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CHANAKYA NATIONAL LAW

UNIVERSITY
CONTRIBUTION BETWEEN WRONG DOERS FOR
PAYMENT OF DAMAGES

LAW OF TORTS

Submitted to: Submitted by:


MRS. SUSMITA DEEPALI SINGH

(Faculty, LAW OF TORTS) Roll No. 1408


TABLE OF CONTENT

ACKNOWLEDGEMENT

RESEARCH METHODOLOGY
CHAPTER 1: ....5
INTRODUCTION

CHAPTER 2: ............................................................6

TORTFEASOR : INDEPENDENT AND JOINT TORTFEASORS

CHAPTER 3 : ....12
LAW GOVERNING THE RIGHTS OF WRNGDOERS FOR PAYMENT OF DAMAGES

CHAPTER 3.1 : IN ENGLAND

CHAPTER 3.2 : IN INDIA

CHAPTER 4: ...15
RIGHTS OF TORTFEASORS INTER SE: CONTRIBUTION $ INDEMINITY

CHAPTER 4.1 MERRYEATHERE CASE

CHAPTER 4.2 ADAMEON V. JARVIS CASE

CHAPTER 5 :- 21

CONCLUSION AND SUGGESTIONS

BIBLIOGRAPHY

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ACKNOWEDGEMENT

Any project completed or done in isolation is unthinkable. This project, although prepared by
me, is a culmination of efforts of a lot of people. Firstly, I would like to thank our Professor
MRS. SUSMITA SINGH for helping me in making the project on CONTRIBUTION
BETWEEN WRONG DOERS FOR PAYMENT OF DAMAGES , for his valuable suggestions
towards the making of this project.

Further to that, I would also like to express my gratitude towards our seniors who were a lot of
help for the completion of this project. The contributions made by my classmates and friends are,
definitely, worth mentioning.

I would like to express my gratitude towards the library staff for their help also. I would also like
to thank the persons interviewed by me without whose support this project would not have been
completed.

Last, but far from the least, I would express my gratitude towards the Almighty for obvious
reasons.

THANKS ALL

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RESEARCH METHODOLOGY
Method of Research:
The researcher has adopted doctrinal method of research. The researcher has made extensive use
of the library at the Chanakya National Law University and also the internet sources and
interviewed many organization related with management of stress.

Research objectives:
1. To know the conditions before and after law reform act of 1935.

2. To examine the contribution of wrong doers for payment of damages.

Research questions:

1. On what basis damages can be claimed from wrong doers?

2. What was the former and the current status of burden of payment on the wrong
doers?

Scope and Limitations


Though the study of the CONTRIBUTION BETWEEN WRONG DOERS FOR PAYMENT OF
DAMAGES is an immense project and pages can be written over the topic but due to certain
restrictions and limitations the researcher has not been able to deal with the topic in great detail.

Sources of Data:
The following secondary sources of data have been used in the project-
1. Cases 2.Books 3 .websites

Method of Writing:
The method of writing followed in the course of this research paper is primarily analytical.

Mode of Citation
The researcher has followed a uniform mode of citation.

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INTRODUCTION

Contribution between wrong doers for payment of damages is mainly the law of
contribution . In order to understand the current law relating to contribution between
concurrent wrongdoers in New South Wales, it is necessary to consider the position with respect
to joint wrongdoers and several wrongdoers(particularly tortfeasors) at common law, and the
changes effected in relation to tortfeasors only by the Law Reform.Joint wrongdoers are those
who can be said to be responsible for the same wrongful act. Situations in which joint
wrongdoers are most commonly found are agency, vicarious liability and common action .Joint
wrongdoers are jointly and severally liable for the whole of the damage suffered by an injured
party, that is, they can each be sued individually for the full amount of the injured partys loss
and can be sued jointly in the same action. This was most commonly the case with respect to
tortfeasors and gave rise to a number of consequences:

1. a judgment against a number of joint tortfeasors could be executed in full against any one of
them;
2. the judgment bar rule was said to have effect so that judgment against one tortfeasor released
all the others;and
3. the release of one tortfeasor, by deed or accord and satisfaction, released all the others (the
settlement bar rule).

