Joint tortfeasors and laws in India

Introduction
When two or more persons unite to cause damage to another person, then they will be liable as joint tortfeasors. All those who actively participate in the civil wrong commission are joint tortfeasors. Based on the percentage of damage caused by his negligent act, each joint tortfeasor is responsible for paying a portion of the compensation granted to the complainant. According to the principle of contribution, the defendant who pays more than his share of the damages, or who pay more than he is at fault, may bring an action to recover from the other defendant.
Liability of Independent Tortfeasor
They are severally liable for the same damage due to an independent course of action. In Thompson v. London County Council, it was observed that “the damage is one but the cause of action which led to the damage are two”. Such tortfeasors are, therefore, severally liable for the same damage, not jointly liable for the same tort. In Koursk case, Koursk and Clan Chisholm collided with one another. As a result, the ship Clan Chisholm collided and sank another ship Itria. The owners of the damaged ship Itria recovered the damages from Clan Chisholm for the loss suffered but were not fully satisfied as the liability of the owners of Clan Chisholm was limited to the lesser amount. Subsequently, owners of Itria filed a suit against the Koursk also. It was held that Koursk and Clan Chisholm were not joint tortfeasors but only independent tortfeasors. The liability of the Independent tort was held to be several and not joint and therefore, there could be as many causes of action as the number of tortfeasors.

Liability of Several Concurrent Tortfeasors
When the same injury is caused to another person by two or more person as a result of their separate tortious acts, this results in several concurrent 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. 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[2], 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.

Liability of 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 with regard to 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 tort-feasors and that such a contract was illegally concluded with a view to committing 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 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 bar to an action, or to the continuance of an action, against another person who is jointly liable with him with respect to the debt and damage.
The second rule in 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 amount of damages recoverable shall not, in the aggregate exceed, the amount 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 is of the opinion that there was a reasonable ground for bringing the action.
Laws 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 prior to 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.
Tortfeasors Defenses
An individual or entity accused of committing a civil mistake basically has three options for defending their actions. These tortfeasor defenses include:

Consent and Waiver
A tortfeasor (defendant) may defend his position in a civil lawsuit if the accuser (defendant) has been explicitly warned of the risk or danger of engaging in the harmful activity. This defense is referred to as the legal maxim volenti non fit injuries, which means “no injury is done to a consenting person.” This tortfeasor defense usually relies on signed waivers of liability

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