clr/1982/1982_1_263.pdf

(1)of the Civil Wrongs Law, Cap. 148 as introduced by Law 54/78—Is of a procedural nature and has retrospective effect. Civil Wrongs—Contribution—Joint tort-feasors—Husband and wife —Section 10

(1)of the Civil Wrongs Law, Cap. 148,introduced by Law 54/78—Is of a procedural nature and has retrospective effect—Section 64

(1)of Cap. 148. The respondents-plaintiffs, who are husband and wife, brought separate actions against the appellant-defendant claiming damages for personal injuries they sustained ina collision between a car driven by the appellant and a car driven by the husband. The trial Court apportioned liability for the accident at 30% on the part of respondent 1 and 70% on the part of the appellant andawarded damages accordingly; but, relyingon sections 10

(1)* and 64

(1)** of the Civil Wrongs Law, Cap. 148, dismissed the * Section 10

(1)reads as follows: "10

(1)Noactionshall bebrought inrespectofanycivilwrongcommitted before or during the subsistence of a marriage by either party thereto or any person representing his or her estate against the other party thereto or any person representing his or her estate: Provided that any spouse may, for the protection and security of his or her own property, bring an action against the other for any civil wrong committed by him or her in connection with such property". ** Section 64

(1)reads as follows: "64

(1)Where damage is suffered by any person as a result of a civil wrong,anyjoint wrongdoersliableinrespect ofthatdamagemayrecover contribution from any other wrong doer who is, or would, ifsued, have been, liable in respect of the same damage, whether asjoint wrong doer or otherwise, so, however, that no person shall be entitled to recover contribution under thissectionfrom anypersonentitled tobe indemnified by him in respect of the liability in respect of which the contribution is sought". 263 Vamavides v. Ioannou & Another

(1982)appellant's counterclaim against the husband for "indemnity and/or contribution to such an extent as the Court may determine in respect of any sum that the defendant may be adjudged to pay be way of damages" to the wife. The defendant appealed; and after hearing the appeal the Supreme Court reserved judgment. On October 20, 1978 there was enacted Law 54/78 by means of which section 10

(1)of Cap. 148 was repealed and the new section read as follows: 5 "10

(1)Subject to the provisions of this section, each of the parties to a marriage shall have the like right of action 10 in tort against the other as if they were not married". On February 19, 1979, counsel for the appellant filed an appli­ cation for the re-opening of the hearing of the appeal to which counsel for the respondent raised no objection. At the re­ opened hearing of theappeal Counsel for the appellant submitted that the new section 10

(1)of Cap. 148 is of a procedural nature and, therefore, it has retrospective effect and makes feasible in law an action by one spouse against anotherin respect ofcivil wrongs committed before its enactment. Held, that the new section 10

(1)of the Civil Wrongs Law, Cap. 148 is of a procedural nature and has retrospective effect. 15 20 Application granted. Cases referred to: Littlewood v. G. Wimpey & Co. Ltd. [1953] 2 All E.R. 915; Barber v. Pigden [1937] 1 Κ Β 664; Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd. [1970] 2 AU'E.R. 871; Wilson v. Dagnall [1972] 2 All E.R. 44; Attorney-General v. Vernazza [1960] A.C.

1. 25 Application. 30 Application by defendant for the re-opening of the hearing of an appeal, made by him against thejudgment of the District Court of Nicosia (Stavrinakis, P.D.C.) dated the 31st January, 1975 (Consolidated Action Nos. 6965/71 and 6966/71) whereby he was ordered t o pay t o the plaintiffs general and special damages 35 for personal injuries as well as othei material losses sustained in a road traffic accident. A. Dikigoropoullos, for the appellant. A. Ladas, for the respondenis. Cur. adv. vult. 264 40 1 C.L.R. Varnavides v. loannou & Another HADJIANASTASSIOU J. read the following judgment of the Court. In the present consolidated Actions Nos. 6965/71 and 6966/71, the two plaintiffs, husband and wife, brought two actions against the defendant claiming general and special 5 damges for personal injuries received, as well as other meterial losses sustained in a toad traffic accident which occurred near the Nicosia airport. The accident was allegedly due to the negligence of the defendant Christakis Varnavides. On the other hand, the defendant counterclaimed against the plaintiff Ίθ-^Jn Action No. 6966/71, Christophoros loannou, for personal injuries^received and other damages sustained. Just before the commencement of the hearing, an agreement was reached on the following issues relating to the damages, subject alwaystotheissue of liability which remainedcontested. 15 Regarding Action No. 6966/7!—Claim: £325.— general and special damages. Counterclaim: £155.— special damages. On the issue of general damages the certificate of Dr. Pclidcs, dated 3rd October, 1972, was produced by consent as exhibit No.
2. Regarding Action No. 6965/71 thereis no counterclaim 20 andthespecial damages have beenagreed at£220.—. Regarding general damages, two medical certificates Were produced by consent as exhibits Nos. 2 and 3, issued by Dr. HadjiKakou. dated 31st March, 1972 and by Dr. Pelides dated 3rd October, 1972, respectively. 25 Theplaintiff,inAction No. 6965/71,Sophoula Christophorou, isthewife of th2plaintiff intheotheraction. Thetwo plaintiffs had received injuries as a result of a collision between their car and that of the defendant. The defendant also received personal injuries and his car was damaged. The trial Judge, 30 having heard evidence as to the issue of liability and arguments by both counsel both as to the constitutionality of section 10 of the Civil Wrongs Law Cap. 148 and as to the interpretation of section 64

