Introduction

In this project, the Researcher had to distinguish between the joint jortfeasors and
independent tortfeasors and analyse the impacts of both. Firstly the researcher has described
the basic criteria to be a joint tortfeasor or an independent tortfeasor. The researcher had
researched and gathered information about both Indian and English laws. The Researcher has
not only highlighted the differences between joint tortfeasors and independent tortfeasors, but
the difference in English laws and Indian laws regarding this topic is also shown.

The Researcher has discussed both the Indian cases as well as English cases related to joint
tortfeasors and independent tortfeasors. The point of similarities and differences between
them is also discussed.

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Research Methodology

For the purpose of research, the researcher has relied on various books, articles, websites and
newspaper. The source from which the material for this research collected are secondary. So
the methodology used in the research has been Doctrinal. Non-doctrinal method has not been
used by the researcher in this research. The researcher has relied on primary sources to look
for the information relating to the statutes and laws on joint and independent tortfeasors . The
research is also deductive in nature since the hypothesis is formed by referring to various
sources, and then coming to a conclusion.
The aim of this project is –
 To understand the distinction between joint tortfeasors and independent tortfeasor.
 To study the application of laws related to joint tortfeasors and independent
tortfeasors.
The objective of this project is –
 To study the ambit of tort of joint tortfeasor and independent tortfeasor.
 To learn the application of laws relating to tort of independent and joint
tortfeasors with reference to various case laws.
The hypothesis formed for the research is as follows:
A tort is a type of civil wrong for which a person adversely affected or injured thereby can
claim damages. Therefore a joint tortfeasor means when two or more person commits a crime
or breaches a tort, then they are liable to compensate damages to the person who is injured.
When two or more persons are engaged in a common pursuit and one of them in the course of
and in furtherance of that commits a tort, both of them will be considered as joint tortfeasors
and liable as such but if the fault is only of one person then only that person will
independently liable. The researcher will describe that how the breach of tort by two person
leads to joint tortfeasor and how is it different from independent tortfeasors..So the researcher
will describe her own prospective towards this topic with a vivid description.
The literature referred by the researcher for the completion of the project is in the form of
books, articles from law journals and web sources. The books referred for the project gave
the researcher an insight into the various aspects of the subject at hand. The researcher also
gained knowledge about the various constituents and important elements of malicious
prosecution. The articles from journals and web sources helped the researcher in doing in-
depth study of topic. Also, the literature was written in a simple and lucid manner.

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Discussion
A tortfeasor is a person or entity who commits a tort. Torts are civil wrongs, as opposed to
criminal offenses, for which there is a legal remedy for harm caused. Independent tortfeasors
are tortfeasors who injured the same person or the same property but who acted without
common design or concert of action and in the absence of any circumstance, such as common
duty, joint enterprise, or relationship, which would make them joint tortfeasors. On the other
hand Joint tortfeasors are two or more persons who unite in committing a tort, or whose acts
concur in contributing to and producing a single indivisible injury upon a third person. When
two or more persons unite in the commission of a wrong, or where separate and independent
acts of negligence by different persons all concur as a proximate cause in producing an
injury, such wrongdoers are jointly and severally liable for the damage resulting from the act,
meaning that any of them can be responsible to pay the entire amount, no matter how unequal
the negligence of each party was.
Two or more persons are said to be joint tortfeasors when the wrongful act, which has
resulted in a single damage, was done by them, not independent of one another but in
furtherance of a common design. When two or more persons are engaged in a common
pursuit and one of them in the course of and in furtherance of that commits a tort, both of
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them will be considered as joint tortfeasors and liable as such. In Brooke v bool A and B
entered Z’s premises to search for an escape of gas. Each one of them, in turn, applied naked
light to the gas pipe. A’s application resulted in a explosion, causing damage to Z’s premises.
In this case, even though the act of A alone had caused the explosion, but both A and B were
Considered to be joint tortfeasors and thus held liable for the damage.
Person having certain relationships are also treated as tortfeasors. The common examples of
the same are: Principal and an Agent, Master and the Servant and a partners in a Partnership
firm. If an agent does a wrongful act in the scope of his employment for his principal, the
principal can be made liable along with the agent as a joint tortfeasor.Similarly, when the
servant commits a tort in the course of employment of his master, both the master and the
servant are liable as joint tortfeasors. In the same way, for the wrongful act done by one
partner in a partnership firm, in the course of performance of his duties as a partner, all the
other partners in the firm are liable along with the wrongdoer.

