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(p. 615) 25. Capacity and parties 

(p. 615) 25. Capacity and parties
(p. 615) 25. Capacity and parties

Christian Witting

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date: 16 April 2021

Key issues

(1) Capacity

A preliminary issue that might arise in a tort action concerns ‘capacity’. This refers to the status of legal persons and their ability to sue or be sued in tort. Very young children cannot be held responsible in law for the consequences of actions that might otherwise be tortious. However, the law is more accepting of the responsibility of mentally disordered persons, especially where they have some understanding of the nature and quality of their acts.

(2) Concurrent tortfeasors

The claimant’s injury might be the result of the torts of more than one person. In such a case, the claimant can sue all of the responsible persons. However, the law does not require this; it allows the claimant to sue for the full amount one only of the concurrent tortfeasors whose acts combine to cause the same damage. This reduces financial and other burdens upon the claimant in obtaining redress.

(3) Several tortfeasors causing different damage

Alternatively, the claimant’s injuries might be the result of the independent acts of more than one person causing separate items of damage. In such a case, the liability of each tortfeasor is several; each is liable only for the damage that he causes.

(4) Contribution

Statute allows any person successfully sued in tort to seek contribution from other joint or concurrent tortfeasors (under (2) in this list, but not (3)). This might be done in the course of the original action commenced by the claimant, or in separate proceedings between tortfeasors. The law will apportion liability between these parties according to the extent of their responsibility.

Section 1 The Crown

(A) Vicarious liability

Rule Under the Crown Proceedings Act 1947, sub-section 2(1)(a), ‘the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject in respect of torts committed by its servants or agents’. (p. 616) Despite the generality of this statement of the Crown’s vicarious liability, an employee normally must be directly or indirectly appointed by the Crown and paid wholly out of the Consolidated Fund or other specified national funds for this vicarious liability to be triggered.1 The Crown is not vicariously liable for the torts of police officers,2 or for the torts of borrowed employees.

Crown Although the term ‘Crown’ is not defined, the Crown Proceedings Act 1947 does not apply to employees of those bodies that are not deemed to be agents of the Crown. Many public bodies fall outside the Act.3 In such cases, the ordinary law affecting public bodies and public officers will apply. Thus, it is important to be able to determine which public bodies are agents of the Crown. Relevant considerations include the nature of the functions undertaken and the extent to which the body in question is under ministerial control.4

(B) Non-vicarious liability

Rule The Crown Proceedings Act 1947, sub-sections 2(1)(b) and (c) make the Crown liable for any breach of those duties owed at common law to employees, agents, or independent contractors by an employer, and for any breach of the duties attaching at common law to the ownership, occupation, possession, or control of property.

Gap in coverage Sub-section 2(1) does not seem sufficiently wide to encompass all the cases in which an employer is liable otherwise than vicariously. While employers frequently are answerable for the acts of independent contractors—not because the independent contractor has committed a tort in the course of his work, but because the duty is a personal one imposed on the employer—the provision would not seem wide enough to cover breaches of non-delegable duty of this sort.5

Further liability The Crown is liable in tort to the same extent as private persons for breaches of statutory duty that have been imposed on it, provided the duty is imposed also on persons other than the Crown and its officers.6 If the duty is imposed not on the Crown but directly on its employees, and an employee commits a tort while purporting to perform those statutory functions, ‘the liabilities of the Crown in respect of the tort shall be such as they would have been if those functions had been conferred or imposed (p. 617) solely by virtue of instructions lawfully given by the Crown’.7 The Crown has the same liability also as other employers under the Employer’s Liability (Defective Equipment) Act 1969.

(C) Exceptions

(1) Judicial errors

The Crown Proceedings Act 1947, sub-section 2(5) provides that the Crown shall not be liable ‘in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of the judicial process’.8

(2) Armed forces

In Mulcahy v Ministry of Defence,9 the Court of Appeal established that service personnel do not owe their fellows a duty of care in war-like conditions.10 Although the existence of this ‘immunity’ was upheld in Smith v Ministry of Defence,11 the Supreme Court held that it needs to be delimited carefully so as not to extend too far beyond the battlefield. Lord Hope stated:

At the stage when [personnel] are being trained, whether pre-deployment or in theatre, or decisions are being made about the fitting of equipment to tanks or other fighting vehicles, there is time to think things through, to plan and to exercise judgment. These activities are sufficiently far removed from the pressures and risks of active operations against the enemy for it not to be unreasonable to expect a duty of care to be exercised, so long as the standard of care that it imposed has regard to the nature of these activities and to their circumstances.12

Section 2 Companies

Separate personality A company is a separate legal entity, able to enter into contracts, to own property, and to sue and be sued in its own name. It has a liability that is separate from that of its shareholders. Indeed, the ordinary rule is that the shareholders are not liable for the debts of the company in which they invest, except to the extent of any unpaid amounts on the shares that they hold.13

(p. 618) Vicarious liability The company’s liabilities might arise in several different ways. A company will be vicariously liable for the acts and omissions of its employees arising in the course of its business, where these cause loss to outsiders. This kind of liability is exactly the same as that which applies with respect to an employer who is a natural person. Vicarious liability is discussed in chapter 24.