(1), proceeded and dealt (

1. a)with the issue of lia­ bility and (
2. b)with the assessment of general damages for the 35 plaintiff in Action No.6965/71 and for the defendant in Action No. 6966/71. Thetrial Judge had before himtheevidence regarding liability and having listened to the versions of the parties and of their witnesses, made hisfindingsof fact and relying on the evidence 265 Hadjianastassiou J. Varnavides v. loannou & Another

(1982)of an independent witness, Marios Georghiades, (D.W. 2), reached the conclusion that both drivers wereto blame for the accident which occurred during the hours of darkness on September 4th,

1. The defendant, however, was found more to blame than the plaintiff, and the liability was 5 apportioned at 30% on the part of the plaintiff and 70% on the part of the defendant. The trial Judge then dealt with the question of general damages for the defendant in Action No. 6966/
2. Christakis Varnavides, and bearing in mind the report of Dr. Pelides and after taking into consideration the factor 10 of pain and suffering, awarded to him the sum of £600.— as suchdamages. With regardto thequestion ofgeneral damages for theplaintiff inAction No.6965/71,Sophoula Christophorou, a dressmaker, and having gone through the medical reports of Dr. Pelides and Dr. HadjiKakou the trial Judge had this 15 to say at p. 43:"Considering the pain and suffering the plaintiff had to put up with during the initial stages of her treatment, the inconvenience and discomfort of having her arm in plaster cast for 3 months, the increased chances of osteoarthritis, 20 the occasional pam she experiences in her work and during changeable weather and the slight permanent bowing angulation ofherarm,thedamagesareassessedat£750.—". Regarding the damages the picture so far is as follows:"

(1)The plaintiff inAction No. 6966/71isentitled to£227.500 25 mils, i.e. 70% of..£325.— agreed general and special damages.

(2)The defendant in the same action isentitled to £226.500 mils, i.e., 30% of £600.— general plus £115.— agreed special.

1. The plaintiff in Action No. 6965/71isentitled to £970— i.e., £750.— general plus £220.— agreed special". Regarding the contribution claimed by the defendant in Action No. 6966/71, he counterclaimed the plaintiff for any amount to the extent of the plaintiff's contribution which the 35 defendant is adjudged to pay to the plaintiff in Action No. 6965/
2. Indeed, in that case the same amount is £291.— i.e. 30% of £970.—. 266 30 1 C.L.R. Varnarides v. loannou £ Another Hadjlanastastiou J. Then the trial Judge made this observation: 5 "If the plaintiffs in the two actions were not husband and wife then there would have been no difficulty in making the order but for the provisions of sections 64

(1)and 10

(1)of Cap. 148, the matter is not at all easy". Learned counsel for the defendant invited the Court at that stage to interpret the woid "liable" appearing in section 64

(1)of Cap. 148inthe sameway asLord Denning did in hisdissenting judgment in the case of Littlewood v. G. Wimpey&Co. 10 Ltd., [1953]2All E.R. 915. Thetrial Judge quoted this section and observed that our section is identical to section 6

(1)of the Law Reform (Married Women and Tortfeasors) Act 1935. Indeed the majority view in the Littlewood case was that the word "liable" in section 6

(1)of the 1935 Act should be inter15 preted as meaning "held liable" and not "responsible at law". With that in mind, the trial Court had this to say at p. 45:- 20 25 "There is no doubt in my mind that the interpretation given by Lord Denning circumvents many injustices caused by the said Section when taken in conjunction with other statutory provisions, but having in mind the view of the other judges on the point, I am unable to accord to the word 'liable' in section 64

(1)of our Law the meaning accorded to it by Lord Denning. The word does not stand alone but is tied together with the phrase 'if sued'. Thetwo phrases taken together can have no ether meaning but 'sued to judgment'." - Then the trial Court having quoted a number of othet cases concluded as follows:- 30 35 "As the section stands, however, it is not possible for such an interpretation to be accorded to it without the actual amendment of the section but this of course is not within thedomainoftheCourtsbutthat ofthelegislativeauthority. In the result, the argument of the defendant that,the word 'liable' in section 64

