Joint and Several Tortfeasors — Contribution

When two or more persons are answerable in tort for the same damage, the law must answer four practical questions in sequence: are they all liable, may any one of them be sued for the whole, does a judgment against one bar an action against the others, and may a paying tortfeasor recover from the rest? The answers depend on whether the wrongdoers are joint tortfeasors, independent tortfeasors, or — in the Indian usage — composite tortfeasors. The doctrines built on these distinctions are old, partly reformed by statute in England, and only partially settled in India.

This chapter sits within the Law of Torts notes on capacity and parties to a tort action. It develops the framework that governs every multi-defendant case in Indian tort practice — from a road accident with two negligent drivers, through a defamation by a publisher and printer, to a polluting industrial estate where several units have contributed to a single environmental harm.

Joint, independent and composite tortfeasors

Two or more persons are joint tortfeasors when the wrongful act resulting in a single damage was done by them not independently of one another but in furtherance of a common design. Where they merely act independently and their separate acts cause one damage, they are independent (or several) tortfeasors. The Indian terminology of "composite tortfeasors" collapses both categories where two or more persons together produce a common damage, and is the usage adopted by Indian courts in motor-accident and pollution claims.

The doctrine starts from the broader framework of the essentials of a tort — there must be a wrongful act, legal damage, and a legal remedy — but the joint-tortfeasor question is not whether a wrong was committed, only how the liability is allocated among multiple wrongdoers. The classic illustration of joint tortfeasors is Brook v. Bool, [1928] 2 KB 578. Two men entered the plaintiff's premises to search for an escape of gas. Each in turn applied a naked light to the gas pipe; the second application caused an explosion. Both were held liable as joint tortfeasors although only one had triggered the blast. The decisive factor was the common pursuit and mental concurrence in doing the act, not who put the lighted match to the gas.

The classic illustration on the other side of the line is The Koursk, [1924] P 140. Two ships, each navigated independently and negligently, collided with one another, and the collision pushed one of them into a third vessel which was sunk. The two ships were held to be independent tortfeasors. Their concurrence was only in the chain of causation that led to the single damage, not in any common design. The legal consequence was that the third vessel had as many causes of action as defendants, and an action against one was no bar to an action against the other.

Persons standing in certain legal relationships are treated as joint tortfeasors by operation of law. A principal and his agent, a master and his servant, and partners in a firm are the classic trinity. Where the agent commits a tort within the scope of his employment, the principal is liable as a joint tortfeasor — see Lloyd v. Grace, Smith & Co., [1912] AC 716 — and where a partner commits a tort in the course of partnership business, the firm is liable for the wrongful act of the partner — see Hamlyn v. Houston & Co., [1903] 1 KB 81. The deeper exposition of these relationships belongs in the chapter on master-servant, principal-agent and partners.

Joint and several liability

The liability of joint tortfeasors is joint and several. The plaintiff has a choice — to sue any one of them, some of them, or all of them. Each one of them can be made to pay the full amount of compensation. For the wrong committed by the agent, both the principal and the agent are jointly and severally liable, and the principal cannot defend by saying that the agent was the actual wrongdoer; he may, however, after paying, look to the agent for indemnity to the extent of the agent's fault.

The proposition is not unlimited. Where the damage to the plaintiff is divisible between defendants whose acts are independent, the apportionment is followed and each is liable only for his contribution to the harm. The Kerala High Court in Sasidharan v. Sukumaran, 2006 ACJ 945 (Ker), held that where a wrongly-parked truck was hit by a rashly-driven bus and a passenger in the truck was injured, the two drivers were not joint tortfeasors and their liability was not joint and several — the damage was caused by separate independent acts that could be apportioned. The line dividing these cases is whether the harm is one indivisible injury or whether it is the cumulative product of independently-attributable acts. For the underlying analysis on apportionment between several wrongdoers in contributory and composite negligence the next level of detail belongs in the negligence chapters.