Primary liability of company The more complex issue concerns the primary liability of the company, and the further liability of its directors, officers, and employees when a tort is committed. Let us consider first when the company is primarily liable. Directors are said to act as the company, thereby creating liability in the company, when they make decisions as the directing mind and will of the company.14 They act in this way when making decisions at board meetings or on delegation of decision-making power from the board. The range of persons who could qualify as the directing mind and will of the company was extended by the House of Lords in Director General of Fair Trading v Pioneer Concrete (UK) Ltd & Another (Re Supply of Ready Mixed Concrete (No 2)),15 which held that the court could examine the specific individuals who exercised management and control over the activity constituting the wrong. Given the way that decision-making power within the company may be delegated to particular individuals who are not necessarily board members, the directing mind and will might be found in any delegate holding the decision-making power of the board16 or who is otherwise deemed to embody the company for the purposes of statute or legal policy.17 In these cases, the wrongs of the individuals become the wrongs of the company.18

Directors and officers Where recourse to the company would not be viable, outsiders who have suffered a wrong at the hands of an individual director or officer may look to him for redress. The general principle is that individuals are liable for their own torts. ‘Whether the principal is a company or a natural person, someone acting on his behalf may incur personal liability in tort …’.19 But there must be some act or omission of the director or officer that amounts to a tort. A director will be personally liable for his own statements constituting deceit.20 However, courts are reluctant to impose personal liability upon individual officers of a company for negligent misstatements made while (p. 619) acting for the company. In such cases, it has been held that the claimant must establish the type of proximity that gives rise to an ‘assumption of responsibility’.21 Further, a claim for conversion against a company alleged to have been dealing with the claimant’s goods in a manner inconsistent with its rights is not, prima facie, good as against a de facto director. The fact that the de facto director effectively ran the company and could issue directions to its staff does not create a personal liability in him, when the documents are in the possession of the company and not in him.22

Corporate groups In some cases, the question arises as to the liability of one company within a group of companies for the acts or omissions of another company in the group—usually the liability of the parent company for its subsidiary’s torts. Ordinarily, the courts will respect the separateness of each entity. They will not ‘lift the corporate veil’ in order to fix liability in a company other than that which interacted with the claimant.23 However, there might be cases of evasion of a prior obligation in which courts would be prepared to disregard the strictness of rules of separate legal personality and to extend liability from a subsidiary company to a parent company.24 Further, in Chandler v Cape plc,25 the Court of Appeal held that a parent company had owed a duty of care in negligence to employees of a subsidiary company (since dissolved), who contracted asbestosis during their employment with the subsidiary. This was on the basis of the proximity that arose between the parties, evidenced by parent company control over and decision-making for the subsidiary, especially with respect to matters of health and safety.

Section 3 Mentally disordered persons

When liable If a mentally disordered person has that state of mind which is required for liability in battery, his insanity is no defence.26 The case most directly in point is Morriss v Marsden:27

D violently attacked C, a complete stranger, while he was standing in the entrance hall of a hotel, and D was sued for battery. The defence raised was insanity. Stable J found that D was not in a condition of automatism or trance at the time of the attack on C, but that his mind directed the blows which he struck. He found also that at the material time D was a certifiable lunatic who knew the nature and quality of his acts but, because of his lunacy, did not know that what he was doing was wrong. The defence of insanity was held to be inapplicable.

(p. 620) All that is required in battery is that the defendant must intend to strike the blow at the claimant. In Morriss, Stable J found that the defendant did so intend, and so the defendant was liable. At a more general level, the case supports the proposition that, in tort (as distinct from criminal law), a defendant who intentionally invades the claimant’s protected interest will not be excused simply because he was unaware that the invasion was a wrongful act. According to the Court of Appeal in Dunnage v Randall, the same general rule applies in negligence. A mentally disordered person owes others in physical proximity to him a duty of care to act in a way which meets the objective external standard of action set by the law.28

When not liable In Morriss v Marsden, Stable J went on to say that:

if a person in a condition of complete automatism inflicted grievous injury, that would not be actionable. In the same way, if a sleepwalker inadvertently, without intention or without carelessness, broke a valuable vase, that would not be actionable.29

The logic of this dictum means that a defence will lie in respect of all torts, including negligence30 and those of ‘strict’ liability, in which the defendant’s conduct was, because of his mental disorder, involuntary. As Vos LJ stated in the negligence case of Dunnage v Randall:

People with physical and mental health problems should not properly be regarded as analogous to children, even if some commonly and inappropriately speak of adults with mental health problems as having a ‘mental age of five’.

[O]nly defendants whose attack or medical incapacity has the effect of entirely eliminating any fault or responsibility for injury can be excused …

It is only if the defendant can properly be said to have done nothing himself to cause injury that he escapes liability.31

Under these parameters there will be a defence even if the conduct was intended by the defendant but the tort in question—for example, conspiracy—requires an improper purpose or malice.32

Section 4 Children

(A) Liability

A person is a child until he attains the age of 18 years.33 Childhood as such is not a defence: but like all other defendants, a child is not liable for a specific tort if he lacked the required capacity for legal responsibility. Should a one-year-old infant pick up a letter defamatory of X, written by his father, and throw it through the window, whereupon (p. 621) Y picks it up and reads it, X will have no cause of action for libel against the infant. On the other hand, a 15-year-old youth who pushes a man into a swimming pool can be held liable in negligence and trespass.34

(1) Where the act of the child is also a breach of contract

With certain exceptions, a child is not liable for breach of contract.35 Therefore, where the act of the child is merely an improper performance of one of the acts contemplated by such a contract, it will not be open to the person aggrieved to sue him in tort so as to evade the contractual immunity. But if the act complained of, though performed upon the occasion of a contract, is independent of it, the claimant can sue in tort. Thus, a child who had possession of goods under a hire-purchase agreement and who wrongfully disposed of them to a third party was liable to the true owner for the independent tort of detinue which he committed by wrongfully disposing of them.36

