Concurrent Wrongdoers
Concurrent Wrongdoers
Concurrent wrongdoers are two or more wrongdoers who are responsible to the claimant for the same damage.
Persons may become concurrent wrongdoers as a result of vicarious liability of one for another, breach of joint duty, conspiracy, concerted action to a common end or independent acts causing the same damage; The wrong on the part of one or both may be a tort, breach of contract or breach of trust, or any combination of them; It is immaterial whether the acts constituting concurrent wrongs are contemporaneous or successive.
Where two or more persons are at fault and one or more of them is or are responsible for damage while the other or others is or are free from causal responsibility, but it is not possible to establish which is the case, such two or more persons shall be deemed to be concurrent wrongdoers in respect of the damage.
Where there is a joint libel in circumstances normally protected by the defences of qualified privilege or fair comment upon a matter of public interest, the malice of one person shall not defeat the defence for the other, unless that other is vicariously liable for the malice of the first. Where the same or substantially the same libel or slander or injurious falsehood is published by different persons, the court shall take into consideration the extent to which it is probable that the statement in question was published directly or indirectly to the same persons, and to that extent may find the wrongdoers to be concurrent wrongdoers.
Common Law and Reform
At common law, the release of a joint wrongdoer released them all. Similarly, a judgment against one discharged all. However, these rules have been modified by the Civil Liability Act.
The Civil Liability Act provides that the release of or agreement (accord) with one wrongdoer discharges the others only if such a release or agreement indicates an intention that the others are to be discharged. If no such intention is indicated, the other wrongdoers shall not be discharged but the person who has suffered injury or loss shall be identified with the person with whom the release or agreement/accord is made in any action against the other wrongdoers.
Accordingly, where the claimant settles a case against one, it will not automatically operate as the satisfaction of the other. If the claimant agrees to accept a portion of his damages against the defendants, the satisfaction of one will not release the others. The defendants will not have rights of contribution. If one judgment is unsatisfied, the claimant may apply to have the deficiency distributed by a secondary judgment against the others.
In an action for contribution by a concurrent wrongdoer, the claim against the other wrongdoers shall be reduced
- in the amount of the consideration paid for the release or accord,
- in any amount by which the release or accord provides that the total claim shall be reduced, or
- to the extent that the wrongdoer with whom the release or accord was made would have been liable to contribute if the claimant’s total claim had been paid by the other wrongdoers,
whichever of those three amounts is the greatest.
The taking of money out of court that has been paid in by a defendant shall be deemed to be an accord and satisfaction with him.
Nature of Concurrent Wrongdoing
A concurrent wrongdoer may be a person who commits a tort civil wrong or breach of contract or trust. Moral fault is not required. Each is referred to as a wrongdoer under the legislation. A tortfeasor under the legislation is a person who has committed a tort / civil wrong.
Concurrent wrongdoers are each liable for the whole of the damage in respect of which they are concurrent wrongdoers. Accordingly, any person liable as a concurrent wrongdoer can be held liable to the claimant for the full amount. Action may be taken against a number of concurrent wrongdoers and the one with the “deepest pocket” may be obliged to pay the loss or damage incurred in full and seek recovery against other wrongdoers). Notwithstanding their liability to contribute, it may not be possible for the defendant who has paid the full award, to recover monies due from the other concurrent wrongdoers.
Where the acts of two or more persons who are not concurrent wrongdoers cause independent items of damage of the same kind to a third person or to one of their number, the court may apportion liability between such persons in such manner as may be justified by the probabilities of the case, or where the claimant is at fault may similarly reduce his damages; and if the proper proportions cannot be determined the damages may be apportioned or divided equally.
The above provision applies to two or more persons whose acts taken together constitute a nuisance, even though the act of any one of them taken alone would not constitute a nuisance, not being unreasonable in degree.
Accordingly, where persons are injured by independent wrongs, at the hands of the independent wrongdoers, the court may apportion liability between them in such manner as is justified by the probabilities of the case. This differs from the case of concurrent wrongdoers, each of whom can be made liable for the whole.
Where the claimant is at fault it may reduce its damages. If the proper proportions cannot be determined, that damages may be apportioned or divided equally.
Action Against Concurrent Wrongdoers
An action may be brought against all of the concurrent wrongdoers or against any of them without joining the other or others. The court shall have power in an action for the execution of trusts, to require the trust estate to be properly represented. The court shall have power in an action where the title to a property is in question, to require the joinder of all those interested or claiming to be interested in the property.
Where judgment is given against concurrent wrongdoers who are sued together, the court may give judgment against the defendants together or against the defendants separately and, if the judgment is given against the defendants together, it shall take effect as if it were given against them separately.
Each of the said judgments shall be for the full amount of the claimant’s damages in respect of which the defendants are concurrent wrongdoers, together with any further damages in respect of which the particular defendant against whom judgment is given is individually liable and, if the damages are apportioned between the defendants on the basis that the total of the damages awarded is meant to be equivalent to the claimant’s loss resulting from the concurrent wrongs, the claimant shall be entitled to judgment against the defendants for the aggregate of such damages.
