Case: The "Koursk" [1924] P 140
Outcome: considered
In the course of oral submissions counsel put the case in this way (at TS 200 ll 25-30): 'Our starting point is very simple, your Honour. When one goes to The Koursk ([1924] P 140) which has been adopted as the foundation of the principle of joint tortfeasorship by the High Court in Thompson's case, [ Thompson v Australian Capital Television Pty Ltd [1996] HCA 38 ; (1996) 186 CLR 574 ] and we've set it out in paragraph 18 of our outline, Scrutton LJ spoke of two persons who agree on a common action in the course of, and to further which one of them commits a tort. And that's the foundation of what are joint tortfeasors. In this case, in our respectful submission, the evidence is clear that Toea, as landlord or land owner, and the stallholders, who are two or more persons, agree on a common action, the common action being the promotion of their joint businesses at the market.' 148 I have previously referred to the applicant's reliance on the decision of the Court of Appeal in The "Koursk" (supra). However I suspect that it has misconceived that decision. The case arose out of a collision at sea involving the "Clan Chisholm", The "Koursk" and the "Itria" , leading to the loss of the "Itria" . The owners of the "Itria" sued the owners of the other vessels, alleging separate and independent acts of negligence against each of them. The question was whether judgment recovered against the owners of the "Clan Chisholm" barred a further action by the owners of the "Itria" against the owners of The "Koursk" . This depended upon whether the two ship owners (of the "Clan Chisholm" and The "Koursk" ) were joint or several tortfeasors. Bankes LJ adopted the following proposition from Clerk and Lindsell on Torts , 7th ed at p 59: '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.' 149 Scrutton LJ said at 155: 'The substantial question in the present case is: What is meant by "joint tortfeasors"? and one way of answering it is: "Is the cause of action against them the same?" Certain classes of persons seem clearly to be "joint tortfeasors": The agent who commits a tort within the scope of his employment for his principal and the principal; the servant who commits a tort in the course of his employment, and his master; two persons who agree on common action, in the course of, and to further which, one of them commits a tort. These seem clearly joint tortfeasor; there is one tort committed by one of them on behalf of, or in concert with another.' 150 The applicant fastens on the proposition concerning two persons who agree on common action in the course of which one commits a tort, submitting that the present case fits that description. However that observation by Scrutton LJ must be read in the context of his Lordship's later remarks at 156 where he referred with approval to the statement in Clerk and Lindsall (to which Bankes LJ had referred), that: ' "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." Still more so when there is not even similarity of design, but independent negligence accidentally resulting in one damage.' 151 At 159 Sargant LJ adopted the same passage. 152 The applicant points to the reference by Scrutton LJ to 'common action' and asserts that in this case, the common action agreed upon between the respondents and each stallholder was 'the function of their joint businesses at the Market' . No doubt the respondents desired that the Market be successful and took steps to achieve that aim. No doubt, too, each stallholder desired that his or her stall be successful and took steps to achieve that aim. However that does not lead to the conclusion that the respondents and each stallholder had agreed on common action. Aims are not actions. The term 'common action' must surely mean 'steps to be taken' . At p 155 of The "Koursk" , Scrutton LJ was identifying common relationships in which joint torts generally occur, rather than the underlying principle which defines the relationship of joint tortfeasors. At 156, his Lordship addressed that principle, holding that each party must share in the commission of the tort in furtherance of a common design, not merely in furtherance of similar designs. 157 At 580-581, the majority (Brennan CJ, Dawson and Toohey JJ) said: '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" ..., for there to be joint tortfeasors "there must be a concurrence in the act or acts causing damage, not merely a co-incidence 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.' 158 At 600, Gummow J (Gaudron J concurring) also identified the decision in The "Koursk" as defining joint liability for the purposes of Australian law. At 601 602, his Honour distinguished the decision in CBS Songs on its fact but did not doubt its correctness. 160 His Honour referred to the The "Koursk" and another case, and then observed that Lord Justice Mustill, in Unilever PLC v Gillette (UK) Ltd [1989] RPC 583: '... stated the common law rule that two persons were joint tortfeasors ... where the two were concerned in a joint act done in pursuance of a common purpose. After reviewing the patent cases and the speech of Lord Templeman in CBS Songs Ltd v Armstrad ... Lord Justice Mustill said at p 609 that the relevant question is whether: (a) there was a common design between B and G to do acts which, if the patent is upheld, amounted to infringements, and (b) B had acted in furtherance of that design. I use the word "common design" because they are readily to hand, but there are other expressions in the cases, such as "concerted action" or "agreed or common action" which will serve just as well.' 162 Hobhouse LJ subsequently referred to The "Koursk" , CBS Songs and Unilever , concluding (at 46) that these cases established that: 'It is only conduct which comes into the first or the third of the categories I have set out above which constitute the commission of a tort. The criminal law for obvious policy reasons goes further than the civil law. Acts which knowingly facilitate the commission of a crime amount to the crime of aiding and abetting but they do not amount to a tort or make the aider liable as a joint tortfeasor.' 164 In Kerly's Law of Trademarks and Trade Names 14 th ed at par 19-044, the learned authors observe, in connection with trademarks, that: 'For the general principles applicable in relation to joint liability based on procurement or common design see CBS v Armstrad and Credit Lyonnais v Export Credit Guarantee Department '. Those decisions are based on that in The "Koursk" . The High Court's view of that case appears from the decision in Thompson v Australian Capital Television and is the relevant test for present purposes. 168 There will be cases in which the relationship between the person who commits a tort and another person may be such as to amount to both authorization (in the case of copyright) and also to satisfy the test for joint tortfeasors laid down in The "Koursk" and Thompson v Australian Capital Television. However to prove authorization is not necessarily to prove infringement. As the present case demonstrates, control does not, itself, imply a common purpose. However the extent of control may be relevant evidence in determining whether such a common purpose existed at the relevant time.