(2) Liability of the parent

Although a claimant might have no cause of action against the child, sometimes he can recover from the child’s parent. The parent might be vicariously liable—for example, if the child is acting as his parent’s chauffeur and drives the car negligently. Similarly, the parent will be liable if he instigates the son’s commission of a tort, or if he has been negligent personally.37 But the parent is not necessarily liable merely because his son has thrown a stone through his neighbour’s window. Unless the parent ordered him to do so, or unless his negligent supervision caused the act complained of, he will not be liable.38

(B) Capacity to sue

Although normally he must sue by his next friend, a child is in the same position as any other claimant when suing in tort. A child can sue either parent and might wish to do so when the parent has an insurance policy (usually comprehensive household insurance) which covers the particular liability.39 But the Court of Appeal has warned against the danger of too readily imposing liability for the ‘rough and tumble of family life’.40 And it is well established that a parent (or someone with quasi-parental responsibility) can lawfully exercise reasonable chastisement in respect of the child.41

(p. 622) Section 5 Joint torts

(A) Categories

There are three broad categories of case in which one person might suffer damage as the result of torts committed by two or more defendants: joint tortfeasors, several concurrent tortfeasors causing the same damage, and several tortfeasors causing different damage.42

(1) Joint tortfeasors

The category of joint tortfeasers43 includes those in the following paragraphs:44

Vicarious liability Where the employer is vicariously liable for the tort of the employee, they are joint tortfeasors.

Procuring tort Where one person procures or prompts another to commit a tort, they are joint tortfeasors.45 An example might arise where the managing director of a company orders an employee to do acts which constitute a tort. But a person who merely facilitated (rather than procured) a tort would not be a joint tortfeasor.46

Concerted action Where two or more persons with a joint purpose take ‘concerted action to a common end’47 and one of them commits a tort they are joint tortfeasors. The boundaries of this principle were the subject of sustained attention in Fish & Fish Ltd v Sea Shepherd UK.48 According to the Supreme Court, liability arises where three elements are satisfied. First, D2 must act to assist D1 in the commission of acts amounting to a tort. D2’s act must be substantial (more than merely facilitative) in nature.49 Second, there must be a ‘common design’ as between D1 and D2 consisting in agreement of some kind (whether explicit or not) that they should work towards a common end.50 Third, the primary wrongdoer must commit the tort regarding which D2’s acts of assistance at least must be a contributing cause.51 The most difficult aspect of this definition concerns the common design element. In the Sea Shepherd case, there were (p. 623) various statements about what would suffice. Lord Sumption held that there must be a shared intention to commit the acts which prove to be tortious,52 while both Lords Toulson and Neuberger would have accepted knowledge in D2 of D1’s intention to commit a tort53 (which is more consistent with the general law in this area).54 Following on from this decision, the Court of Appeal in Glaxo Wellcome UK Ltd v Sandoz Group55 accepted that four companies in a group each had the common intention and design of selling a certain product with a chosen design and get-up so as to create confusion about the origins of the product, thereby committing the tort of passing off (considered in chapter 14). This was in circumstances where each had a role to play in the development, testing, marketing, and sale of the allegedly infringing product. In so holding, Sir Timothy Lloyd stated that ‘if the common design is shared between several parties to a combination, it matters not that some relevant acts are done only by one or some parties and other relevant acts are done by others’.56 But there would be no joint tort in a case where one company merely sold to another company in the same group an infringing product.57

‘Once a party has acted in concert with others in pursuit of a common design with knowledge of its general objects, such party is liable for what occurs in pursuit of those general objects “even though as to some of the incidents [the defendant might] not have anticipated that they would happen”.’58

(2) Several concurrent tortfeasors causing the same damage

Two categories Several, or separate, or independent tortfeasors are of two kinds: those whose tortious acts combine to produce the same damage and those whose acts cause different damage to the same claimant.

Same damage It is convenient to call the first group several concurrent tortfeasors and they alone are illustrated in this section, which is concerned with acts that do not fit into any of the four subcategories of joint tortfeasors previously listed but which result in the infliction of the same damage to the claimant. In Drinkwater v Kimber,59 a passenger in a motor car was injured in a collision between that car and another. Morris LJ said that the two drivers, both of whom were negligent, ‘were separate tortfeasors whose concurrent acts caused injury to the female claimant’. Again, there was concurrent liability in Thompson v LCC,60 where the claimant’s house was damaged when its foundations subsided due to negligent excavation by D1 and a water company, D2, negligently allowing water to escape from its main. Finally, the facts in The Koursk illustrate a case in which there was only one unit of damage that was impossible to divide between the various tortfeasors:61

(p. 624)

The Koursk, while sailing in convoy, negligently changed course so that it bore down on the Clan Chisholm, which was careless in failing to reverse its engines in order to avoid a collision. Immediately after the impact, the Clan Chisholm collided with the Itria. Having recovered damages against the Clan Chisholm for an amount less than the loss suffered (because of a special statutory provision), the Itria sued The Koursk.

The Koursk and Clan Chisholm were held to be several tortfeasors causing the same damage.

(3) Several tortfeasors causing different damage

General Where two or more persons not acting in concert cause different lots of damage to the same claimant they are treated differently in law from either joint or several concurrent tortfeasors. In the straightforward kind of case, the two defendants inflict quite separate lots of damage on the claimant. For example, the first defendant gouges out the claimant’s eye and the second defendant fractures his skull, whereupon the first defendant is answerable only for the damage resulting from the loss of the eye and the second defendant solely for the damage attributable to the fracture of the skull.

