Case: The Koursk [1924] P 140
Outcome: cited
In the present case, there is a single course of infringement (the creation of the Vawdrey Engineering Drawings and the resulting manufacture of trailers) of a single copyright (the Krueger Drawings). Both Camerons and Vawdrey joined in that infringement in that Vawdrey could not have completed its drawings and manufacture without receiving instructions, based on the Krueger Drawings, from Camerons, and Camerons could not have completed the infringement without the execution by Vawdrey of those instructions. Each participated in committing the wrong of which Krueger now complains and thus the liability of each for the damage sustained by Krueger as a consequence of commission of that wrong is to be determined as if each was a joint tortfeasor with the other: The Koursk [1924] P 140 , cited with approval in Louis Vuitton Malletier SA v Toea Pty Ltd [2006] FCA 1443 ; (2006) 156 FCR 158 at [149] ; see also Balkin and Davis, Law of Torts (3rd 2004) at [29.24]-[29.41]. 22 In TS &amp; B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No 3) (2007) 158 FCR 444 at [177]-[178], Finkelstein J described joint tortfeasors in the following terms: 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 Haydon's Case [1572] EngR 356 ; (1612) 77 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 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. As regards the third class (concerted action) to be joint tortfeasors the unlawful act must be for a "joint purpose" ( Clark v Newsam and Edwards [1847] EngR 531 ; (1847) 154 ER 55) or "concerted action... towards a common end" ( The Koursk [1924] P140, 152). In Thompson v Australian Capital Television Pty Limited [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] 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. 25 Dowsett J helpfully canvassed the principal tort authorities in Louis Vuitton at [148]-[170]; see also Bialkower v Acohs Pty Ltd (1998) 83 FCR 1 , 12. In deciding whether two defendants should be held jointly liable for copyright infringement, his Honour also relied on The Koursk , concluding that it must be shown that they acted in concert; that is, that there was a "concurrence in the act or acts causing damage, not merely a coincidence of separate acts which by their conjoined effect cause damage": Louis Vuitton at [171]. Again, this is such a case. Camerons and Vawdrey concurred in the acts which caused Krueger the damage of which it complains; there was more than a coincidence of separate acts joining together to cause damage to Krueger. Accordingly, each of Camerons and Vawdrey is jointly and severally liable for the copyright infringement.