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Brook v Bool [1928] 2 K.B. 578
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When the negligence of two or more person results in the some damage, then it is a case of
composite negligence, and the persons causing such damage are known as composite
tortfeasors. In England these are classified into two categories- joint tortfeasors and
independent tortfeasors. This distinction is not of much relevance in India. The term
composite negligence has been used in India to cover the cases of both independent
tortfeasors and joint tortfeasors2
When the act of two or more people, who are acting independently, produces a single
damage, then these tortfeasors are known as independent tortfeasors. In this case there is no
concentrated action on the part of all independent tortfeasor. For example, If two cyclists,
who are driving negligently and are coming from opposite direction collide and a pedestrian
is crushed between the two, then these two cyclists are independent tortfeasors.
In The Koursk3 two ships were collided with each other due to independent negligence of
both and as a consequence of which , one of them ran into and sank a third vessel. The court
held that they were not joint tort tortfeasors but were only independent tortfeasors. The
liability of independent tortfeasors is not joint but only several. Which mean that both the
parties are liable only for their own specified obligation. If one party is unable to satisfy his
obligation, the responsibility does not pass to other party. The court also held that since the
parties were severally liable , an action against one of them was no ba to an action against the
other.
Two or more persons are said to be joint tortfeasors when the wrongful act, which has
resulted in a single damage, was done by them, not independently of one another, but in a
furtherance of a common design4.
The main distinction between the joint tortfeasors and independent tortfeasors is that in joint
tortfeasors there is concurrence, not only in the ultimate consequences but there is also
mental concurrence in doing the act. on the other hand, in independent tortfeasors there is
concurrence only in the ultimate result of wrongful act independently done.
Joint tortfeasors are jointly and severally liable. This means that the plaintiff has an option to
sue any one of them, some of them or all of them in an action. Each one of them can be made
to pay the full amount of compensation. As in the cases principal and agent relationship, the
actual wrong is done by the agent but then also plaintiff has an option to sue the master and
recover the whole damage from him only. Principal cannot take the defence that the actual

2
S.P Singh, Law of tort
3
Law reports (1924) probate division, 140
4
R.K. Bangia, law of tort
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wrongdoer was the agent, although after making good the damage, he may hold the agent
responsible to the extent of his fault. Same is for the cases of master-servant and firms.
In the case of Sasidharan v Sukumaran5 a wrongly parked truck was hit by a bus. The bus
was driven very negligently, which causes injury to a person sitting in the truck. The court
held that damage was caused by separate independent actions of the both. So they were held
severally liable. since only driver, owner, and insurance company of the bus were sued so
only fifty percent of the calculated compensation was granted.
Possibility of successive actions
According to common law system, if a judgement was obtained against any of the joint
tortfeasors that resulted in the release of the other joint tortfeasors, there was considered to be
only one cause of action in the favour of the plaintiff and therefore, if he has obtained
judgement against any of the joint tortfeasors, it was assumed that the cause of action merged
with the judgement and the plain tiff was thereby barred from suing the other joint
tortfeasors. Successive actions against the remaining joint tortfeasors were not permitted
eventhough the judgement against the person sued remained wholly unsatisfied.6
But the position of independent tortfeasors was entirely different. In this there is considered
to be a separate cause of action against each tortfeasors, therefore an action against one of the
independent tortfeasors was no bar to an action against others, even if the plaintiff had
suffered a single damage.
It was contrary to the concept of joint and several liability that a judgement against one one
of them bars the several remedy against others. The common law rule was held unjust and
was abolished by the Law Reform (Married Women and tortfeasors) Act 1935. And after that
, an action against one is no bar to an action against others, who would also have been liable
for the same damage.
The present law is contained in section 3 of civil liability (contribution) Act 1978 which is as
follows:
“Judgement recovered against any person liable in respect of any doubt or damage shall not
be a bar to an action, or to the continuance of an action, against any person who is (apart
from such bar) jointly liable with him in respect of the same debt or damage”
The main objective of this provision is to avoid hardship to the plaintiff who could not
recover the amount of decree because the joint tortfeasor sued was found insolvent. Therefore
the successive action is allowed. Section 6 (1)(b) f the law reforms act, 1935, had imposed a

5
Sasidharan v sukumaran 2006 ACJ 945 (ker.)
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R.K. Bangia, law of torts
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restriction that if successive actions are brought, the amount of damages recoverable should
not be more than the amount of damages awarded in the judgement first given. This provision
is also replaced by Section 4, Civil Liability (Contribution) Act, 1978 which has now
disallowed the recovery costs in any subsequent suits, unless the court is of the opinion that
there was reasonable ground for bringing the action.
As far as independent tortfeasors are concerned, restrictions imposed by section 6 are
applicable for them as well.
Position in India
There is no law corresponding to English law reforms act 1935 or the Civil Liability
(contribution) Act 1978 in India. Therefore, Indian courts are free to choose the provision
which they consider correct.
In the case of Nawal Kishore v rameshwar7 , held that it would be unjust to follow the
provisions of English act which provides that the total amount the plaintiff can claim should
not exceed the total amount awarded in first action.
Release of a joint tortfeasor
According to English law, release of one of the joint tortfeasors releases all the others since
there is single cause of action. Same was observed in the case of Cutler v McPhail 8 , where
the defendant was a resident in the pinner area of the Borough and Harrow. He, as an official
organ of pinner Association wrote two defamatory letters, One to the members of the council
and other one to the editior of a magazine and the letter was published. The plaintiff sued
him, and he also sued the editor and printers of magazine and tht other members of pinner
association, who were responsible for the publication. Subsequently, an apology was
published and comensation was given to the plaintiff by the Pinner association , the members
of pinner association and its officers , including the editor were released. There after the
defendant was also released as release of one of the joint tortfeasors extinguishes the cause of
action against all of them.
However, in the case of Shiv Sagar lal v. Mata Din9, where there was a covenant not to sue
one of the tortfeasors therefore the others were not released. In this case plaintiff instituted a
suit for malicious prosecution against several defendants, out of which one was minor. The
plaintiff made a settlement with the minor defendant and therefore he was released. But the
other defendants were not released.