Borderline cases While the distinction between this category and several concurrent tortfeasors is clear in theory, there are cases in which it is difficult to decide whether there was an indivisible unit of damage, or whether the harm was capable of apportionment among the several defendants. The courts appear to have taken a sensible attitude in such cases, avoiding, if possible, saddling any one defendant with responsibility for more harm than he has caused. Accordingly, they display a marked preparedness to declare harm to be divisible.62 Thus, in the common kinds of case of harm caused by the independent acts of various defendants—for example, pollution of rivers, or nuisance by smell or noise—the courts will not hold each defendant liable for the entire damage. They will endeavour to ascertain the respective contributions to the harm made by each defendant, and, failing that, they will generally apportion the loss equally between them.63

Asbestos exposure A difficult type of case concerns a claimant who has contracted mesothelioma in consequence of wrongful exposure to asbestos dust on the part of a number of former employers. In Barker v Corus UK Ltd,64 it was held that, where more than one employer had been in breach of a duty (and might therefore have been responsible for the claimant’s mesothelioma), liability should be apportioned among (p. 625) the various former employers according to their respective contributions to the risk of contracting the disease (gauged according to the length and intensity of exposure to asbestos dust).65 While this indicated a clear desire to treat each employer as a several tortfeasor,66 it is not clear why the different periods of risk were viewed as different damage, or even damage at all (given that risk generally is not treated as actionable loss in negligence law).67 This difficulty and others besides68 prompted the government to introduce legislation designed to reverse the decision in Barker, and to put in its place some form of statutory basis for claims by mesothelioma victims. This occurred in the shape of the Compensation Act 2006 (discussed in chapter 5). In Sienkiewicz v Greif (UK) Ltd, Lord Phillips P explained that the principle to be applied was as follows:

When a victim contracts mesothelioma each person who has, in breach of duty, been responsible for exposing the victim to a significant quantity of asbestos dust and thus creating a ‘material increase in risk’ of the victim contracting the disease will be held jointly and severally liable for causing the disease.69

But the Act applies only to cases of mesothelioma, creating disparities in the treatment of other forms of physical injury.70 The resultant liability regime has been the subject of criticism in the Supreme Court. Thus, in Sienkiewicz, Lord Phillips commented that the 2006 Act coupled with the test for causation in Fairchild v Glenhaven Funeral Services Ltd71 ‘has draconian consequences for an employer who has been responsible for only a small proportion of the overall exposure of a claimant to asbestos dust, or his insurers …’.72

(B) Distinguishing between joint tortfeasors, several concurrent tortfeasors, and other tortfeasors

There are four points of note that can be made in relation to the distinctions that exist between the various categories of multiple tortfeasors.

Extent of responsibility Concurrent tortfeasors, whether joint or several, are each answerable in full for the whole damage caused to the claimant. Several non-concurrent tortfeasors are answerable merely for that damage which each has caused. It is often of prime importance to decide, therefore, whether the defendants were acting in concert. Suppose that A and B are engaged on a hunting expedition and both of them simultaneously fire across a highway at game beyond the highway. If a shot injures a highway user, but it is not known which of A or B fired it, they are joint tortfeasors acting in concert, enabling the claimant to recover full damages from either.73 However, if they are several (p. 626) tortfeasors they have not brought about the same damage (for only one has caused damage) and the success of the action depends on proof of the commission of a tort by the one who is sued.74 Questions of divisible harm do not arise where the defendants are joint tortfeasors because each joint tortfeasor is liable in full for all the harm sustained by the claimant.

Satisfaction Satisfaction75 by any concurrent tortfeasor discharges the liability of all the others, whereas satisfaction by a several non-concurrent one does not.76

Joinder The courts are less willing to exercise their discretion under the Civil Procedure Rules to allow joinder of the defendants where the defendants concerned are not concurrent tortfeasors.

Contribution There is in general a right to contribution in the case of concurrent tortfeasors, but not in respect of other tortfeasors.

(C) Contribution

(1) Scope

The Civil Liability (Contribution) Act 1978, sub-section 1(1) provides that ‘any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise)’. At one time, the courts gave a wide interpretation to the meaning of the phrase ‘same damage’.77 However, the House of Lords overruled this broad approach in Royal Brompton Hospital NHS Trust v Hammond (No 3).78

A firm of architects had negligently issued extension certificates to contractors in respect of certain construction work commissioned by a developer. The building work was delayed and the developer sued the architects for negligence. The architects were unable to claim contribution from the contractors who actually carried out the delayed construction. The contractors were responsible for delayed construction per se, whereas the architects (by issuing the extension certificates) had caused the developer to lose the opportunity to sue the contractors for liquidated damages in respect of that delay. The question was whether the loss of opportunity to sue for liquidated damages was to be regarded as the same damage as the delay, per se.

(p. 627) Their Lordships insisted that the words ‘liable in respect of the same damage’ were to receive their ordinary and natural meaning and held that the loss of opportunity to sue for liquidated damage was not the same damage as the delayed construction.

(2) Who may claim contribution?

