The Law Revision Committee Report
146 It was against that background that the Law Revision Committee in England presented its Third Interim Report (Cmd 4637) in July 1934. Para 1 of that Report recorded that the Committee had been asked to report upon four specific topics, one of which was:
"(i) The doctrine of no contribution between tort-feasors. ( Merryweather v Nixan , with special reference to the remarks of Herschell LC in Palmer v Wick and Pulteneytown Steam Shipping Company Limited [1894] AC 318.)
147 The authors stated the law in orthodox fashion in para 3:
"When two or more persons jointly commit a wrongful act, the person injured can recover the full amount of his damage from any one of them. If he does so, the wrongdoer who has paid the whole damage has to bear the whole loss and the other wrongdoers escape liability by reason of the rule of the common law that there can be no contribution between joint tort-feasors."
148 They recognised, in para 4, that this "rule" is one that had come to be subject to various exceptions. They recommended, in para 7, that the common law rule should be changed by giving "a right of contribution in the case of wrongs as in cases of contract". They continued:
"If this were done, joint tort-feasors in the strict sense would be given a right of contribution inter se. We think, however, that such a right might with advantage also be conferred where the tort is not joint (ie, the same act committed by several persons) but where the same damage is caused to the Plaintiff by the separate wrongful acts of several persons. This is the position which frequently arises where the plaintiff sustains a single damage from the combined negligence of two motor car drivers, and recovers judgment against both. Unless engaged in a common design or unlawful purpose, eg racing, such persons are not technically joint tort-feasors. The case of The Koursk ([1924] P 140) shows that where independent acts of negligence result in one injury, the cause of action against each Defendant is separate and distinct; but there is no contribution between the Defendants. Scrutton LJ, quoting from Clerk and Lindsell and from Sir John Salmond with some slight amendment, at p 156, said: " ' Persons are said to be joint tort-feasors when their respective shares in the commission of the tort are done in furtherance of a common design … but mere similarity of design on the part of independent actors, causing independent damage, is not enough; there must be concerted action to a common end' ; still more so when there is not even a similarity of design, but independent negligences accidentally resulting in one damage. This is the view of Sir John Salmond: 'Persons are not joint wrongdoers simply because their independent acts have been the cause of the same wrongful damage' . Salmond on Torts, 5 th Ed pp 84-5. I myself should put 'wrongful' before 'acts' instead of before 'damage' ." Lord Justice Scrutton added at p 158: 'If there is no contribution between joint tort-feasors, there is of course no contribution between independent tort-feasors, and the phrase ' no contribution between joint tort-feasors ' is equally true if read 'no contributions between tort-feasors' ."
We think therefore that when two persons each contribute to the same damage suffered by a third the one who pays more than his share should be entitled to recover contribution from the other."
149 They recommended, in para 8, that the mode of apportionment should be in the discretion of the judge, rather than equal.
150 After considering some other matters not presently relevant, the Committee members continued, at para 11:
"In altering the law on this subject it would seem also desirable to alter the rule that the tort is merged in the judgment even though there is no satisfaction - with the result that a Plaintiff who has sued one tort-feasor to judgment and recovered nothing cannot afterwards proceed against another person equally liable ( Brinsmead v Harrision LR 6 CP 584: 7 CP 547). The merits of such a rule were stated by the Exchequer Chamber, in the case cited, to be that it prevented multiplicity of actions, and that a second jury might award different damages from the first. It is submitted that the rule might be altered in respect of an unsatisfied judgment only, with the provision that a plaintiff should not be entitled to obtain by execution, in the aggregate, more than the amount awarded in the first judgment. The case of "The Koursk", referred to above, shows that the rule does not apply to the case of a judgment against one of several independent wrong-doers whose acts have caused the same damage, but only to judgments against one joint tort-feasor strictly so called. …"
151 Para 12 of the Report was:
"We suggest that in any amendment it should be made clear that the plaintiff is not to be obliged to sue more than one joint tort-feasor, and is still to be entitled to recover the whole of his damages from anyone of the joint tort-feasors."
152 The suggested recommendations, so far as relevant, were:
(I) A judgment recovered against one or more persons in respect of an actionable wrong committed jointly shall not, while unsatisfied, be a bar to an action against any others liable jointly in respect of the same wrong. Provided that the Plaintiff shall not be entitled to levy execution for, or to be paid, a sum exceeding, in the aggregate, the amount of the first judgment obtained against any of the persons so liable, nor to recover the costs of any subsequent action, unless the Judge before whom it is tried is of opinion that there was reasonable ground for bringing it.
(II) Any person who is adjudged to be liable to make any payment or who suffers execution under a judgment recovered against him in respect of an actionable wrong may recover contribution, whether the wrong be a crime or not, from any other person who has been made liable in respect of the same wrong, or who, if sued separately, would have been so liable, unless the person against whom contribution is sought proves that he is by law entitled to be indemnified in respect of his liability by the person seeking contribution. It shall be for the Judge to decide what the amount of the contribution is to be, or whether complete indemnity is to be given.
(III) Where two or more persons have committed independent wrongful acts which have been the cause of the same damage they shall have the same right to contribution among themselves but subject to the same exception as in the case of persons liable in respect of the same wrong.
