Tort - Joint And Several Tortfeasors

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Joint and Several Tortfeasors - Introduction

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Part III of the Civil Liability Act 1961 abolished many anomalies in the law on cases where more than one party was responsible for a tort.

However, many complications still arise, based on the complexity of factual scenarios in this area.

Principles in this area broadly fall into two distinct categories:

(a) allocating responsibility;

(b) procedural rules.

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Concurrent Liability

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The primary aim of Part III CLA 1961 is to maximise the Pl’s ability to recover adequate compensation by avoiding the possible inability of some wrongdoers do provide their just share.

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Defining Concurrent Wrongdoers

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s. 11(1) defines concurrent wrongdoers as “two or more persons … when both or all are wrongdoers and are responsible to a third person … for the same damage”.

s. 11(2)(b): the wrongs may involve any combination of tort, breach of contract, or breach of trust.

The crucial element is that the wrongs lead to one single injury; the following scenarios are covered:

i. Wrongdoers act in concert to cause an injury;

ii. Wrongdoers act separately, but their wrongs lead to the same injury;

iii. Some wrongdoers do not even act at all, e.g. vicarious liability of an employer; a person subject to a non-delegable duty.

Concurrent wrongdoers must be separated from independent wrongdoers, who cause separate injuries to the same Pl; as a rule, actions against such wrongdoers must be taken independently of each other.

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Principle of full responsibility

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To the extent that the wrongs are concurrent, each wrongdoer is fully liable for the damage, subject to the limitation that the Pl cannot recover more than that amount at which the damage has been measured.

Where (a) apportionment of damages is accepted, or (b) contribution is sought under s. 21, the basis for calculation is the relative fault of the wrongdoers; blameworthiness, rather than causal force, is the deciding factor.

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Exceptions to full responsibility

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There are three exceptions to this in the Act:

i. Where the Pl accepts an apportionment of liability among the Defs, based on their individual degrees of fault; here, each Def is liable only for his share of the damage. If any Def fails to meet his portion, the Pl may apply to have the deficiency distributed among the other wrongdoers.

ii. Where there is a finding of contributory negligence against the Pl; the same procedure as (i) applies.

iii. Where there is a collision at sea.

11(1) defines concurrent wrongdoers as “two or more persons … when both or all are wrongdoers and are responsible to a third person … for the same damage”.

Section 14 provides that the Court can give judgment jointly or separately against Def; the Pl is entitled to elect the method. Where a Pl elects to extract judgment from one Def, he may then seek contribution from the other Defs in a separate application under s. 21.

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Iarnród Éireann v. Ireland (1996)

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The court had held Iarnród 30% liable and a cattle owner 70% liable for injuries sustained when a train collided with cattle.

Under s. 14 CLA 1961, the Pl elected to extract judgment from Iarnród, but s. 21 recovery was worthless, as the cattle owner was uninsured and the bill was £3.9 million. Argued that 40.3 and 43 infringed.

SC rejected the constitutional challenge on the ground that it was not a disproportionately unjust attack on property rights by the legislature.

In response to the argument that the inability of a fellow wrongdoer to pay should lead to a reduction in damages, it was held that such a reduction would “have been to exonerate … the blameworthy at the expense of the blameless”.

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Procedures Available to the Plaintiff - Apportionment

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s. 14(3): where the Pl is satisfied that each Def can pay, he can agree to apportionment of damages.

Here, Defs are not entitled to contributions from each other under s. 21.

If one Def later cannot pay, the Pl may return to court to apply for the shortfall to be distributed among the remaining Defs.

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Procedures Available to the Plaintiff - Suing Concurrent Wrongdoers Together

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s. 13: Pl can sue one, some, or all wrongdoers.

Where multiple wrongdoers are sued, they should, where possible, be joined as Defs in one action.

s. 32: where multiple wrongdoers are sued in one action they are entitled to give evidence against (a) Pl, and (b) each other.

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Procedures Available to the Plaintiff - Suing Concurrent Wrongdoers Separately

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s. 18: where a Pl proceeds against one wrongdoer, he can later proceed against others.

However, findings of fact (including the Pl’s contributory negligence) bind the later proceedings.

Damages awarded in the subsequent action cannot exceed the original amount awarded.

The Pl cannot recover costs in the later action unless there are reasonable grounds for bringing a separate action.

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Procedures Available to the Plaintiff - Judgment Against Wrongdoers

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Pl is entitled to extract judgment in full from any one wrongdoer (who then has access to s. 21).
 Where one wrongdoer fully satifies the claim, further proceedings by the Pl are precluded and all wrongdoers are discharged of liability, regardless of whether they contributed.

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Procedures Available to the Concurrent Wrongdoers - Seek Contribution

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s. 21(1) entitles wrongdoers to seek contribution from their fellow wrongdoers who are liable for the same damage.

The contribution should be “just and equitable having regard to the degree of … fault”.

s. 23 provides that a contribution is obtainable by a wrongdoer only to the extent which the sum paid exceeds his just proportion. Thus, the money must have been paid over to be recovered under s. 21.

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Kelly v. Jameson (1972)

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“Fault” = blameworthiness, which the court found fairer than causal force.

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Procedures Available to the Concurrent Wrongdoers - Procedure for Seeking Contribution

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Application is made during the original proceedings, after the hearing of the main action.

Where a wrongdoer seeks contribution from a party not being sued in the main action, the applies to the court to serve a Third Party Notice.

Naturally, contribution will be received from the third party only where the Pl would have recovered from them.

The third party’s appearance does not automatically render them a co-defendant, but the Pl can apply for this when the Def applies for Third Party Notice.

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Wicklow County Council v. Fenton (2002)

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Held that a court is not obliged to serve third party notice, where it is not in the interest of the proceedings or in the public interest to do so.

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European Chemical Industries Case (2006)

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Where a third party notice is set aside by a court, or if a Def never applies for one, a third party notice could be applied for in separate proceedings, provided there was a good reason for failing to comply with s. 27.

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Procedures Available to the Concurrent Wrongdoers - Limitation Period for Seeking Contribution

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s. 31: either (a) the same limitation period as that of the initial proceedings, or (b) within 2 years of judgment, whichever is longer.
 In practice, the Def should seek contribution as soon as possible once the Pl has made the initial claim, as the court has discretion to reject the application for contribution: the timing and prejudice suffered by other wrongdoers are considered.