joint and several liability

The use of the words 'joint and several liability' indicates that liability is assigned to multiple defendants for the loss suffered by a claimant. When loss is suffered by a claimant, that loss may at law be caused in whole or in part by a number of different tortfeasors. The particular loss in question may have been caused by the same persons (i.e. joint tortfeasors), or separate and distinct loss may be have caused by the different persons (i.e. several tortfeasors). 'Jointly' and 'severally' have different meanings which both relate to the loss that may be recovered from such defendants.  There is no reason why a group of persons may not be found jointly and severally liable - such depends on the facts of the case.

So when a tort is committed by a number of different persons and causes the same damage, any one of the number of tortfeasors may be sued for the entirety of the loss. Where however different damage is caused by different persons, each person is only liable for the loss that they caused - several liability.

In a case where multiple defendants appear to be involved in the commission of a tort, whether or not joint liability arises may be determined by focusing on the acts that were committed that gave rise to liability in the first place; that is the cause of action. If it is the case that each of the intended defendants could be sued on the same set of facts (the cause of action), for the same liability (including through vicarious liability), then they are joint tortfeasors. Where each is liable for a separate tort, and not the same tort, they are several tortfeasors.

Joint liability may arise where a person:

1. urges, directs or provokes another to commit the same tort
2. actively participates in the commission of the tort
3. participates in a common design, provided that the damage is the same.

A person that facilitates the tort as opposed to bringing about or procuring the tort is not a joint tortfeasor; although liability may arise by participation in a common design.

Several liability arises where different damage is caused by different tortfeasors to the same claimant. Thus the liability of each tortfeasors is separate and distinct because the causes of action are different as liability for loss arises from different acts. In these circumstances, a claimant must recover the separate damage from the particular defendant that caused the damage.

The difference between joint liability and several liability lies in that the damage caused is different in cases giving rise to several liability. Where the damage is the same, joint liability arises between the tortfeasors. There are other consequences, such as releasing one joint tortfeasor will release all other joint tortfeasors from liability. Subject to satisfaction of certain conditions, this is the case for several liability as well.

Usage: The second defendant was jointly and severally liable with the first defendant for the losses caused by infringement of copyright.

Related Words: tortfeasor; cause of action; vicarious liability; common design; law of torts; common design.