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Accessory Liability in Tort and Equity

Lee Pey Woan

(2015) 27 SAcLJ 853

Unlike the position in criminal law, there does not currently exist a general doctrine of accessory liability in civil law. Thus, a person may be liable as an accessory in equity for dishonestly assisting with a breach of trust, but there is no tort for dishonest assistance. Rather, one who participates in another’s tort will only be liable if he is a joint tortfeasor acting pursuant to a common design with the primary tortfeasor. This article examines the reasons for this divergence and evaluates the case for their assimilation. It observes that, contrary to common perception, the scope of participatory liability in both spheres does not materially differ. It also concludes that the case for assimilation is not made out if the overarching principle for civil accessory liability is defined principally by reference to criminal concepts of complicity. Such an approach overlooks the fundamental distinctions between civil and criminal processes and threatens to extend civil liability beyond acceptable bounds.