Several wrongdoers
Several wrongdoers are responsible for separate wrongful acts which, however, contribute to
the same damage. A simple illustration involves the situation where a passenger in a motor
vehicle suffers personal injury in an accident, caused both by the negligence of the driver of the vehicle
and that of the driver of another vehicle. They are severally liable for the full amount of the damage
suffered by the injured person, but are not jointly liable for the same wrongful act. The judgment bar rule
is presumed not to apply in the case of several wrongdoers, so that the release of one wrongdoer does
not necessarily release the others.

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TORTFEASORS : INDEPENDENT AND JOINT TORTFEASORS

At common law there is a distinction between tortfeasors who are joint wrongdoers and those
who are several wrongdoers.The effects of this distinction, outlined below, have been rendered
all but irrelevant with respect to tortfeasors by provisions of the Law Reform (Miscellaneous
Provisions) Act 1946

Joint wrongdoers
Joint wrongdoers are those who can be said to be responsible for the same wrongful act.
Situations in which joint wrongdoers are most commonly found are agency, vicarious liability
and common action .Joint wrongdoers are jointly and severally liable for the whole of the
damage suffered by an injured party, that is, they can each be sued individually for the full
amount of the injured partys loss and can be sued jointly in the same action. This was most
commonly the case with respect to tortfeasors and gave rise to a number of consequences:
1. a judgment against a number of joint tortfeasors could be executed in full against any one of
them;
2. the judgment bar rule was said to have effect so that judgment against one tortfeasor released
all the others;and
3. the release of one tortfeasor, by deed or accord and satisfaction, released all the others (the
settlement bar rule).

Several wrongdoers
Several wrongdoers are responsible for separate wrongful acts which, however, contribute to
the same damage. A simple illustration involves the situation where a passenger in a motor
vehicle suffers personal injury in an accident, caused both by the negligence of the driver of the vehicle
and that of the driver of another vehicle. They are severally liable for the full amount of the damage
suffered by the injured person, but are not jointly liable for the same wrongful act. The judgment bar rule
is presumed not to apply in the case of several wrongdoers, so that the release of one wrongdoer does
not necessarily release the others.
Contribution
The principle of solidary liability as it applies at present is such that, in general, concurrent
wrongdoers (that is, joint wrongdoers and/or several wrongdoers) are each liable for the whole of
the damage which an injured party has suffered and the satisfaction of that liability by one of the
wrongdoers will discharge all the wrongdoers.The injured party may choose to take action
against any or all of the wrongdoers. This may be achieved by one action or by several. Where a
court holds one of the wrongdoers responsible for the damage, or where one of the wrongdoers
satisfies a judgment for more than his or her proper share, that wrongdoer may in some cases
seek assistance or recompense from the other wrongdoer(s) in meeting the plaintiffs claim.

Such claims are known as contribution claims.


Contribution between concurrent wrongdoers forms merely one part of a wider law of
contribution which spans many areas of traditional legal classification (such as torts,

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contract,equity and restitution) and which is concerned with the circumstances in which a person
(D1) who has made, or is liable to make, a payment to a third person (TP) in discharge of a
liability owed to TP can claim from another person or persons (D2) the whole or part of that
payment because the payment discharges a common liability of D1 and D2 to TP. This wider
body of law not only encompasses contribution claims between co-obligors (such as co-sureties
and insurers) but also claims for general average contribution in maritime law.

This wider law of contribution, however, falls outside the Commissions terms of reference: D1
and D2, in such cases, are not necessarily wrongdoers; nor are they responsible for the same
damage. For the purposes of this reference,contribution can be formally defined as the right of
one defendant (D1) to claim contribution from another defendant (D2) where both D1 and D2
are wrongdoers liable for causing the same damage to the plaintiff (P). The most common
example of such a claim for contribution arises where D1 claims contribution from D2 where D1
has paid Ps damages