Under the Civil Liability (Contribution) Act 1978, a person who is liable is entitled to claim contribution from anyone else who is liable.79 This applies even if an out-of-court settlement is reached. Thus, if a defendant can show that, assuming that the factual basis of the claim against him could be established, he would have been liable, he may claim contribution from anyone else who would have been liable with him.80 If the defendant has settled because he was doubtful about his liability in law (even though the facts were established), he can obtain contribution only if he can prove that he was legally answerable, however bona fide and reasonable his decision to settle the claim. Furthermore, if he were liable at the time he made, was ordered to make, or agreed to make the payment, he is entitled to recover contribution even though he has since ceased to be liable either because of the expiry of a limitation period or otherwise.81 And the right to claim contribution passes on the defendant’s death to his personal representatives, whether or not his liability had, before his death, been established or admitted.82

(3) Those from whom contribution may be claimed

Contribution is recoverable from anyone who is liable for the same damage,83 and on the authority of K v P84 it is clear that the defence of ex turpi causa cannot be raised in order to defeat a claim for contribution.85 If one party was originally liable but then ceased to be liable since the time the damage occurred—perhaps because the claimant waived his claim against that person—he would remain liable to make contribution to the other tortfeasor if that second tortfeasor were to be sued.86 By contrast, where a settlement is reached with tortfeasor X but a later action is pursued against tortfeasor Y, the question of whether X (who settled) may be required to contribute to the damages later paid by Y will turn on the construction of the settlement agreement. Jameson v Central Electricity Generating Board87 is the leading case:

(p. 628)

Jameson was exposed to asbestos at work due to the fault of both his employer, X, and the CEGB where the exposure occurred. Jameson agreed a ‘full and final settlement’ with X. When Jameson died, his executors made an additional claim for loss of dependency under the Fatal Accidents Act 1976 from CEGB. It was held that this action could not be brought because of the finality of the wording of the settlement between X and Jameson. That being the case, there was no prospect of CEGB paying the additional sum, and then seeking a contribution to this sum from X.

If, on its proper construction, the settlement between X and Jameson had not ruled out a subsequent action brought by his executors against CEGB, then, in principle, X could have been required to contribute.88 More commonly, the period of limitation for the claimant suing that defendant might have expired (the limitation period being two years after the right to contribution arose).89 However, so long as contribution is sought before the expiry of the limitation period the contribution will be payable.90

(4) Amount of contribution recoverable

Rules By the Civil Liability (Contribution) Act 1978, sub-section 2(1):

in any proceedings for contribution under section 1 above the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question.

Sub-section 2(2) of the same Act provides that:

The court shall have power in any such proceedings to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.

Factors Both the moral blameworthiness and the extent to which the act is directly connected to the damage caused are material in making this apportionment.91 This view that moral blame is not the only criterion is supported by the cases which have authorised apportionment between a defendant liable for negligence at common law and one who was not negligent but who was in breach of a strict statutory duty.92 On the other hand, moral blame alone will suffice where there is no causative potency on the part of one of the defendants.93 Less controversially, where two employers are both (p. 629) vicariously liable for the tort of a shared employee, it has been held to follow from the fact that there is no requirement of fault on the part of the employers held vicariously liable that their liability should be shared equally.94

Liability limits If there is a limit on the amount for which a defendant could be liable to the claimant, by reason of an agreement between the claimant and the defendant, or if the amount would have been reduced by reason of the Law Reform (Contributory Negligence) Act 1945,95 then the maximum amount of contribution is that amount so limited or reduced.96

Indemnity The statute contemplates tortfeasors being entitled to a complete indemnity in some circumstances. For example, where a person who knows that he is not entitled to sell goods authorises an auctioneer to sell them and he does this immediately having been held liable in conversion, the auctioneer is entitled to an indemnity from his principal.97 Most important is the relationship between employer and employee. In Lister v Romford Ice and Cold Storage Co Ltd the facts were as follows:98

D, employed by C, took his father with him as mate. In reversing his lorry, D injured his father who, in an action against C, recovered damages in respect of D’s negligent act. C brought an action against D claiming an indemnity in respect of the amount of the judgment and costs awarded against it.

The House of Lords held that the claimant was entitled to recover from the defendant for breach of the defendant’s contractual obligation of care to his employer.99 It follows that an employer who has been made vicariously liable for the tort of his employee can claim an indemnity from the employee. It was recognised before this decision that when the employer himself was at fault also he would not obtain a complete indemnity but must suffer a reduction in respect of his own fault.100 But these cases were based on the (p. 630) Law Reform (Married Women and Tortfeasors) Act 1935, section 6.101 What remains to be decided is whether, and if so on what principles, a reduction can be made in a claim by the employer based on a breach by the employee of his contract of employment.102


This chapter has considered issues concerned with the capacity of certain parties and principles of joint tort liability. The term ‘capacity’ refers to the status of legal persons and their ability to sue or be sued in tort. We examined the ways in which both government and companies become liable in tort. We saw also that very young children cannot be held responsible in law for the consequences of actions that might otherwise be tortious. However, the law is more accepting of the responsibility of mentally disordered persons, especially where they have some minimal understanding of the nature and quality of their acts.

The issue of joint torts is important because the claimant’s injury might be the result of the torts of more than one person. In such a case, the claimant can sue all of the responsible parties. However, the law does not require this where more than one person is responsible for causing the same damage; it allows the claimant to sue for the full amount one only of the responsible persons. Statute then allows any person successfully sued to seek contribution from other responsible persons. Liability is apportioned between these parties according to the extent of their responsibility for the damage. Alternatively, the claimant’s injuries might be the result of the independent acts of more than one person causing separate items of damage. In such a case, the liability of each tortfeasor is several; each is liable only for the damage that he causes.

