Act 1978, have virtually brought the position of joint- tortfeasors on par with the independent tortfeasors. The question therefore arises, should the Indian courts follow the common law on joint tortfeasors which was laid down in Brinsmead and Merryweather cases and was prevailing in England before 1935 or the law enacted by the British Parliament in 1935 and 1978? Up to 1942, the courts in India had 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 v. Guzdar, refused to follow the common law of England. The fact was that in the suit for damages for defamation, one of the defendants had tendered an apology to the plaintiff and the court had passed a compromise decree between the plaintiff and the defendants who tendered an apology. When the plaintiff wanted to continue the suit against the other defendants, it was contended by the defendants that the compromise decree released all other defendants from their liability. Rejecting the contentions of the defendants, the court held that in the case of joint tortfeasors, 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. The rule which is in consonance with justice, equity, and good conscience will convince only that type of liability of tortfeasors as joint and several.


In the light of the above decision, the recent trend of the Indian court is to follow or adopt common law of England or the law enacted by the British Parliament if it is in consonance with the principles of equity, justice, and good conscience under the Indian Constitution.

Several Tortfeasors

When the same injury is caused to another person by two or more people as a result of their separate tortious acts, this results in several tortfeasors. Even where successive injuries are caused, the parties remain multiple, concurrent tortfeasors as long as the negligence of each is both a factual and proximate cause of each injury.

  • Illustration

Several concurrent tortfeasors will occur in a chain collision situation, as described in the case of Rutter v Allen. In this case, the plaintiff stopped his vehicle behind a truck that had come to a sudden stop. Plaintiff was then struck from behind by a vehicle driven by defendant X which was struck by a vehicle driven by defendant Y. The exact sequence of the collisions could not be determined with certainty because they all occurred within a very short time frame. Despite this, it was held that due to both the defendant’s negligence, the damage had been caused to the plaintiff’s vehicle. As a consequence, the accused were several concurrent tortfeasors and were jointly and severally liable for the damage caused by their negligence.


If a complainant suffers multiple accidents, several concurrent tortfeasors may also be the individual tortfeasors from each accident. For example, in a motor vehicle accident in Hutchings v Dow, the complainant suffered damage. He was further injured in an assault about 18 months later. It was determined that the complainant suffered from severe and ongoing depression resulting from both the motor vehicle accident and the assault. The court stated that “several tortfeasors whose acts combined to produce the same damage, i.e. depression,” were the defendants from the motor vehicle accident and the assault perpetrator.


The author is a Fifth-year Law Student pursuing B.A. LL.B from Central University of Kashmir.

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