JOINT AND SEVERAL LIABILITY

2.1 When a person is injured as a result of someone elses (a defendants) negligence, the
defendant is liable to pay the injured person (the plaintiff) damages calculated as the amount
needed to put the person back into the position they would have been in but for the injury.
1Damages are assessed by reference to the magnitude of the plaintiffs loss, not by reference to
the magnitude of the defendants fault. Once it is established, on the balance of probabilities, that
the defendants breach of duty caused the plaintiffs injury, then the defendant is liable for the
full loss. So, for example, a defendant who causes damage to a Rolls Royce will be required to
pay far more by way of damages than a defendant who, by exactly the same act of negligence,
damages an old beaten up car.
2.2 Where there is more than one defendant, solidary liability comes into play. Solidary liability,
also termed liability in solidumbut more commonly called joint and several liability,
describes situations where each of two or more concurrent wrongdoers is liable severally and all
are liable jointly for the damage caused. For the principle to apply, each defendant must be found
to have breached a duty of care and caused damage to the plaintiff. Solidary liability enables the
plaintiff to take action against any one of the defendants and receive full compensation from that
defendant. It is then up to that defendant, through the system of contribution, to seek to recover a
share of the damages from any other liable defendant. A plaintiff may of course take action
against more than one of the defendants,
3but it may be more convenient for the plaintiff to choose only one defendant and leave it to the
defendants to sort out the issue of apportionment among themselves by way of contribution.
Plaintiffs are not involved at the contribution stage: instead, the defendant against whom
compensation has been recovered bears the responsibility for recovering contribution from the
other defendants. In practice, however, rules of court ensure that the question of contribution is
usually dealt with in the same proceedings as the plaintiffs original action.

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2.3 Where the various defendants appear to have differing capacities to pay, a plaintiff will often
choose to sue the one amongst them who appears to have what is known as the deepest pocket,
that is, the one most likely to be able to pay damages. This is particularly important in cases
where at least one of the other defendants is uninsured, insolvent or otherwise not amenable to
jurisdiction. While in theory, the defendant sued can seek contribution against the others via the
system of solidary liability, in practice it may not be possible to recover contribution from
defendants who are insolvent, uninsured, or otherwise not amenable to jurisdiction. This means
that deep pocket defendants may find themselves being targeted by plaintiffs where they are
one of a number of those responsible for the damage. Concerns about the practical effects of this
on certain types of defendants, and suggestions that liability insurance has become prohibitively
expensive for certain types of professionals and public bodies, have led to calls for the
replacement of solidary liability with a system known as proportionate liability.

PROPORTIONATE LIABILITY

2.4 Proportionate liability differs from solidary liability in that it divides the loss among multiple
defendants according to their respective shares of responsibility. Under proportionate liability, a
plaintiff can only recover from a particular wrongdoer that proportion of the full compensation
which represents the wrongdoers liability. This can be contrasted with the situation at common
law where once a defendant is found to be a cause of the plaintiffs damage that defendant is
liable for all of the foreseeable loss.
4.The theory that defendants should be liable to compensate a plaintiff for only that proportion of
the damage for which they are responsible was first developed in Europe in the nineteenth
century.
5There have been a number of proposals for, and some implementations of, systems of
proportionate liability in a range of jurisdictions. While they vary from jurisdiction to
jurisdiction, most involved some modified or limited form of proportionate liability.

JOINT LIABILITY:If parties have joint liability, then they are each liable up to the full amount
of the relevant obligation. So if a married couple takes a loan from a bank, the loan agreement
will normally provide that they are to be "jointly liable" for the full amount. If one party dies,
disappears or is declared bankrupt, the other remains fully liable. Accordingly, the bank may sue
all living co-promisors for the full amount. However, in suing, the creditor has only one cause of
action; i.e., the creditor can sue for each debt only once. If, for example, there are three partners,
and the creditor sues all of them for the outstanding loan amount and one of them pays the
liability, the creditor cannot recover further amounts from the partners who did not contribute to
the liability.

SEVERAL LIABILITY: The converse is several or proportionate liability, where the parties
are liable for only their respective obligations. A common example of several liability is in
syndicated loan agreements, which will normally provide that each bank is severally liable for its
own part of the loan. If one bank fails to advance its agreed part of the loan to the borrower, then
the borrower can sue only that bank, and the other banks in the syndicate have no liability.