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Naval Kishore v. Rameshwar, A.I.R. 1955 AT PG 585
8
Cutler v. McPhail (1962) 2 Q.B. 292
9
Shiv Sagar v. Mata Din A.I.R. 1949 All. 105
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On the other hand, in the case of Ram Kumar v. Ali Hussain10, the plaintiff sued 12
defendants to claim damages of Rs. 325 alleging that the wrong of assault was jointly done.
Subsequently, a compromise was made with one of the defendants and plaintiff accepted Rs.
25 from him as his share of damage. The court held that since there was not a full satisfaction
for the tort committed by the defendants, the others were not released.
The same was held by the Supreme court in the case of Khusro v N.A.Guzder 11, where a
case was filed against various defendants for defamation, One of the defendant tendered an
unconditional apology to the plaintiff and he accepted it. The court held that this could not be
treated as a full satisfaction for the tort committed therefore other defendants were not
released.
Contribution between joint tortfeasors
It was held in the case of Merryweather v Nixan12 that there could be no contribution between
the joint tortfeasors. Therefore if one of the defendant was made to pay the whole amount of
the damage, he could not recover anything from others who were also responsible.
In this case one person brought an action against the present plaintiff and the defendant. He
recovered the whole amount from the present plaintiff. The present plaintiff now wants
contribution from the defendant. The court held that he could not recover anything as there
can be no contribution between the joint tortfeasors.
This was however, repealed by the Law Reform (Married women and tortfeasors) Act, 1935.
After which a tortfeasor who was made to pay more than his share can claim contribution
from other joint tortfeasors for their share of wrong.
However, in the case of Drinkwater v Kimber13,where a lady was injured because of the joint
negligence of his husband and a third party. She recovered the entire damage from the third
90party. But the third party cannot recover any contribution from the husband as the husband
could not be made liable towards his wife for personal injuries.
Indemnity
In the situations where the joint tortfeasor, who is made to pay for the entire damage, was not
at fault at all in such cases the guilty tortfeasor must fully compensate him. Or we can say
that the guilty tortfeasor must indemnify the other.

10
Ram Kumar v. Ali Hussain I.L.R. (1909) 31 All. 173 at 175
11
Khusro v. N.A. Guzder A.I.R 1970 S.C. 1468
12
Merryweather v. Nixan (1799) 8 T.R. 186
13
Drinkwater v. Kimber (v 1952) 2 Q.B. 281
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In the case of Adomson v. Jarvis14,an auctioneer in good faith sold certain goods on behalf of
the defendant. It turned out that the defendant had no right to the goods and true owner
recovered the compensation from auctioneer. The court held that the auctioneer is entitled to
be indemnified by the defendant.

14
Adamson v. Jarvis (1827) 4 Bing. 66.
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Conclusion
The project has helped the Researcher in understanding the concept of torts I general. It
helped in understanding how Indian and English laws deal with joint tortfeasors and
independent tortfeasors.
Through this project, Researcher concludes that the main distinction between joint tortfeasors
and independent tortfeasors is that in the cases of former, there is concurrence, not only in the
ultimate result of the wrongful act but also mental concurrence on the other hand, in later,
there is only concurrence in ultimate result.
Independent tortfeasors are tortfeasors who injured the same person or the same property but
who acted without common design or concert of action and in the absence of any
circumstance, such as common duty, joint enterprise, or relationship, which would make
them joint tortfeasors.

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Bibliography
Books referred:
 A. Lakshminath & M. Shridhar, Ramaswamy Iyer’s The Law of Torts,
LexisNexis, 2010.
 Ratanlal & Dheerajlal, The Law of Torts, LexisNexis, 2016.
 Ratanlal & Dheerajlal, The Law of Torts, LexisNexis, 2016.
 R.S. Bangia, The law of Torts, Allahabad Law Agency 2016.

Web sources:
 http://www.indiankanoon.com
 http://upreparelaw.com

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