The Koursk distinction in modern motor-accident litigation

Indian motor-accident jurisprudence has worked the joint-versus-independent distinction extensively. Where two drivers are equally negligent and a single passenger is injured, the courts have generally treated the wrongdoers as composite tortfeasors and made each liable for the whole of the loss, with apportionment inter se a matter for them and their insurers — see for example the line of authority typified by United India Fire and General Insurance Co. v. Sayar Kunwar, AIR 1976 Raj 173. The composite-tortfeasor framing protects the plaintiff: she need not unscramble the precise contribution of each driver to her injury, and may execute the full decree against the more solvent defendant.

Where, on the other hand, the harm is genuinely divisible — separate damage to the cargo of two consignors caused by separate negligent acts — the framework reverts to the Koursk position and the defendants are independent tortfeasors. Each is liable only for his own contribution and the plaintiff has separate causes of action. The drafting of the plaint must therefore reflect the factual frame: a composite-tort case demands joint-and-several relief, an independent-tort case requires several relief.

Successive actions — the rule in Brinsmead v. Harrison

If the plaintiff has brought an action against one of the joint tortfeasors and the judgment is not fully satisfied, may he sue the others? The Common Law answer was severe. In Brinsmead v. Harrison, (1872) LR 7 CP 547, the rule was confirmed that joint tortfeasors share a single cause of action; obtaining a judgment against one merged the cause of action with the judgment, and the plaintiff was barred from suing the remaining joint tortfeasors even though the first judgment remained wholly unsatisfied. London Association for Protection of Trade v. Greenlands Ltd., [1916] 2 AC 15, restated the same proposition. The rule was deeply at odds with the very idea that the liability was joint and several — for if each is severally liable, why should obtaining judgment against one extinguish the liability of the rest?

The Common Law rule was abolished in England by Section 6(1)(a) of the Law Reform (Married Women and Tortfeasors) Act, 1935 and is now contained in Section 3 of the Civil Liability (Contribution) Act, 1978, which provides that "judgment recovered against any person liable in respect of any debt or damage shall not be a bar to an action, or to the continuance of an action, against any other person who is (apart from such bar) jointly liable with him in respect of the same debt or damage." The 1935 Act had imposed a cap on the total damages recoverable in successive suits — they could not in the aggregate exceed the amount awarded in the first judgment — but Section 4 of the 1978 Act removed that cap and now only restricts the recovery of costs in subsequent actions, unless the court is of the opinion that there was reasonable ground for bringing them.

The Indian position on successive actions

India has no statute corresponding to the 1935 or 1978 English Acts. The question whether Brinsmead v. Harrison survives in Indian law has been resolved largely by High Court reasoning on the principle of justice, equity and good conscience. The Allahabad High Court in Nawal Kishore v. Rameshwar, AIR 1955 All 594, took the view that the rule in Brinsmead v. Harrison, being unjust, ought not to be applied in India and that successive actions should be permitted, with the further holding that the English statutory cap on aggregate damages had no equity behind it and ought not to be imported either. The court reasoned that there was no justifiable reason why a plaintiff who has been forced into a second action by an unsatisfied first decree should be limited to the figure decreed in the earlier suit.

The settled Indian view — in the absence of a Supreme Court pronouncement — is therefore that a judgment against one joint tortfeasor is not a bar to an action against the others, and that the plaintiff is not capped by the figure of the first decree. The result is closer to the post-1978 English position than to the Common Law of Brinsmead v. Harrison.

Release of one joint tortfeasor

The rule that release of one joint tortfeasor releases all others is older than the Law Reform Act and survived its passage. In the case of joint tortfeasors the cause of action is one and indivisible; the release of one extinguishes the cause of action against all — see Duck v. Mayeu, [1892] 2 QB 511, and Cutler v. McPhail, [1962] 2 QB 292. The rule applies whether the release is by deed, by accord and satisfaction, or by a settlement entered with one of the wrongdoers.

Critical distinction. A release of a joint tortfeasor must be carefully separated from a covenant not to sue. A release extinguishes the right; a covenant not to sue is a personal undertaking by the plaintiff towards a particular defendant and does not affect his right of action against the other wrongdoers. The common-law authority is Hutton v. Eyre, (1815) 6 Taunt 289. The drafting consequence in modern settlement practice is concrete: a settlement deed with one defendant that intends to leave the action alive against the others should be drawn as a covenant not to sue rather than as a release. The point recurs in the chapter on discharge of torts, where release, accord and satisfaction and waiver are the principal modes by which a tort claim is extinguished short of judgment.