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JOINT AND SEVERAL LIABILITY: Under joint and several liability or all sums, a claimant
may pursue an obligation against any one party as if they were jointly liable and it becomes the
responsibility of the defendants to sort out their respective proportions of liability and payment.
This means that if the claimant pursues one defendant and receives payment, that defendant must
then pursue the other obligors for a contribution to their share of the liability.

Joint and several liability is most relevant in tort claims, whereby a plaintiff may recover all the
damages from any of the defendants regardless of their individual share of the liability. The rule
is often applied in negligence cases, though it is sometimes invoked in other areas of law.

In the United States, 46 of the 50 states have a rule of joint and several liability, although in
response to "tort reform" efforts, some have limited the applicability of the rule. About two
dozen have reformed the rule, with several (Alaska, Arizona, Kansas, Utah, Vermont, Oklahoma,
and Wyoming) abolishing. In some instances it is abolished except where the defendants "act in
concert".[1]

EXAMPLE :If Ann is struck by a car driven by Bob, who was served alcohol in Charlotte's bar
(and the state has dramshop laws), then both Bob and Charlotte may be held jointly liable for
Ann's injuries. The jury determines Ann should be awarded $10 million and that Bob was 90% at
fault and Charlotte 10% at fault.

Under proportionate liability, Bob would have to pay $9M and Charlotte would have to
pay $1M. If Bob does not have any money, Ann only gets the $1M from Charlotte.
Under joint and several liability, Ann may recover the full damages from either of the
defendants. If Ann sued Charlotte alone, Charlotte would have to pay the full $10M
despite only being at fault for $1M. Charlotte would then either have to join Bob as
defendant in Ann's suit against her or would have to pursue a separate action against Bob
for $9M. Regardless of the outcome of that action, Charlotte would remain liable to Ann
for the full $10M.

In a Wisconsin case (Zimmer v. City of Milwaukee), an uninsured driver of a car with faulty
brakes hit and killed a six-year-old boy at a school crossing. The school crossing had a stop sign
and a crossing guard. The plaintiff lawyer argued that the accident might have been avoided if
the crossing guard, instead of signalling the car to stop, had attempted to get the child out of the
car's path. The city (the crossing guard's employer) was found to be one percent at fault. Under
proportionate liability (sometimes also called comparative negligence), the city would only have
been liable for their one percent of the damages. However because the driver was uninsured (and
thus insolvent), the city had to pay 100% of the damages.

In a Florida case,[2] involving an injury on the Grand Prix bumper-car ride at Walt Disney
World, the jury found the plaintiff 14% responsible for her own injury, her then-fiance to be 85%
responsible (he rammed his car into the back of hers) and the Disney Corporation to be only 1%
liable for the injury. The court ordered Disney to pay 86% of the damages - its percentage plus
the husband's percentage - because the husband was unable to pay his portion.

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Arguments for and against joint and several liability

Joint and several liability is premised on the theory that the defendants are in the best position to
apportion damages amongst themselves. Once liability has been established and damages
awarded, the defendants are free to litigate amongst themselves to better divide liability. The
plaintiff no longer needs to be involved in the litigation and can avoid the cost of continuing
litigation. As Dean Prosser observed:

Here again is the typical case that two vehicles which collide and injure a third person. The
duties which are owed to the plaintiff by the defendants are separate, and may not be identical in
character or scope, but the entire liability rests upon the fact that each has contributed to the
single result, and that no reasonable division can be made.[3]

Defenders of the principle of joint and several liability further argue that it protects victims from
being under-compensated if one of the defendants cannot pay his or her share of proportionate
liability. A tortfeasor, even if only 1% at fault, is the better party to shoulder the burden if the
primarily responsible party is unable to compensate the victim fully.

Opponents of the principle of joint and several liability note that its use (instead of proportionate
responsibility) has led to cases in which a party with a very minor part of the responsibility
unfairly shoulders the burden of damages. The classic example is the uninsured drunk driver who
injures someone; the plaintiff will sue both the insolvent drunk driver and the state highway
department (or automobile manufacturer), hoping to hold the latter 1% or 2% responsible,
thereby forcing them to pay the entire award. Joint and several liability, reform supporters argue,
leads to lawyers searching for "deep pockets" to sue (in the expectation that they will settle rather
than risk trial), even though those defendants may only be remotely related to an incident.

