Joint tortfeasors: who pays when several parties cause one damage
Where several parties are responsible for the same harm, section 11 of the Torts Ordinance imposes joint and several liability. The injured party is not required to apportion responsibility between them, and the internal division is deferred to a second stage between the tortfeasors.
Multiple tortfeasors: two categories
Not every injury is caused by a single person. When several parties contributed to the same harm, tort law distinguishes two main situations:
- Joint tortfeasors - several parties who acted together, in coordination or as part of one act, and caused the damage jointly.
- Separate tortfeasors causing one damage - each acted independently, but the result is a single harm that cannot be divided between the acts.
The distinction matters, but in both categories the practical result for the injured party is similar: liability is joint and several. The injured party is not required to divide the damage between the parties before filing a claim.
Section 11 of the Torts Ordinance: joint and several liability
The rule is set out in section 11 of the Torts Ordinance [New Version]. Where two or more persons are liable for the same act, and that act is a tort, they are liable together for that act as joint tortfeasors and may be sued jointly and severally.
In practice:
- The injured party may sue all of them, or only one.
- A defendant whose liability is established may be liable for the full damage, not only for the share attributed to that defendant.
- The injured party is not entitled to recover twice for the same damage.
The reasoning is that the difficulty of apportioning responsibility between the tortfeasors should not fall on the injured party, and should remain a matter between the tortfeasors themselves.
Source: Torts Ordinance [New Version], section 11.
Damage that cannot be divided
Indivisible damage is a single harm where no defined portion can be attributed to each party. The classic example is a collision between two vehicles in which a pedestrian or a passenger is injured: the injury is one, and it is not possible to say which part of it was caused by each driver.
By contrast, where the damage can be separated - for example where each act caused a distinct, identifiable injury - the court may attribute to each tortfeasor the part that party caused.
Whether damage is divisible is decided on the facts of the case, and there is no single technical test. This is one of the harder stages in cases of this kind, and it directly affects the exposure of each defendant.
Who is sued, and what follows
At the first stage the choice belongs to the injured party, who may sue all of the parties or some of them, and is not required to prove in advance how responsibility is divided between them.
Section 83 of the Torts Ordinance addresses the position where judgment has been given against one tortfeasor. Such a judgment does not, in itself, automatically bar proceedings against a further tortfeasor liable for the same damage, subject to the conditions and qualifications in that section.
At the second stage the initiative passes to the defendant who was sued and paid. That party is not left alone with the whole burden, and may proceed against the other tortfeasors in a separate track.
Source: Torts Ordinance [New Version], section 83.
Contribution between tortfeasors
Section 84 of the Torts Ordinance provides that a tortfeasor liable for the damage may recover contribution from any other tortfeasor who is liable, or who would have been liable if sued, for the same damage.
The section also empowers the court to fix the contribution in an amount it considers just and appropriate, having regard to the extent of each party responsibility for the damage.
The internal apportionment therefore does not disappear - it is deferred to a second stage, conducted between the tortfeasors themselves rather than at the expense of the injured party. In practice this stage requires analysis of relative fault, and at times of insurance and indemnity arrangements between the parties.
Source: Torts Ordinance [New Version], section 84.
Contributory fault of the injured party
The presence of several tortfeasors does not remove the examination of the injured party own conduct. Section 68 of the Torts Ordinance provides that where a person suffers damage partly through that person own fault, the claim does not fail on that ground, but the damages awarded are reduced accordingly.
In a case involving several tortfeasors, contributory fault is examined alongside the apportionment of responsibility between them. The two questions are distinct: one concerns the relationship between the injured party and the damage, the other the relationship between the tortfeasors themselves.
Source: Torts Ordinance [New Version], section 68.
In summary
Where several parties are responsible for the same damage, section 11 of the Torts Ordinance imposes joint and several liability: the injured party may sue whichever of them it chooses, and does not carry the burden of apportioning responsibility in advance. Section 84 moves the internal apportionment to a second stage, between the tortfeasors themselves, according to the extent of each party responsibility. Section 68 adds the examination of the injured party contributory fault.
The difficulty in these cases lies not in identifying the rule but in applying it: whether the damage is divisible, which party it is right to sue, and what weight of responsibility attaches to each. These are questions decided on the facts and requiring professional examination.
If you were injured in circumstances involving several parties, or if a claim has been brought against you for damage you did not cause alone, contact us and we will review the facts and the first step together.
The questions that come up most
Can only one of the tortfeasors be sued?
What happens to a defendant who paid the whole award?
What is the difference between divisible and indivisible damage?
If I also contributed to the damage, is the claim dismissed?
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Defamation Claims: The GuideDefamationRoad Accident Compensation LawMaking a Road Accident ClaimFatal Road AccidentsCompensation from KarnitLiability and Burden of ProofMedical Malpractice ClaimsThe Medical OpinionInformed ConsentPrinciples of liability · Work accidents
Joint TortfeasorsAbsolute LiabilityCompensation for a Work AccidentWork disability claimOccupational diseaseMicrotrauma injuryCommuting the disability pensionSeveral parties involved in one damage?
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