Multiple Defendants: Who To Sue

Multiple Defendants: Who to sue?

1. Claims involving multiple defendants are often complex in terms of the facts, the law and the expert medical evidence. They are claims that we all have some experience of, and the issues involved have no doubt troubled us all to a greater or lesser degree at times.

LEGAL LIABILITY

2. The basic rule is that all persons are entitled to sue and are liable to be sued in negligence and breach of statutory duty. However, where there are multiple potential defendants, the question is “who to sue”? This answer will be determined by considering and balancing multiple factors including potential legal liability, the damage suffered by the claimant, whether the defendant is insured, costs implications, and any other number of factors particular to the case.

3. In terms of potential legal liability, there are numerous multiple defendant situations to consider. This is the starting point of the analysis of “who to sue”. Considering negligence/breach of statutory duty and causation may reveal what may be called a “foundation defendant” or “foundation claim”, but this is not always the case, and in some instances such neat categorisation is not appropriate. In this part of the paper, I am going to consider some common multiple tortfeasor situations.

JOINT AND SEVERAL TORTS

4. The use of the terms joint and several torts indicates that multiple tortfeasors are liable for the damage caused to a claimant. The defendants may be:

a. joint tortfeasors; or

b. several independent tortfeasors causing the same damage; or

c. several independent tortfeasors each causing different damage.

Joint Tortfeasors

5. Defendants are deemed to be joint tortfeasors where the cause of action against each of them is the same: the damage is the same and the same evidence would support an action against each tortfeasor, individually. Consequently, each defendant is liable for the entire damage and loss resulting from the tort. Torts of any kind may be joint.

6. An important authority is The Koursk [1924] P 140. It is a shipping case involving a convoy of five ships. Two vessels collided as a result of separate and independent acts of negligence. As a result, one vessel sank a third vessel. The court held that the causes of action were separate and distinct. The owners of the two ships were not joint tortfeasors.

7. The Court of Appeal endorsed the proposition set out by the authors of the 7th edition of Clerk and Lindell: "Persons are said to be joint tortfeasors 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."

8. An example of joint liability in practice is the case of Brook v Bool [1928] 2 KB 578. Two men (a landlord and his lodger) searching for a gas leak in a lock up shop each examined gas pipes with a naked light. The lodger was examining the upper part of the gas pipe when a severe explosion occurred. The defendant landlord was held liable to the shop owner for the loss and damage even though it was actually caused by the negligent conduct of his lodger.

9. It is fair to say that the concept of “joint design” has proved difficult to apply in practice (for example, see the comments of McCombe J in Mutua v Foreign and Commonwealth Office [2012] EWHC 2678 (QB) at [91]). In the recent case of Fish & Fish Ltd v Sea Shepherd UK [2013] EWCA Civ 544 (another shipping case involving a collision between two ships, each towing cages containing live Bluefin tuna back to a fish farm), the Court of Appeal reconsidered the requirement for a “common design”, with the result that it has a potentially wider import than that envisaged in The Koursk.

10. In Fish & Fish Ltd v Sea Shepherd UK [2013] EWCA Civ 544, the Court of Appeal held that a "common end" could be established through a tacit agreement and that it was unnecessary to prove an intention to commit a tort. It was sufficient for the parties to combine to secure the doing of acts that in the event proved to be tortious.

11. Although the scope of “common design” is now broader, Beatson, LJ, identified three important limits [50]:

a. A common design will not be inferred merely because a person sells a product to another which he knows is going to be used to commit a tort.

b. A common design will not be inferred merely because two entities are closely related.

c. A common design will not be inferred where one person or entity looks on with approval at what another person or entity is planning or doing.

12. The applicability principles of joint liability were again considered by the Court of Appeal in relation to a parent and a subsidiary company in the recent case of Chandler v Cape PLC [2012] EWCA Civ 525. The CA considered whether the evidence was sufficient to justify the imposition of a duty of care on the parent company to protect the subsidiary company’s employees from the risk of injury arising out of exposure to asbestos at work.

13. The facts of the case are regrettably typical. In 2007, the claimant developed asbestosis. By that time, the company that employed him (Cape Building Products Ltd) no longer existed and there was no insurance policy that would indemnify it against claims for asbestosis. The claimant issued proceedings against Cape PLC on the basis that they and Cape Building Products were joint tortfeasors who were jointly and severally liable to pay him damages.

14. The Court of Appeal confirmed that Cape PLC owed a direct duty of care to the employees of Cape Building Products Ltd. Cape PLC had omitted to advise on precautionary measures given its state of scientific knowledge about the nature and management of asbestos risks and the development of asbestosis. The Court of Appeal held that in appropriate circumstances the law could impose on a parent company responsibility for the health and safety of its subsidiary’s employees. Those circumstances included a situation such as in Chandler where:

a. the businesses of the parent and subsidiary were in a relevant respect the same;

b. the parent had, or ought to have had, superior knowledge on some relevant aspect of health and safety in the particular industry;

c. the subsidiary’s system of work was unsafe as the parent company knew, or ought to have known; and

d. the parent knew, or ought to have foreseen, that the subsidiary, or its employees, would rely on it using that superior knowledge for the employees’ protection although it was not necessary to show that the parent was in the practice of intervening in the health and safety policies of the subsidiary.