Richard Wehe, Assistant Chief Counsel at the California Department of Transportation, said:

I can tell you that in many, many settlement conferences or mediations I am confronted with
plaintiff's lawyer's statements that, 'I only need to establish that the state is 1% at fault and I can
recover all of my economic damages.'[4]

Where a financially wealthy party can be joined as a defendant, a plaintiff has a greater chance of
recovering damages than when the defendants have very limited economic resources or are
financially insolvent, or "judgment proof".

VARIATIONS:As noted above, some jurisdictions have imposed limits on joint and several
liability. For example,

In Ohio after April 2003, only defendants who are responsible for more than 50% of the
tortious conduct can be held jointly and severally liable for economic losses. A defendant
who is responsible but whose tortious conduct was less than 50% is only responsible for
his/her share of the plaintiff's economic loss.[5] Non-economic losses (such as pain and
suffering or loss of companionship) can only be assigned proportionately.
California allows joint and several liability but only for economic damages. [7]

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Hawaii allows joint and several liability for all economic losses but only for non-
economic losses when the underlying tort is intentional, related to environmental
pollution or selected other classes.1

1
LAW REFORM REPORT
http://www.lawreform.justice.nsw.gov.au/Documents/report_89.pdf

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LAW GOVERNING THE RIGHTS OF WRONG DOERSFOR PAYMENT OF
DAMAGES

In England, under common law, it was essential for an indemnity holder to first pay for the
losses and then claim indemnity. With time, Court of Equity softened the law and in 1911 with
the RE: RICHARDSON, EX PARTE THE GOVERNORS OF ST THOMAS HOSPITAL case,
indemnity before payment by the indemnity holder was made the norm. Further in 1914, in the
case of RE LAW GUARANTEE & ACCIDENTAL case, it was stated that to indemnify does not
mean merely to reimburse with respect to the money paid but to save from loss with respect to
liability for which indemnity has been given. A Contract of indemnity would serve little purpose
if the indemnity holder was made liable in the first instance. What if he is unable to meet the
claim in the first instance?

In India, there is no specific provision which states when a contract of indemnity is enforceable.
There have been confliction judicial decisions throughout. OSMAL JAMAL & SONS LTD vs.
GOPAL PURUSHOTHAM [1728] ILR 56 CAL 262, was amongst the first Indian cases where
right to be indemnified before paying was recognised. But now, a consensus of sorts has been
formed in favour of the opinion of Equity Courts. In K BHATTACHARJEE vs. NOMO KUMAR
1899 26 CAL 241, SHIAM LAL vs. ABDUL SALAL 1931 ALL 754 and GAJAN MORESHWAR
CASE, it has been decided that the indemnified may compel the indemnifier to place him in a
position to meet liability that may be cast upon him without waiting until the promisee
(indemnified) has actually discharged it.

Indemnity requires that the party to be indemnified shall never be called upon to pay. Thus, the
liability of the indemnifier commences the moment the loss in form of liability to the
indemnified becomes absolute.

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RIGHTS OF TORT FEASORS INTER SE :- CONTRIBUTION $ INDEMNITY

There is a difference between contribution, subrogation and indemnity. Subrogation and


indemnity are common law rights and are not allowed for voluntary payments. Contribution
between joint tortfeasors, on the other hand, has become a statutory right in most states. Almost
all states have developed Joint Tortfeasor Acts that govern the rights of contribution between
tortfeasors. Liability payments are generally made subject to either a judgment or a
settlement.Most states have held that a defendant has no right to contribution from another co-
defendant based on a settlement payment, if that settlement payment does not extinguish the
liability of the co-defendant. A few states have based this on the fact that a settlement payment
not extinguishing liability of other tortfeasors is a voluntary payment; however, most states make
no mention of the volunteer doctrine in connection with the right to contribution. Most states also
have held that if a payment has been madebased on a judgment, rather than a settlement, the
party making the payment is not barred from subsequently seeking contribution from another
potentially liable party who was not a party to the litigation. 2

Existing Rights of Contribution and Indemnity


The critical issue to be considered in this section is the effect that the Commission's proposed
new statutory right of contribution should have upon any other right to contribution or indemnity
that the parties may already have at common law, by statute, by virtue of either an express or
impUed contractual arrangement made between them, or as a result of any other legal obligation.