Contribution — the rule in Merryweather v. Nixan

The most famous proposition in the law of joint tortfeasors is the rule in Merryweather v. Nixan, (1799) 8 TR 186 — that there can be no contribution between joint tortfeasors. One Starkey had brought an action in tort against Merryweather and Nixan, and recovered the whole of the damages (£840) from Merryweather alone. Merryweather sued Nixan for a half share. The Court of King's Bench held that no contribution lay. The premise was that to allow contribution would be to enforce an implied agreement between joint wrongdoers, which the law would not countenance. The result was that the plaintiff's choice of which defendant to execute against fell on one wrongdoer alone, while the others walked free.

The rule survived for 136 years. It was widely criticised. Lord Herschell in Palmer v. Wick & Pulteneytown Steam Shipping Co., [1894] AC 318 questioned it as devoid of equity: it imposed the burden of joint wrongdoing on a single defendant chosen by the plaintiff, and rewarded the others with an undeserved escape.

The rule was abrogated in England by Section 6(1)(c) of the Law Reform (Married Women and Tortfeasors) Act, 1935, which provided that a tortfeasor liable in respect of damage suffered by any person may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, with the amount of contribution to be such as may be found to be just and equitable having regard to the extent of that person's responsibility for the damage. The principle is now in Section 1 of the Civil Liability (Contribution) Act, 1978.

Indemnity between joint tortfeasors — the Adamson v. Jarvis exception

Even before the 1935 Act, a sliver of equity had been carved out. In Adamson v. Jarvis, (1827) 4 Bing 66, an auctioneer sold goods in good faith on instructions from the defendant, who turned out to have no title. The true owner recovered against the auctioneer. The auctioneer was held entitled to be indemnified by the defendant. The court reasoned that where the wrongdoer claiming indemnity had acted in honest reliance and was free from moral fault, the rule in Merryweather v. Nixan ought not to bar him from recovering from the actual delinquent. The exception is now of historic interest in England — the 1935 Act swept the field — but it remains useful in Indian common-law reasoning where the contribution question arises.

The Indian position on contribution

India has no statute corresponding to the Law Reform (Married Women and Tortfeasors) Act, 1935. The question whether Indian courts should apply the rule in Merryweather v. Nixan has been answered in the negative by every High Court that has reasoned through it. The Madras High Court in Manja v. Kadugochen, (1883) ILR 7 Mad 89, applied the rule in an early decision; subsequent High Courts have moved decisively the other way. The High Courts of Nagpur in Khushalrao v. Bapurao, AIR 1942 Nag 52, Calcutta in Nani Lal De v. Tirthalal De, (1953) 1 Cal 249, and Allahabad in Dharni Dhar v. Chandra Shekhar, AIR 1951 All 774 (FB), have all held that the rule does not apply in India.

The reasoning of Wali Ullah J. in Dharni Dhar remains the leading exposition. The judge held that the rule could not be invoked as a rule of English Common Law on the ground of justice, equity and good conscience because, since 1935, it had ceased to be part of English Common Law itself. The rule was, on its merits, contrary to the basic principle of equity that there should be equality of burden and benefit. After a decree imposing a joint and several liability, where one judgment-debtor is made to pay the whole, justice and fairplay require him to be able to share the burden with his compeers. In enforcing a right of contribution, such a judgment-debtor bases his claim on the fact that the common burden has been discharged by him alone. The decree itself creates a joint debt and each judgment-debtor must, on principle, share that burden.

The Nagpur decision in Khushalrao v. Bapurao applied the same analysis on facts that crystallised the equity. Five partners had executed a licence agreement that proved void for want of sanction. They continued to cut timber for sixteen months in defiance of the grantor's requests to stop. The grantor obtained a decree against all five for trespass. Execution was levied against the plaintiff alone, who paid the whole and then sued the others for contribution. The Nagpur High Court held that the rule in Merryweather v. Nixan did not apply in India, and the other partners were bound to pay their share. The court's observation captured the equity: "It may perhaps not be irrelevant to ask why by punishing one wicked man, in such a way, one should make a present to the other wicked man, his co-debtor, especially if it should appear that the second is really the responsible person, the ringleader and so forth."