15. The Court of Appeal held that it was not necessary to show that the parent company was in the practice of intervening in the health and safety policies of the subsidiary. But that it would examine the relationship between the companies more widely and could find that the element of reliance on it using superior knowledge was established where the evidence showed that the parent had a practice of intervening in the trading operations (e.g. production and funding issues) of the subsidiary [79-81].

16. The issue was reconsidered by the Court of Appeal in Thompson v Renwick Group PLC [2014] EWCA Civ 635. The claimant developed diffuse pleural thickening probably as a result by exposure to asbestos dust (his work involved handling raw asbestos) and was at an increased risk of developing mesothelioma and lung cancer. Between 1969 and 1978, the claimant had been employed at two companies. In 1975, the companies were acquired by a subsidiary of the defendants. The problem was that neither employer had liability insurance and therefore could not satisfy any award of damages at trial.

17. Unfortunately, this claim failed. The Court of Appeal confirmed that Chandler v Cape PLC demonstrated that in certain circumstances, there may be a direct duty of care owed by a parent company when the employer is a subsidiary company in a group of companies. However, this was fact specific and dependent on the evidence. There is no automatic inference that there is a dual duty of care in these cases. The court may find there to be joint tortfeasors when the parent company exercises a relevant degree of control, and in particular, where the parent company employs specialist medical and safety officers who are involved in aspects of health and safety in the subsidiary company and ostensibly had "superior knowledge" of the hazards.

18. In Thompson, the claim failed because there was no evidence that the Renwick Group PLC carried on any business apart from holding shares in the subsidiary company. In addition, it did not have “superior knowledge” of the health risks and the need for preventative measures to be taken to protect workers in the mining and manufacture of asbestos and its related products.

General Practitioners

19. General practitioners are often partners under the Partnership Act 1890, although some GPs remain salaried. As a matter of statute law, partners are jointly and severally liable for wrongful acts or omissions of any partner acting “in the ordinary course of the business of the firm” (ss 10 & 12). It is unlikely to be helpful to issue proceedings against all the general practitioners in a surgery if only one partner is alleged to have been negligent. Indeed, this will increase the costs and possibly the complexity of the ligation if multiple experts are instructed. Further, the medical defence unions are generally unhappy if a GP partnership is sued as it increases their costs and workload significantly. Nonetheless, suing the partnership remains an option if a GP is not insured or is underinsured.

Practice Points

20. Where defendants are jointly liable, it is necessary and desirable to sue one defendant only. Where the claimant can show that he has suffered an indivisible injury caused by several defendants he avoids the risks inherent in cases where he suffers different injuries, and subsequently discovers that one defendant is insolvent or uninsured.

21. When deciding which defendant to sue, consideration should be give to whether any party has immunity from suit.

22. A dual duty of care may arise based on two companies being joint tortfeasors when the parent company exercises a relevant degree of control. This will commonly arise where the parent company has "superior knowledge" of the hazards. In terms of “superior knowledge”, this will probably include the parent company employing specialist medical and safety officers who are involved in aspects of health and safety in the subsidiary company.

23. When considering the liability of GPs, not all GPs are partners; some are salaried and are therefore employees.

Several Independent Tortfeasors Causing Different Damage

24. It is not uncommon for a potential personal injury or clinical negligence claimant to have been subjected to a series of events that may all be linked and “causative” of his injury. Sometimes the events will be the acts of third parties other than a prospective defendant, which may or may not be tortious; at other times, the individual’s own actions may have played a part in the causation of his injuries. Third party acts may involve personal injury, clinical negligence, or even assault. Where there are potentially multiple defendants, the causal potency of intervening events that break the chain of causation is important. Therefore, where two or more tortfeasors cause different damage to the claimant, the causes of action are distinct from one another. The claimant can sue each defendant, but can only recover the extent of the damage for which each tortfeasor is liable.

Indivisible Injury

25. In cases of indivisible injury, if the chain of causation is not broken, at common law any tortfeasor will be liable to compensate the injured party for the whole of the damage caused. The reason for this is the difficulty the claimant would otherwise have, as a matter of logic, in proving which defendant had caused what damage[1].

Divisible Injury

26. Where each defendant has caused distinct injury, the Court may choose to limit each defendant’s liability by reference to that fact but this is not always as cut and dried as one might think. In such cases, difficulties often arise in proving which defendant has caused what damage but, if the chain of causation is not broken, a tortfeasor may end up being held liable for more damage than would have been caused by his act alone.

Novus Actus Interveniens

27. In many cases of both indivisible and divisible injuries, an initial tortfeasor will argue that he should not be held responsible for the whole of the damage caused to the injured party (or for additional damage which would not have occurred if not for the later act). This argument will usually be made on the ground that the later act (which may or may not be tortious) has broken the chain of causation between the original act giving rise to the cause of action and the injury, i.e. that the later act constitutes a novus actus interveniens and/or was wholly unforeseeable as a consequence of the initial tort.

28. If an intervening act is found to break the chain of causation, then the original tortfeasor’s actions will usually not be regarded as a cause of any of the damage to the claimant following the intervening act; s/he will, of course, remain liable for any damage that had been sustained prior to the later tortfeasor’s actions, including the probable long-term effects of that damage in the absence of the intervening act.