Open Access Research Article
THE DARKSIDE THAT DWELLS IN THE SHADOW OF JOINT AND SEVERAL LIABILITY
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Article Details
THE DARKSIDE THAT
DWELLS IN THE SHADOW OF JOINT
AND SEVERAL LIABILITY
AUHORED
BY - MARIA PHILIP MAMPILLY
&
ROHAN AJOY KADAVAN
ABSTRACT:
The present
holding of the laws on the torts governing that of Joint and Several Liability seems to have certain
discrepancies that, in the opinion of this author, may contradict the very purpose of law and the civilizing
mission the law stands for. In this context, the author in this paper intends to dive into the practicalities and
flaws that have been ‘dwelling in the shadow of Joint and several liability’. The paper aims to establish that the present
laws on these liabilities are unfair and unjust.
The sole idea
behind joint and several liability is that all the parties that are responsible
for causing any sort of damage to a
person are equally responsible for it. In the case of joint liability when two or more tortfeasors cause any
damage to the plaintiff, they have to jointly compensate for the damages they have caused. In the case of several
liability when two or more tortfeasors cause
damages to the plaintiff each tortfeasor has to equally compensate the person
who suffered the damage. Thus, the
law does not preclude the grieved party or parties; i.e.; the plaintiff from suing the wrongdoers individually or selectively or collectively for damage or injury suffered.
For example, if A suffers an injury by the actions of B, C and D, the
position of law allows A to sue B, or
C or D individually or B or C or D alone or B and C and not D etc. or all of
them together. However, in the
opinion of the author this is problematic and unjust. It is important to focus and view the position of law from
the lens of the wrong doers as well. It can be
unambiguously acknowledged that the wrongdoers may not have always
proportionally contributed to the
injury. For example, if A suffers an injury by the actions of B which also involved C and D, as under the present law
A is entitled to sue any of them and every one of them as well, irrespective of whether they are responsible for
the same in the same degrees or not. It is
unjust and unfair to make D liable
for something B has
done though he was a party
to it, the same goes for C. It is also unjust and unfair to make B
liable for the same thing when C and D
has also contributed or been involved in such an action. Moreover, the action
for example could be caused by them
in different degrees say 60%, 21%, 19% by B, C and D. Therefore, it can be without doubt put forth that making
B, C and D jointly and severally liable for the act in the above discussed instance is blatantly unfair and unjust and
does not fit in well within principles
of justice, equity and good conscience. It is also problematic in ways such
that the above situation would be
considered to be the same as such situations wherein B, C and D could be in
actual terms equally or jointly
responsible.
The situation
becomes more problematic when two or more breaches of duty by various parties result in the claimant suffering a single,
indivisible injury. According to the law, the claimant has the right to sue them altogether or
individually for the full amount of his loss resulting to unjustness towards a defendant or the
other.(1530) As a result, additional rules must be in place to deal with the possibility of further
legal actions regarding that damage as well as claims for contribution or compensation made by one
tortfeasor against the other parties.(1530) The author would also like to focus
on the fact that it would be necessary for the claimant
to file many cases,
some of which may involve complicated questions of liability, causation, and
proof, under a system that allowed
him to sue each party merely for a proportionate share of the damage. The claimant would now easily initiate legal
action against the "easiest target" under current legislation. (1530). However, the choice
of “easiest target” or even “desired target” is problematic and unjust, basically on plain terms as one should
not be in trouble for being vulnerable
but because one should be. For example, when the factor of solvency is taken
under notice the very fact that the
insolvent defendant can depend on the solvent defendant to be responsible for the entire compensation
(1530) and also appealing from the standpoint of the solvent defendant, who might end up bearing
complete responsibility for a loss in which he only
played a small, even insignificant role demonstrates how this
law does not advance
equality.
Some
exceptions like the In Holtby v. Brigham & Cowan (Hull) Ltd. 13, even
though the claimant had worked for
multiple companies and had likely been exposed to asbestos at some point, only one of them was held liable
for the asbestosis he later got. (1531) The claimant had been exposed for a proportionate amount of time while working
for the defendant, thus that was the method used to assign blame. (1531)[1],
here we can see the reasoning for the judgement is reasonable because liability is assigned to the one that caused
the most damage. Then there are cases
where the defendant is required to have caused 60 percent or minimum only then
the plaintiff can sue the defendant,
this is another limitation to which joint and several liability can be invoked.
Tort law determines the precise conditions under which a person is liable
for his actions to another. Laws;
according to McBright, bring order and civilization to society[2].
In the opinion of the author, it will
be possible on ideal terms if it is based on the principles of equality,
fairness, good conscience, equity and
justice. The importance of the Latin maxim “audi
alterum partum” is very much
relevant in this context. The purpose of the law is not just to side with the
affected, but also to consider the
perspectives of the wrongdoer and society as well. On the lines of the above discussed,
the author establishes that it is not fair to shift the laws
to the person who caused it or to the beneficiary”
considering the doctrine of joint and several liability. It would be best if the law is made capacious enough
to encompass the nuances of reality and situations possible. It is ideal to make room for such, by way of setting
up a limit or base requirement or criteria in determining liability
of those wrong doers who are stuck in the dark side in the shadow of joint and several liability.
Article Information
THE DARKSIDE THAT DWELLS IN THE SHADOW OF JOINT AND SEVERAL LIABILITY
Authors: MARIA PHILIP MAMPILLY, ROHAN AJOY KADAVAN
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/10/04
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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