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41 1961



Concurrent Fault

Chapter I

Liability of concurrent wrongdoers

Persons who are concurrent wrongdoers.

11. —(1) For the purpose of this Part, two or more persons are concurrent wrongdoers when both or all are wrongdoers and are responsible to a third person (in this Part called the injured person or the plaintiff) for the same damage, whether or not judgment has been recovered against some or all of them.

(2) Without prejudice to the generality of subsection (1) of this section—

(a) 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;

(b) 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;

(c) it is immaterial whether the acts constituting concurrent wrongs are contemporaneous or successive.

(3) 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.

(4) 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.

(5) 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.

(6) For the purpose of any enactment referring to a specific tort, an action for a conspiracy to commit that tort shall be deemed to be an action for that tort.

Extent of liability.

12. —(1) Subject to the provisions of sections 14, 38 and 46, concurrent wrongdoers are each liable for the whole of the damage in respect of which they are concurrent wrongdoers.

(2) 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 plaintiff is at fault may similarly reduce his damages; and if the proper proportions cannot be determined the damages may be apportioned or divided equally.

(3) Subsection (2) of this section shall apply 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.

Joinder of defendants.

13. —An action may be brought against all of concurrent wrongdoers or against any of them without joining the other or others, but the court shall have power—

(a) in an action for the execution of trusts, to require the trust estate to be properly represented;

(b) in an action where the title to property is in question, to require the joinder of all those interested or claiming to be interested in the property.

Judgments to be several.

14. —(1) 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.

(2) Subject to subsections (3) and (6) of this section and to sections 38 and 46, each of the said judgments shall be for the full amount of the plaintiff'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 same jury has in its verdict apportioned damages between the defendants on the basis that the total of the damages awarded is meant to be equivalent to the plaintiff's loss resulting from the concurrent wrongs, the plaintiff shall be entitled to judgment against the defendants for the aggregate of such damages.

(3) The plaintiff may agree to accept an apportionment of his damages among the defendants according to their degrees of fault and, in this event, the following provisions shall take effect—

(a) satisfaction of one judgment shall not operate as satisfaction of the others;

(b) the defendants shall have no right of contribution among themselves;

(c) the plaintiff, 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.

(4) Where the court would be prepared to award punitive damages against one of 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.

(5) The judgment mentioned in subsection (4) of this section 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 been given,

(6) Where, in an action for libel or slander, one of concurrent tortfeasors would have been entitled to a mitigation of the damages payable by him had he been a single tortfeasor, but another of the said tortfeasors would not have been so entitled, the first-mentioned tortfeasor shall be entitled to the said mitigation of damages and shall not be compellable to make contribution except in respect of the amount of damages payable by him; and the judgment against him may be given accordingly.

Judgment by default.

15. —(1) Where one of concurrent wrongdoers who are sued together makes default of appearance or defence, the plaintiff may obtain an interlocutory judgment against him and damages shall be assessed against him—

(a) at the same time as damages are assessed at the trial against the other defendants who appear;

(b) if the plaintiff fails against such other defendants or discontinues his action against them, separately under the interlocutory judgment.

(2) If the plaintiff fails against the defendants who appear for a reason that goes to the liability of all, the interlocutory judgment shall be discharged.

(3) If the plaintiff's damages against the defendants who appear are reduced under subsection (1) of section 34 on account of the plaintiff's contributory negligence, damages shall be assessed under the interlocutory judgment as if the defendant had appeared.

(4) This section shall not apply to any head of damage in respect of which the defendant who makes default and the defendants who appear are not concurrent wrongdoers.

Discharge and estoppel by satisfaction.

16. —(1) Where damage is suffered by any person as a result of concurrent wrongs, satisfaction by any wrongdoer shall discharge the others whether such others have been sued to judgment or not.

(2) Satisfaction means payment of damages, whether after judgment or by way of accord and satisfaction, or the rendering of any agreed substitution therefor.

(3) If the payment is of damages, it must be of the full damages agreed by the injured person or adjudged by the court as the damages due to him in respect of the wrong; otherwise it shall operate only as partial satisfaction.

(4) An injured person who has accepted satisfaction from one alleged to be a wrongdoer, whether under a judgment or otherwise, shall, in any subsequent proceeding against another wrongdoer in respect of the same damage, be estopped from denying that the person who made the satisfaction was liable to him; and the liability of such person shall be conclusively assumed for the purpose of the said proceeding: but the injured person may litigate in the said proceeding any question of law or fact relative to the liability of the defendant to such proceeding, other than the question whether or not the said satisfaction was made by one liable to the injured person.

Release of, or accord with, one wrongdoer.

17. —(1) The release of, or accord with, one concurrent wrongdoer shall discharge the others if such release or accord indicates an intention that the others are to be discharged.

(2) If no such intention is indicated by such release or accord, the other wrongdoers shall not be discharged but the injured person shall be identified with the person with whom the release or accord is made in any action against the other wrongdoers in accordance with paragraph (h) of subsection (1) of section 35; and in any such action the claim against the other wrongdoers shall be reduced in the amount of the consideration paid for the release or accord, or 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 plaintiff's total claim had been paid by the other wrongdoers, whichever of those three amounts is the greatest.

(3) For the purpose of this Part, 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.

Judgment against one wrongdoer.

18. —(1) Where damage is suffered by any person as a result of concurrent wrongs—

(a) judgment recovered against any wrongdoer liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as concurrent wrongdoer in respect of the same damage;

(b) if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered, or for the benefit of his estate, or for the benefit of his dependants, against wrongdoers liable in respect of the damage, the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given; and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the court is of opinion that there was reasonable ground for bringing the action: but this paragraph shall not apply where the judgment first given was an apportioned judgment given in pursuance of section 14, section 38 or section 46.

(2) The reference in this section to “the judgment first given” shall, in a case where that judgment is reversed on appeal, be construed as a reference to the judgment first given which is not so reversed and, in a case where a judgment is varied on appeal, be construed as a reference to that judgment as so varied.

Judgment in favour of one alleged wrongdoer.

19. —(1) Where the injured person sues one or more of alleged concurrent wrongdoers and judgment is given for one defendant, the injured person shall be bound by the findings of fact in favour of such defendant in the injured person's present or subsequent action against another or others of the alleged concurrent wrongdoers.

(2) (a) For the purpose of subsection (1) of this section, where judgment is given for the said defendant on the ground of the injured person's discontinuance, the injured person shall be bound by the allegations and denials in the said 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.

(b) Paragraph (a) of this subsection shall not apply unless, on the facts, the injured person is barred by his discontinuance from bringing a second action against the said defendant.

(3) 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.

(4) 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 under subsection (1) of section 34 on account of the plaintiff's contributory negligence, the damages under the first-mentioned judgment shall be assessed subject to the same proportionate reduction, and the provisions of section 38 shall apply.

Limitation of actions against one of concurrent wrongdoers.

20. —For the purpose of the Statute of Limitations or any other limitation enactment concealed fraud by one of concurrent wrongdoers shall not suspend time for another or others.