Problem question

Yolanda is the director of a small company called Seville Financial Advice Ltd, which provides advice to retirees about investments that they should make in order to ensure that their savings will last through their retirement years. Yolanda failed to take care in putting together some of the advice documents—with the result that retirees became short of funds. Angelo had filled in the relevant forms online and never met Yolanda—although Yolanda did send her 13-year-old son around to deliver the advice documents personally to Angelo because Angelo had been in a hurry. Barbara spoke to Yolanda on the phone and Yolanda promised that ‘my company and I will provide you with bespoke solutions to cater for your retirement needs and we guarantee that you will not need to (p. 631) worry’. After Barbara paid the fee (in an envelope addressed to ‘Yolanda—private and confidential’) the two women met by coincidence at a café and had a quick coffee and a chat.

Advise Angelo and Barbara as to who might be liable to them in negligence.

Visit for answer guidance.

Further reading

Barker and Steele, ‘Drifting Towards Proportionate Liability: Ethics and Pragmatics’ (2015) 74 Cambridge Law Journal 49Find this resource:

Davies, Accessory Liability (2015)Find this resource:

Davies, ‘Accessory Liability for Assisting Torts’ (2011) 70 Cambridge Law Journal 353Find this resource:

Dietrich, ‘Accessorial Liability in the Law of Torts’ (2011) 31 Legal Studies 231Find this resource:

Dietrich and Ridge, Accessory Liability in Private Law (2015)Find this resource:

Ferran, ‘Corporate Attribution and the Directing Mind and Will’ (2011) 127 Law Quarterly Review 239Find this resource:

Lee, ‘Accessory Liability in Tort and Equity’ (2015) 27 Singapore Academy of Law Journal 853Find this resource:

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Oliphant (ed), Aggregation and Divisibility of Damage (2009)Find this resource:

Watts, ‘Principals’ Tortious Liability for Agents Negligent Statements: Is ‘Authority’ Necessary?’ (2012) 128 Law Quarterly Review 260Find this resource:

Witting, ‘The Small Company: Directors’ Status and Liability in Negligence’ (2013) 24 King’s Law Journal 343 (p. 632) Find this resource:


1 Crown Proceedings Act 1947, sub-s 2(6). The exception is that no such liability can be imposed in respect of the infringement of intellectual property rights except in accordance with s 3.

2 For the liability of a chief constable to pay damages out of public funds to those harmed by a policeman’s torts, see the Police Act 1996, s 88 and Weir v Bettison [2003] EWCA Civ 111.

3 Tamlin v Hannaford [1950] 1 KB 18.

4 Bank voor Handel en Scheepvaart NV v Administrator of Hungarian Property [1954] AC 584.

5 Cf Egerton v Home Office [1978] Crim LR 494 (a duty was owed to a sexual offender in prison to keep a protective watch to guard against his being attacked by fellow prisoners).

6 Crown Proceedings Act 1947, sub-s 2(2). The Occupiers’ Liability Act 1957, s 6 provides that that Act shall bind the Crown and that the common duty of care imposed by it shall apply as a statutory duty for the purpose of the Crown Proceedings Act 1947.

7 Crown Proceedings Act 1947, sub-s 2(3). Presumably, this rule applies also where the duty in question is not imposed on persons other than employees of the Crown.

8 See Welsh v CC of Merseyside Police [1993] 1 All ER 692. Under the Courts Act 2003, sub-s 31(1), immunity is granted to a justice of the peace only in respect of acts or omissions ‘in the execution of his duty as a justice of the peace’ and then only so far as those acts or omissions fall ‘within his jurisdiction’.

9 [1996] QB 732.

10 This decision must now be read in the light of: Barrett v Enfield LBC [2001] 2 AC 550; Phelps v Hillingdon LBC [2000] 3 WLR 776.

11 Smith v Ministry of Defence [2014] AC 52.

12 Smith v Ministry of Defence [2014] AC 52, at [95]. See also [99]–[100] (discussing appropriate standard of care. Note that the minority argued persuasively that Lord Hope’s caveats about the standard of care would not be sufficiently effective).

13 Insolvency Act 1986, sub-s 74(2)(d).

14 Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705; Tesco Supermarkets Ltd v Nattrass [1972] AC 153.

15 [1995] 1 AC 456. See also Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500.

16 See Tesco Supermarkets Ltd v Nattrass [1972] AC 153, at 171.

17 Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500.

18 Bilta (UK) Ltd (in liq) v Nazir (No 2) [2015] 2 WLR 1168. This liability base has been applied in criminal, regulatory, and civil proceedings: CA Png, Corporate Liability: A Study in the Principles of Attribution (2001), 19. Note, however, that the Bilta case decided that whether or not a director’s fraud would be attributed to a company depends upon whether the company itself is seeking recompense from the fraudulent directors (no attribution) or third-party victims are seeking recompense from the company (attribution).

19 Williams v Natural Life Health Foods Ltd [1998] 1 WLR 829, at 835. See also Wah Tat Bank Ltd v Chan Cheng Kum [1975] AC 507, at 514–15.

20 Standard Chartered Bank v Pakistan National Shipping Corp (No 2) [2003] 1 AC 959. See also Stone & Rolls Ltd v Moore Stephens [2009] 1 AC 1391, at [132]–[136].