The claimant may agree to accept an apportionment of his damages among the defendants according to their degrees of fault. In this event, the satisfaction of one judgment shall not operate as a satisfaction of the others and the defendants shall have no right of contribution among themselves.
The claimant, at any time within the period limited by law for the enforcement of judgments and upon proof that, after taking reasonable steps, he has failed to obtain satisfaction of any judgment in whole or in part, shall have liberty to apply for secondary judgments having the effect of distributing the deficiency among the other defendants in such proportions as may be just and equitable.
Where the court would be prepared to award punitive damages against one of the concurrent tortfeasors, punitive damages shall not be awarded against another of such tortfeasors merely because he is a concurrent tortfeasor, but a judgment for an additional sum by way of punitive damages may be given against the first-mentioned tortfeasor. The judgment may specify that such additional sum is awarded by way of punitive damages, and no contribution shall be payable in respect thereof by a tortfeasor against whom such judgment could not properly have
Findings Issues
Where a claimant sues concurrent wrongdoers in separate actions, he will be bound by the findings of fact in the first action. Where he sues one or more of alleged concurrent wrongdoers and judgment is given for one defendant, he is bound by the findings of fact in favour of such defendant in his present or subsequent action against another or others of the alleged concurrent wrongdoers.
Where judgment is given for the defendant on the ground of the injured person’s discontinuance, the injured person shall be bound by the allegations and denials in the defendant’s defence as if they had been found in favour of the said defendant, so far as they are relevant to the defence of that defendant. This does not apply unless, on the facts, the injured person is barred by his discontinuance from bringing a second action against the said defendant.
Where an action is brought against concurrent wrongdoers and judgment is given against one and for another for a reason that goes to the liability of all, the first-mentioned judgment shall be discharged.
For the purpose of the Statute of Limitations or any other limitation enactment, the concealment of fraud by one of the concurrent wrongdoers shall not suspend time for another or others.
Various Issues
Where an action is brought against concurrent wrongdoers and judgment is given against one without reduction of damages and against another subject to a reduction of damages on account of the plaintiff’s contributory negligence, the damages under the first-mentioned judgment shall be assessed subject to the same proportionate reduction.
A concurrent wrongdoer may appeal against the judgment in favour of the injured claimant, even where the other wrongdoer has satisfied the judgment. He may contest as a counterparty an appeal by another concurrent wrongdoer. Where a claimant person has succeeded in a claim against one defendant and is unsuccessful in another, he may appeal the unsuccessful claim.
Where one concurrent wrongdoer pays the full damages determined by court order or agreed, he discharges the other concurrent wrongdoers. However, if he pays in part, there would be a part satisfaction only. Where the claimant has accepted satisfaction from one wrongdoer, he is estopped from denying in subsequent actions, that the person who made the satisfaction was liable to him. He may litigate other questions including issues of liability.
A release agreement with one concurrent wrongdoer discharges others if there is an intention that this be so. In the absence of such an intention, other concurrent wrongdoers may be sued. The claimant is identified with the person with whom the release has been made. Accordingly, in those actions, the amounts received must be taken into account.
A concurrent wrongdoer may recover contribution from any other wrongdoer who is, or would if sued at the time of the wrong have been, liable in respect of the same damage (for this purpose called the contributor), so, however, that no person shall be entitled to recover contribution under this Part from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought.
In any proceedings for contribution, the amount of the contribution recoverable from any contributor shall be such as may be found by the court to be just and equitable having regard to the degree of that contributor’s fault. The court shall have power to exempt any person from liability to make a contribution or direct that the contribution to be recovered from any contributor shall amount to a complete indemnity.
Contribution is not permitted to concurrent wrongdoer from a person who is entitled to be indemnified by him. Accordingly, an employer may not seek contribution from an employee where both are sued and the employer is vicariously liable, where, as is usually the case, there is an obligation to indemnify the employee.
Settlements
Where the claimant has settled with the injured person in such a way as to bar the injured person’s claim against the other concurrent wrongdoers, the claimant may recover contribution in the same way as if he had suffered judgment for damages, if he satisfies the court that the amount of the settlement was reasonable; and, if the court finds that the amount of the settlement was excessive, it may fix the amount at which the claim should have been settled.
Where the claimant has settled with the injured person without barring the injured person’s claim against the other concurrent wrongdoers or has paid to the injured person a sum on account of his damages, the claimant shall have the same right of contribution as aforesaid, and for this purpose the payment of a reasonable consideration for a release or accord shall be regarded as a payment of damages for which the claimant is liable to the injured person: but the contributor shall have the right to claim repayment of the whole or part of the sum so paid if the said contributor is subsequently compelled to pay a sum in settlement of his own liability to the injured person and if the circumstances render repayment just and equitable.