Section 2 of the Negligence Act provides, in part, that concurrent tortfeasors are liable to pay
contribution or indemnity in proportion to their respective degrees of fault or negligence "in the
absence of any contract who had no authority to sell it, should be able to claim contribution from
others whom the owner could have sued in conversion.

We further recommend that other decrees of specific relief that discharge or reduce the liability
of a concurrent wrongdoer should be capable of founding a claim for contribution.

In the Commission's Report on Amendment of the Law of Contract (1987), at 147, the
Commission recommended that agreements to pay a stipulated sum on a breach of contract
should be governed by statutorily enacted principles of unconscionability, rather than the
doctrine of penalties. It bears re-emphasizing the distinction made in this Report between
"contribution" and "indemnity". The term "contribution" has been used by the Commission to
refer to a case where one concurrent wrongdoer (Dl), who has paid all, or more than his
proportionate share, of the injured person's damages, seeks payment from another concurrent
wrongdoer (D2) of the amount that exceeds Dl's proportionate share. The determination of
contribution claims is based, at present, on comparative fault or negligence as between the
concurrent wrongdoers. 3

2
REPORT BY ESQUIRE
https://www.cozen .com/admin/files/publications/1486713.pdf
3
REPORT BY ONTARIO LAW REFORM COMMISSION

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The term "indemnity", on the other hand, has been used in this Report to refer to the case where
two persons are liable for the same debt or damages, but the liability of one is primary and the
liability of the other is secondary The determination of indemnity claims is based not on
comparative fault or negligence, but on the nature of the relationship between the parties.

Merryweather v Nixan Case

The case of Merryweather v Nixan, decided in 1799, set down the position at common law that
contribution is not available between joint tortfeasors. The principal reason given by Lord
Kenyon was that he had never before heard of such an action having been brought, where the
former recovery was for a tort.Commentators have taken this to be a reference to the maxim
that an action does not arise from a base cause,that is, that tortfeasors, as wrongdoers, ought
not to be allowed to found a cause of action (in this case, for contribution) on their own
wrongdoing. The decision in Merryweather v Nixanis considered to have been inadequately
argued.Nevertheless the position was later extended to cover non-intentional torts and situations
involving several concurrent tortfeasors as well as joint tortfeasors. The effect of the doctrine of
solidary liability together with the rule in Merryweather v Nixanmade it necessary to enact a
statutory right of contribution between joint wrongdoers. Such a provision generally ensures that
a plaintiffs right to obtain full compensation for an injury is protected without allowing that
plaintiff the apparently unfair discretion of determining which defendant(s) to proceed against
and, therefore, who will ultimately be liable to pay compensation, regardless of individual levels
of responsibility. At the same time, each defendant is expected to pay an amount of damages
equivalent to the extent of that defendants responsibility for the harm sustained by the plaintiff.

Statutory variation of the common law


Statutory exceptions to the rule in Merryweather v Nixan were first enacted in England to allow
apportionment of liability for misrepresentations in company prospectuses in 1890 and
concerning collisions between certain ships in 1911. Changes to the law regarding tortfeasors
generally, as opposed to other wrongdoers, were introduced in 1935 in England by the
Law Reform (Married Women and Tortfeasors) Act 1935.The English legislation
was the result of a report of the English Law Revision Committee.In New South Wales these
changes were reproduced in virtually identical terms in the Law Reform (Miscellaneous
Provisions) Act 1946(NSW). The effects of of the New South Wales Act are as follows:
The judgment bar rule has been abolished by s 5(1)(a) of the Law Reform (Miscellaneous
Provisions) Act 1946 (NSW) so that a judgment recovered against one tortfeasor shall not be a
bar to an action against another tortfeasor who would, if sued, have been liable as a joint
tortfeasor. This puts joint tortfeasors in the same position as several tortfeasors.
The rule that the release of one joint tortfeasor releases all other joint tortfeasors has, in effect,
been abrogated

https://archive.org/stream/reportoncontribu00onta/reportoncontribu00onta_djvu.txt

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