21 Williams v Natural Life Health Foods Ltd [1998] 1 WLR 829. For criticism, see C Witting (2013) 24 KLJ 343.

22 Thunder Air Ltd v Hilmarsson [2008] EWHC 355 (Ch).

23 Prest v Petrodel Resources Ltd [2013] 2 AC 415; Adams v Cape Industries plc [1990] Ch 433.

24 Prest v Petrodel Resources Ltd [2013] 2 AC 415.

25 [2012] 1 WLR 3111.

26 This is so even if the defendant’s insanity causes him to be under a delusion about the surrounding circumstances. The critical thing is that he possessed the state of mind required by the tort in relation to the act done: Buckley and Toronto Transportation Commission v Smith Transport Ltd [1946] 4 DLR 721.

27 [1952] 1 All ER 925.

28 Dunnage v Randall [2016] QB 639, considered earlier in ch 6.

29 [1952] 1 All ER 925, at 927.

30 Dunnage v Randall [2016] QB 639.

31 Dunnage v Randall [2016] QB 639, at [130]–[133].

32 Dunnage v Randall [2016] QB 639, at [155].

33 Family Law Reform Act 1969, sub-s 1(1).

34 Williams v Humphrey (1975) Times, 20 February. For comment on inconsistencies in the law about childhood responsibility, see B Lyons (2010) 30 LS 257.

35 See Minors’ Contracts Act 1987.

36 Ballett v Mingay [1943] KB 281.

37 Donaldson v McNiven [1952] 2 All ER 691; Newton v Edgerley [1959] 3 All ER 337. The duty of school authorities is to take the care also that a reasonable parent would take: see, eg, Ricketts v Erith BC [1943] 2 All ER 629; Rich v LCC [1953] 2 All ER 376.

38 The position in continental Europe is surveyed in P Giliker, Vicarious Liability in Tort: A Comparative Perspective (2010), ch 7.

39 See, eg, Ash v Lady Ash (1696) Comb 357; Young v Rankin 1934 SC 499.

40 Surtees v Kingston-upon-Thames BC [1991] 2 FLR 559.

41 See, eg, R v H [2001] 2 FLR 431 (allegation of assault by father of his son).

42 For full discussion, see Clerk and Lindsell on Torts (20th edn, 2010), ch 4.

43 H Carty (1999) 19 LS 489.

44 Cf The Koursk [1924] P 140, at 155.

45 J Dietrich and P Ridge, Accessories in Private Law (2015), 115–16.

46 PLG Research Ltd v Ardon International Ltd [1993] FSR 197.

47 The Koursk [1924] P 140, at 152. Directors might be joint tortfeasors with a limited company where they directed or procured the tortious act or informed the company for the express purpose of doing a wrongful act: Rainham Chemical Works Ltd v Belvedere Fish Guano Co [1921] 2 AC 465, at 476; or if, after formation, the company adopted a deliberate policy of wrongdoing: Oertli (T) A-G v E J Bowman (London) Ltd [1956] RPC 282, at 292.

48 [2015] AC 1229.

49 [2015] AC 1229, at [21], [23], [37], [49], [57], and [58]. See also PW Lee (2015) 27 SAcLJ 853, 861.

50 [2015] AC 1229, at [23], [37], and [55]. See also Unilever plc v Gillette (UK) Ltd [1989] RPC 583, 609; J Dietrich and P Ridge, Accessories in Private Law (2015), 117.

51 PS Davies, Accessory Liability (2015), 12–13; J Dietrich and P Ridge, Accessories in Private Law (2015), 38.

52 [2015] AC 1229, at [44]. See PW Lee (2015) 27 SAcLJ 853, 862–4.

53 [2015] AC 1229, at [27] and [60] respectively.

54 J Dietrich and P Ridge, Accessories in Private Law (2015), 4, 12–13, 29, 43–60, 93–4, 116–17, and 127–30.

55 [2017] EWCA Civ 227.

56 [2017] EWCA Civ 227, at [31].

57 [2017] EWCA Civ 227, at [32].

58 J Dietrich and P Ridge, Accessories in Private Law (2015), 133, citing Schumann v Abbott and Davis [1961] SASR 149, at 155.

59 [1952] 2 QB 281, at 292. See also Fitzgerald v Lane [1989] AC 328.

60 [1899] 1 QB 840.

61 [1924] P 140.

62 See, eg, Royal Brompton Hospital NHS Trust v Hammond (No 3) [2002] 1 WLR 1397; Niru Battery Manufacturing Co v Milestone Trading Ltd (No 2) [2003] 2 All ER (Comm) 365.

63 Bank View Mills Ltd v Nelson Corpn [1942] 2 All ER 477, esp. at 483 (revd [1943] KB 337); Pride of Derby and Derbyshire Angling Assocn Ltd v British Celanese Ltd [1953] 1 All ER 179. See also Dingle v Associated Newspapers Ltd [1961] 1 All ER 897, at 916. The point was not discussed in the HL: [1964] AC 371. Sometimes the cumulative effect of the actions of D1 and D2 is greater than the sum of their respective contributions—this does not deter the courts from making them liable proportionately for the amount of harm which each would have caused in any event.

64 [2006] 2 WLR 1027.

65 [2006] 2 WLR 1027, at [48] and [109].

66 [2006] 2 WLR 1027, at [62].

67 This point was made in the speeches of both Lord Rodger and Baroness Hale.

68 The most prominent other problem was identified by Lord Rodger: namely, that he could see no ‘logical or otherwise compelling connection between the Fairchild exception and the introduction of several liability’: [2006] 2 WLR 1027, at [87].

69 [2011] 2 AC 229, at [1].

70 [2011] 2 AC 229, at [176].

71 [2003] 1 AC 32.