How contribution is calculated in India

The Indian courts, having rejected Merryweather v. Nixan, have not however imported in full the just-and-equitable apportionment regime of the 1935 and 1978 English Acts. The general direction in the Indian decisions is to treat the contribution as proportionate to the extent of fault, with equal apportionment as the default where the fault is not separable. The Allahabad High Court in Nawal Kishore v. Rameshwar took the view that where the joint wrong consists of acts that are themselves equal in fault, each tortfeasor must contribute equally. In motor-accident litigation involving composite negligence the apportionment between drivers is routinely fixed at a percentage by the Tribunal — fifty-fifty, sixty-forty — and the contribution claim is decided on that finding.

Joint tortfeasors and the doctrine of vicarious liability

The categories overlap with vicarious liability. The master and the servant whose tort is committed in the course of employment are joint tortfeasors, and the master who has paid the plaintiff may seek indemnity from the servant on the footing of the breach of the implied contract of competent and careful service. The principle was famously stated in Lister v. Romford Ice and Cold Storage Co. Ltd., [1957] AC 555, although Indian courts have applied it with caution in the master-servant context, especially where the servant's act is committed within his official duties as an employee of the State. The connections back to the chapters on the vicarious liability of the State and the principle of absolute liability for hazardous activity are obvious — multi-defendant industrial accidents almost always raise both joint-tortfeasor and vicarious-liability questions in the same plaint.

Strangers to the common design and the limits of joint liability

The doctrine does not visit liability on a defendant whose participation falls short of the common design that defines joint tortfeasance. A bystander who happens to be present, a person who later approves of the wrong without authorising it, or a stranger whose act in fact contributes to the damage but is independent in design, is not a joint tortfeasor. The defence framework in the chapter on general defences in tort applies separately to each defendant on the facts available to him. The point matters in defamation cases where multiple persons handle a single libel — the author, the editor, the printer and the distributor may all be liable, but their liability is concurrent rather than joint, unless the conspiracy element is pleaded and proved. The same point recurs in nuisance, where multiple polluters may produce a single nuisance through independent acts and the question is then whether their liability is joint, several, or composite. The framework interlocks with the analysis in the law of public and private nuisance and with the multi-publisher rules treated in the chapter on defamation and its defences.

Summary of the rules

1. Joint tortfeasors are persons who, in pursuit of a common design, cause one indivisible damage; independent tortfeasors are persons whose separate acts concur only in the realm of causation; composite tortfeasors is the Indian umbrella for both where one damage is the result.
2. The liability of joint tortfeasors is joint and several. The plaintiff may sue any of them for the whole. Where the harm is divisible, the principle of apportionment by causation applies (Sasidharan v. Sukumaran).
3. The Common Law rule in Brinsmead v. Harrison that a judgment against one joint tortfeasor merged the cause of action and barred a suit against the others has been abrogated in England by statute and rejected in India by the High Courts as contrary to justice, equity and good conscience.
4. Release of one joint tortfeasor releases all the others, but a covenant not to sue does not have that effect (Duck v. Mayeu; Hutton v. Eyre).
5. The rule in Merryweather v. Nixan denying contribution between joint tortfeasors has been abrogated by Section 6 of the Law Reform Act, 1935 in England and rejected in India by the High Courts of Nagpur, Calcutta and Allahabad. A paying tortfeasor may recover contribution from his co-tortfeasors in proportion to fault, with equal apportionment as the default.
6. An indemnity, distinct from contribution, lies in the Adamson v. Jarvis-type situation where the paying defendant was morally innocent and the co-defendant solely or principally responsible for the wrong.

