Joint Tortfeasors and Laws in India

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Joint Tortfeasors and Laws in India

Written By: Manali Bharti


When two or more defendant parties have joint liability, they are called joint tortfeasors, and each is individually liable to the plaintiff for up to the full amount of the loss. Even if one defendant dies, disappears, or is declared bankrupt, the plaintiff can recover the full amount of the damages from the other defendant. The plaintiff must usually show indivisibility of harm to obtain joint liability of the defendants. Importantly, the plaintiff cannot recover her full damages more than once.”

Illustration: A incites B to defame C. A and B are joint tortfeasors and will be jointly liable to C for the tort of defamation.

Circumstances under which joint liability arises

“Agency- The concept of agency provides that, whenever one person employs, authorizes or procures another person to commit a tort, the law takes into account the wrong of both of them and eventually, both the principal and the agent become jointly and individually responsible for the actions of the agent.

Arneil v. Paterson – In the aforementioned case, two dogs at a concert that belonged to different owners, attacked a flock of sheep and injured many of them. When a suit was brought against the owners of the dogs, one of them put forth a claim that he would be liable only for one-half. But it was finally held that both the owners will be liable for the whole damage, as each of the dogs occasioned the whole of the damage.

Vicarious liability- Vicarious liability is a concept in law, whereby, the liability is assigned to a person who did not commit the wrong but has a superior legal relation with the person who actually committed the wrong. The situations of vicarious liability mostly arise in the case of employee and employer relations. In the case of vicarious liability, both, the person who commits a tort and the person vicariously liable for the wrong are deemed to be joint tortfeasors.

Joint or common action- In the law of torts two or more persons are said to be joint tortfeasors if they act jointly in the tort or the same suit of action is followed if one defendant has incited another to commit the tort.

There are two principles involved in joint or common action which will be discussed under

Accessory Liability– In the context of English common law, liability for participating in another’s tort is considered to be a form of joint liability, but at the same time, it is ambiguous whether procurement is a concept that is different from that of a common design or if it is a subset of it. Considering it on a whole it can be concluded that the law favours procurement as a subset of law rather than taking it as a form of common design.

In support of this, a judgment was given in the case of CBS Songs Ltd v Amstrad Consumer Electronics plc whereby it was held that the procurer is a joint tortfeasor only if he shares the design of the primary tortfeasor.

The tort of Common Design– In the case of Fish & Fish Ltd v Sea Shepherd UK, it was taken into account that in order to establish accessory liability on a person, two elements are necessary to be proved, which are, one- the defendant acted in a particular way and this was the reason which led to the occurrence of the tort by the main actor. Two, the main actor would have further done so in pursuance of a joint plan or “Common Design”. There is no established test for determining the common liability and it varies from one case to another depending upon the facts and circumstances of the case.”

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.”

  The Supreme court of India, in Khushro S. Gandhi v. Guzda], 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, in order 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 the 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.

Tortfeasors defense

  • Consent and Waiver – This defence is referred to as the legal maxim volenti non fit injuria, which means “no injury is done to a consenting person.”
  • Contributory negligence — Tortfeasors may try to defend themselves by claiming that the complaint contributed to their own damage by committing acts of recklessness or negligence.
  •  Illegal act or omission – Where at the time of the injury, the complainant committed an illegal act for which he was seeking compensation, the defendant’s liability may be reduced, or entirely eliminated.}”


The law of contribution says that Y claims to share the liability to X with others was based on the fact that they were subject to a common liability to X, whether equally with Y or not. The words in respect of the same damage emphasized the need for one loss to be allocated among those liable. The amount of the contribution recoverable from any person shall be fair and equitable, taking into account the extent of his responsibility for the damage. The court may exempt any person from the liability to make a contribution or direct that any person’s contribution amounts to full compensation.

The plaintiff fell down a hole that had been left uncovered by the negligence of a contractor employed by the defendant to carry out certain works on the premises on which the plaintiff had come. It was held that the contractor who was added as a third person to the suit was liable to contribute one-half of the damages.

Criticism of Joint Tortfeasors

The joint and multiple liability doctrine is criticized because it can result in severe inequities. For example, a defendant who has only 10 per cent responsible for an accident that is jointly and severally liable with a defendant who is 90 per cent at fault for an accident may have to bear the full amount of damage financial burden, even though his or her mistake was quite minor.


The article has covered under its ambit, numerous concepts, case laws, and provisions related to the concept of the joint tortfeasor. It showcases the rigid and reasonable use of tort law and through the way in which there can be justice served in the interest of the society Joint and multiple liabilities is a system that protects the complainants when one or more wrongdoers are unable to pay damages owed to the complainant. However, this can lead to disproportionate and unexpected results for tortfeasors.

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