72 [2011] 2 AC 229, at [58].

73 Arneil v Paterson [1931] AC 560.

74 Cf Cook v Lewis [1952] 1 DLR 1.

75 But note that a mere accord—ie, an agreement by C to accept some consideration in substitution for his strict legal remedy—with a several concurrent tortfeasor does not necessarily have this effect: everything turns on the interpretation of the accord: Jameson v Central Electricity Generating Board [2000] 1 AC 455; Heaton v AXA Equity & Law Life Assurance Society plc [2002] 2 AC 329.

76 And see Bryanston Finance Ltd v de Vries [1975] QB 703. For the effect of C’s accepting payment into court by D1 on his right to sue those others jointly liable, see Townsend v Stone Toms & Partners [1981] 2 All ER 690.

77 See Friends’ Provident Life Office v Hillier Parker May and Rowden [1997] QB 85.

78 [2002] 1 WLR 1397.

79 Civil Liability (Contribution) Act 1978, sub-s 1(1). Contribution may still be claimed from D2 where D1 made a payment in kind (ie, free remedial work): Baker & Davies plc v Leslie Wilks [2005] 3 All ER 603.

80 Civil Liability (Contribution) Act 1978, sub-s 1(4); Arab Monetary Fund v Hashim (No 8) (1993) Times, 17 June.

81 Civil Liability (Contribution) Act 1978, sub-s 1(2).

82 Ronex Properties Ltd v John Laing Construction Ltd [1983] QB 398.

83 Civil Liability (Contribution) Act 1978, sub-s 1(1). The potential contributory might want to be joined in the original claimant’s action as a defendant: see, thus, Davies v DTI [2007] 1 WLR 3232.

84 [1993] Ch 140.

85 On the other hand, those factors relevant to raising the defence are factors of which the court may take note also in fixing the level of contribution (which can be 0%).

86 Civil Liability (Contribution) Act 1978, s 1(3).

87 [2000] 1 AC 455. For a similar ‘constructionist’ approach, see Co-operative Retail Services Ltd v Taylor Young Partnership Ltd [2002] 1 WLR 1419. But note that a properly interested third party may later invite the court to re-examine the meaning of any such agreement: AB v British Coal Corp [2004] EWHC 1372.

88 See, eg, Logan v Uttlesford DC and Hammond [1986] NLJ Rep 541.

89 The relevant date is the date of judgment or, where the case has been settled out of court, the date of the agreement to pay a final sum: Limitation Act 1980, sub-ss 10(3) and (4): Jellett v Brooke [2017] 1 WLR 1177. The period may be extended where the person seeking contribution is under a disability or is the victim of fraud, concealment, or mistake: Limitation Act 1980, sub-s 10(5).

90 Civil Liability (Contribution) Act 1978, sub-s 1(3). The sub-section has a proviso that he is not liable if, on the expiry of the period of limitation or prescription, the right on which the claim against him was based was extinguished. But because most tort actions are not extinguished by limitation—conversion is the important exception—this proviso is of very limited importance in tort.

91 Miraflores (Owners) v George Livanos (Owners) [1967] 1 AC 826, at 845; Brown v Thompson [1968] 2 All ER 708, at 709; Cavanagh v London Passenger Transport Executive (1956) Times, 23 October.

92 Eg, Jerred v Roddam Dent & Son Ltd [1948] 2 All ER 104; Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271.

93 Brian Warwicker Partnership plc v HOK International Ltd [2006] PNLR 5.

94 Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] 2 WLR 428.

95 Suppose that C was injured by defective goods which he bought, but that C was also contributorily negligent. As contributory negligence is not a defence to actions for breach of strict contractual duties (Barclays Bank plc v Fairclough Building Ltd [1995] QB 214), the retailer will be liable in full to C, but his claim for contribution against the negligent manufacturer will be reduced to the extent to which a claim by C against the manufacturer would have been scaled down on account of C’s contributory negligence.

96 Civil Liability (Contribution) Act 1978, sub-s 2(3). The reduction to represent the degree of C’s contributory negligence must be made before assessing the respective contributions of the tortfeasors: Fitzgerald v Lane [1989] AC 328.

97 Adamson v Jarvis (1827) 4 Bing 66. For an illustration of a statutory right of indemnity, see the Civil Aviation Act 1982, sub-s 76(3).

98 [1957] AC 555 (distinguished in Harvey v R G O’Dell Ltd [1958] 2 QB 78, at 106). And see Vandyke v Fender [1970] 2 QB 292, at 303.

99 The Report of the Inter-Departmental Committee (1959) set up by the Ministry of Labour and National Service concluded that the decision raised no practical problem and that no legislative change was called for at that time. Moreover, in Morris v Ford Motor Co Ltd [1973] QB 792, it was held that the agreement in that case, being in an industrial setting so that subrogation against employees was unrealistic, contained an implied term excluding subrogation against them.

100 Eg, Jones v Manchester Corpn [1952] 2 QB 852. Where the employer’s liability is purely vicarious, involving no personal fault, he will obtain a 100% contribution from the negligent employee under the Civil Liability (Contribution) Act 1978, as in Harvey v R G O’Dell Ltd [1958] 2 QB 78.

101 Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555 left open the question whether an indemnity under the Act could also have been given.

102 How far the Law Reform (Contributory Negligence) Act 1945 applies to a suit in contract is obviously pertinent. But see Barclays Bank plc v Fairclough Building Ltd [1995] QB 214 ruling out its applicability in relation to strict contractual duties.