(IV) If a party to an act alleges that if liable to pay damages he would have a right to contribution from any other person all questions arising between him and such other person relating thereto may be determined by means of third party procedure as prescribed by Rules of Court or in a separate action."
153 Of these recommendations, (I) deals only with joint torts, not with several torts. The first sentence of (I) revokes the rule that a plaintiff who has sued one joint tortfeasor to judgment cannot afterwards proceed against another of the joint tortfeasors. A practical problem that arose from the common law rule about merger of a joint tort in the judgment, was that difficulty in executing on a judgment obtained against less than all of numerous joint tortfeasors meant that no money might actually be recovered from any of the tortfeasors, or less than the full amount of damages awarded might actually be recovered. The proviso in (I) clearly aimed to remove that insolvency risk by permitting an action to be brought against one or more of the joint tortfeasors who had not previously been sued, but on conditions that limited the amount that could be recovered (in the sense of the amount that the plaintiff could actually receive) from all the judgments obtained against all the joint tortfeasors to the amount of the first judgment obtained. This language left it open for judgment in the second action that was brought against a joint tortfeasor to be given for an amount that exceeded the amount of the first judgment given against the joint tortfeasor. However, obtaining that extra amount in the judgment sum would be of no practical use, as there was a prohibition on levying execution for, or being paid, that excess. Further, even if the amount of the second judgment was equal to or less than the amount of the first judgment, the only amount the plaintiff was entitled to be paid pursuant to the second judgment was the difference between the amount awarded by the first judgment and the amount actually recovered under the first judgment. As well, recommendation (I) stated that there should be a costs sanction against bringing any such second action against a joint tortfeasor, in that it was only if the plaintiff convinced the judge that it was reasonable to have brought the action that the plaintiff could recover costs of the second action.
154 Recommendation (II) was to create a right of contribution between joint tortfeasors (and only between joint tortfeasors). That is because the right to contribution that is recommended is that it be recoverable "from any other person who has been made liable in respect of the same wrong or who if sued separately would have been so liable". The phrase "or who, if sued separately, would have been so liable" refers to the possibility, created by the recommendation (I), that it be possible to sue one joint tortfeasor in one action, and another joint tortfeasor in another action.
155 Para (III) of the recommendations is the first place where the recommendations deal with several tortfeasors. It proposes creating a right of contribution amongst several tortfeasors. The recommendation that that right of contribution amongst several tortfeasors be "subject to the same exception as in the case of persons liable in respect of the same wrong" refers back to the exception to the right of contribution between joint tortfeasors that had been recommended in recommendation (II), namely, that the right of contribution exist "unless the person against whom contribution is sought proves that he is by law entitled to be indemnified in respect of his liability by the person seeking contribution".
156 Thus, no recommendation was made that, when there were successive actions against several tortfeasors liable for the same damage, the amount of damages that could in total be collected should not exceed the amount that had been awarded in the first action.
157 The Committee, in para 11, had referred to The Koursk as authority for the proposition that the rule that a joint tort merges in a judgment given for that tort does not apply to a judgment against one of several independent wrongdoers whose acts have caused the same damage. In The Koursk, the plaintiff's ship, the Itria, had sunk, when travelling in a convoy during the First World War, after another ship, the "Clan Chisholm" had collided with it. That collision had been preceded by another collision between the Koursk and the Clan Chisholm. Cross-actions between the Koursk and the Clan Chisholm, and an action by the plaintiffs' ship against the Clan Chisholm were all heard together. In the cross-action between the Koursk and the Clan Chisholm, the Koursk was found two-thirds to blame and the Clan Chisholm one-third to blame. In the action by the plaintiffs' ship against the Clan Chisholm it was held that, as between them, the Clan Chisholm was wholly to blame (141). The Clan Chisholm established a limitation fund, which was exhausted (146). The plaintiffs then proceeded with an action that they had begun against the Koursk. A trial judge in that second action held that the Koursk was liable to the plaintiffs, because the plaintiffs' damage had been caused by two separate acts of negligence (142).
158 As Scrutton LJ put it at 153-4:
"The Itria got judgment against the Clan Chisholm for the whole of the damage, but the Clan Chisholm's limitation of liability would prevent the Itria from recovering a great part of her damage against the Clan Chisholm . The Itria therefore proceeded against the Koursk , as soon as she ceased to be a requisitioned ship, to recover some part of the remainder of her damage."
159 The reported decision in the Court of Appeal relates solely to whether the Koursk and the Clan Chisholm were joint tortfeasors or several tortfeasors concerning the damage that had been inflicted on the Itria. If they had been joint tortfeasors, the cause of action of the Itria against the Koursk would have disappeared by merger in the judgment the Itria had obtained against the Clan Chisholm, and the fact that that judgment had not been paid in full because the Clan Chisholm had established a limitation fund would be of no moment. The point for the present purposes, is that the result of the case (which the Commissioners apparently accepted as being correct) was that in the action against the Koursk it was possible under the existing law for the plaintiff to recover a judgment, notwithstanding that it had received a judgment for the full amount of its liability against the Clan Chisholm.