Case: Thompson v Australian Capital Television Pty Limited [1996] HCA 38 ; (1996) 186 CLR 574
Outcome: applied
as joint tortfeasors arises where two or more persons act in concert in committing a tort: Thompson v Australian Capital Television Pty Limited [1996] HCA 38 ; (1996) 186 CLR 574. Brennan CJ, Dawson and Toohey JJ there observed at 580 to 581 (some citations omitted): The difference between joint tortfeasors and several tortfeasors is that the former are responsible for the same tort whereas the latter are responsible only for the same damage. As was said in The Koursk, ([1924] P 140 at 159-160), for there to be joint tortfeasors, "there must be a concurrence in the act or acts causing damage, not merely a coincidence of separate acts which by their conjoined effect cause damage". Principal and agent may be joint tortfeasors where the agent commits a tort on behalf of the principal, as master and servant may be where the servant commits a tort in the course of employment. Persons who breach a joint duty may also be joint tortfeasors. Otherwise, to constitute joint tortfeasors two or more persons must act in concert in committing the tort. Torts of all kinds may be joint ... Gummow J made like observations at 600. Applied: Louis Vuitton Malletier SA v Toea Pty Ltd [2006] FCA 1443 at [164] , [2006] FCA 1443 ; 156 FCR 158 at 196. See also: Baxter v Obacelo Pty Limited [2001] HCA 66 at [18] , [2001] HCA 66 ; 205 CLR 635 at 646 to 647 per Gleeson CJ and Callinan J. There must be a " joint purpose " in engaging in unlawful conduct if there is to be liability as joint tortfeasors: TS &amp; B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No 3) [2007] FCA 151 , 158 FCR 444. Finkelstein J there thus summarised the position as follows: Joint tortfeasors [177] The common law rule is that one tort may be committed by two or more persons: they are usually referred to as joint tortfeasors. Although the term is commonly used, the concept is not well defined. To be joint tortfeasors it is not sufficient that the independent wrongful acts of two persons have caused the same damage. Those persons are several tortfeasors. In Sir John Heydon's Case (1612) 7 ER 1150 at 1151 joint tortfeasors were described as "all coming to do an unlawful act, and of one party, the act of one is the act of all of the same party being present". The rule goes back to when an action in trespass was principally criminal ( Sir Charles Stanley's Case [1708] EngR 26 ; (1663) 84 ER 1094) but has been extended. There are three classes of joint tort: where a party is vicariously responsible for the acts of another &#8212; as in master and servant, principal and agent and partnership; when there is a breach of a joint duty, be it a statutory or common law duty; and concerted action. [178] As regards the third class (concerted action) to be joint tortfeasors the unlawful act must be for a "joint purpose" ( Clark v Newsam [1847] EngR 531 ; (1847) 154 ER 55) or "concerted action ... towards a common end" ( The Koursk [1924] P 140 at 152). In Thompson v Australian Capital Television Pty Ltd [1996] HCA 38 ; (1996) 186 CLR 574 the High Court accepted as a correct description of joint tortfeasors that given by Sargeant LJ in the The Koursk [1924] P at 159-160, namely that "there must be a concurrence in the act or acts causing damage not merely a coincidence of separate acts which by their conjoined effect cause damage". So, employing the language of criminal lawyers, all persons who aid or counsel direct or join in the commission of a tort are joint tortfeasors : Pratt v British Medical Association [1919] 1 KB 244 at 254 citing Petrie v Lamont [1841] EngR 66 ; (1841) 174 ER 424 at 426. Intent, of course, is not an ingredient of the tort for we are dealing with the civil law, not criminal conduct.