Exam angle

Three propositions are tested repeatedly. First, the distinction between joint tortfeasors (common design, Brook v. Bool) and independent tortfeasors (concurrent causation alone, The Koursk). Second, the rule on release versus covenant not to sue and the drafting consequence in settlement deeds. Third, the rejection of Merryweather v. Nixan in India — by the Nagpur, Calcutta and Allahabad High Courts in Khushalrao, Nani Lal De and Dharni Dhar respectively — and the rule that a paying tortfeasor in India may claim contribution on the principle of justice, equity and good conscience. The frequent trap in objective papers is to assume that the English statutory regime applies in India; it does not directly, but the Indian courts have arrived at the same destination on first principles. The connections out to the chapter on judicial and extra-judicial remedies and the chapter on damages close the doctrinal map.

Frequently asked questions

What is the difference between joint, independent and composite tortfeasors?

Joint tortfeasors act in furtherance of a common design and produce a single damage — the leading example is Brook v. Bool, where two men jointly searched for a gas leak with naked flames. Independent tortfeasors act separately, and their acts merely concur in the chain of causation — the leading example is The Koursk, where two negligently-navigated ships collided and one of them sank a third vessel. Indian courts use "composite tortfeasors" as an umbrella for both categories where the result is one indivisible damage, especially in motor-accident and pollution litigation.

Does a judgment recovered against one joint tortfeasor bar the plaintiff from suing the others?

At Common Law it did, by the rule in Brinsmead v. Harrison, (1872) LR 7 CP 547, on the theory that joint tortfeasors share a single cause of action. The rule was abrogated in England by Section 6(1)(a) of the Law Reform Act, 1935 and now stands in Section 3 of the Civil Liability (Contribution) Act, 1978. In India, in the absence of a statute, High Courts including Allahabad in Nawal Kishore v. Rameshwar, AIR 1955 All 594, have held the Common Law rule unjust and inapplicable, allowing successive actions until the plaintiff's claim is satisfied.

What is the difference between a release and a covenant not to sue in joint-tortfeasor settlements?

A release extinguishes the cause of action — and because joint tortfeasors share one cause of action, releasing one releases all (Duck v. Mayeu, [1892] 2 QB 511; Cutler v. McPhail, [1962] 2 QB 292). A covenant not to sue is only a personal undertaking by the plaintiff towards a particular defendant; it does not affect the cause of action and the plaintiff retains his right of action against the remaining wrongdoers. The drafting consequence is critical — a settlement deed with one defendant that means to keep the action alive against the others must be a covenant not to sue, not a release.

Can a tortfeasor who has paid the plaintiff in full recover contribution from the others?

In England, yes, under Section 1 of the Civil Liability (Contribution) Act, 1978 (formerly Section 6 of the Law Reform Act, 1935), which abolished the rule in Merryweather v. Nixan, (1799) 8 TR 186. In India, in the absence of a statute, the High Courts of Nagpur in Khushalrao v. Bapurao, Calcutta in Nani Lal De v. Tirthalal De, and Allahabad in Dharni Dhar v. Chandra Shekhar have rejected Merryweather v. Nixan as contrary to justice, equity and good conscience. The paying tortfeasor may recover contribution proportionate to the extent of each co-tortfeasor's fault.

Why did the Indian High Courts reject the rule in Merryweather v. Nixan?

Wali Ullah J. in Dharni Dhar v. Chandra Shekhar, AIR 1951 All 774 (FB), reasoned that the rule was devoid of the basic principle of equity — equality of burden and benefit — and that it could no longer be invoked as Common Law because the English Parliament had itself abrogated it in 1935. The Nagpur High Court in Khushalrao framed the equity sharply: punishing one wicked man by making him pay the whole, while gifting the rest an unearned escape, could not survive the test of justice, equity and good conscience that is the touchstone of Indian common law in the absence of statute.

When is the liability of two negligent persons several rather than joint?

When the harm caused is divisible and traceable to the separate independent act of each — The Koursk is the canonical example; Sasidharan v. Sukumaran, 2006 ACJ 945 (Ker), is a modern Indian application where a wrongly parked truck and a rashly driven bus produced separate, apportionable injuries. In such cases, each defendant is liable only for the damage caused by his own act, the plaintiff has separate causes of action, and the liability is several, not joint and several.