(1)of Cap. 148 should be interpreted as meaning 'responsible at law', fails". On the issue of the constitutionality of section 10

(1)of the 267 Hadjianastassiou J. Varnavides v. loannou & Another

(1982)Civil Wrongs Law Cap. 148and after quoting a number of relevant cases, the trial Judge concluded as follows:"For all the above, I am not satisfied at all that section 10

(1)is contrary to the Constitution, in fact I entertain no doubt whatsoever about its constitutionality and good reason. Moreover, I consider it a reasonable and necessary differentiation serving very well the demands of our society. It may also be said that its necessity is dictated by considerations of public policy and good social order1'. 5 On appeal counsel for the appellant-defendant, Christakis 10 Varnavides made it clear that his appeal is against so much of the said judgment as it adjudged that the defendant was not entitled to indemnity and/or contribution from the plainiifi in Action No. 69/71, Sophoula Christophorou, in respect of the amount that the defendant was adjudged to pay to the plain- 15 tiff in Action No. 6965/71. Indeed, the ground of appeal and the reasons givenarc these:"J. That the learned trial Judge misdirected himself in constiuing 'who is liable' in section 64

(1)of Cap. 148 to mean 'who is held liable' or 'sued to judgment' in thai 20 such construction: (

1. a)Is contrary to the primary rule of literal construction, and/or to the ordinary meaning of the words used and/or their giammatical construction, and/or of the principle of construction ut res magis valeat quam 25 pereat. (
2. b)Is tantamount to a judicial paraphrase of the section in question and presumes an intention to the legislature which is not in accord with reason and justice (His Honoui the trialjudge does admit that this construction 39 leads to injustice- pp. 9 letter D and 18E of his judgment). (
3. c)Affords to one of two- wrong doers the opportunity to profit by his own wrong. 2. Without prejudice to the aforesaid and/or in the alterna- 35 tive and in the event of it being found that the construction placed by the learned trial judge upon the said 268 1 C L.R. 5 Vamarides v. loannou & Another Hadjlanastassioo J. sections 64

(1)and 10

(1)of Cap. 148 was, in thecircum­ stances,theproperonetofollow,sections 10

(1)and64

(1)of Cap. 148 are unconstitutional,being contrary to the provisions of Articles 23, 28 and 30 of theConstitution in that the said sections infringe the rights of property, equality and fair trial". Having heard full argument by both counsel, we reserved judgment,but on the 19thFebruary, 1979, Mr.Dikigoropoullos applied, on behalf of the appellant-defendant Varnavides, for 10 the re-opening of this case. His application was based on two points:(a)Whether theCourtwas empowered to re-openthehearing of the appeal which was concluded and judgment had been reserved; and (b) if it decides that it has authority or power 15 to re-open it to decide whether the new Law 54/78 has retro­ spective effect or not and whethei it would affect the merits of this case. Quite faiily, in our view, Mr. A. Ladas, counsel for the respondents-plaintiffs raised no objection to the appeal being re-opened. 20 25 30 Before proceeding further with the argument of Mr. Dikigoropoulos, we find it convenient to quote section 10

(1)of the Civil Wrongs Law Cap. 148,which before itsrecent amendment by Law 54/78 enacted on20th October, 1978,was as follows:"10

(1)No action shall be brought in respect of any civil wrong committed before or during the subsistence of a marriage by either party theretoorany person representing his or her estate against the other party thereto or any person representing his or her estate: Provided that any spouse may, for the protection and security of hi" or her own property,bring anaction against the other for any civ'I wrong comm'ttcd by him or hsr in connection with such property". Indeed,theproviso to sub-section

(1)of section 10wasintro­ duced by section 4 of Law 38/53. 35 Section 10

(1)has now been repealed and substituted by a new section which provides:"10

(1)Τηρουμένων των διατάξεων του παρόντος άρθρου, 269 Hadjlanastasstou J. Varnavides v. loannou & Another

(1982)εκάτερος τών συζύγων θα εχη τό αυτό δικαίωμα νά έγείρη αγωγην εναντίον τοΰ έκατέρου, 5Γ άστικόν αδίκημα, ώ$ έάν δέν ήσαν συζευγμένοι". And in English it reads:"10

(1)Subject to the provisions of this section, each of the parties to a marriage shall have the like right of action in tort against the other as if they were not married". 5 The question, therefore, which we must answer in this case is whether the new section 10

(1)makes feasible in law an action for onespouse against anotherin respect of civilwrongs commit- 10 ted before the enactment of Law 54/78. Mr. Dikigoropoulos in effect submitted that section 10

(1)of the Civil Wrongs Law Cap. 148 as it stood earlier merely set up a procedural barrier to actions between husband and wife and that its repeal removed this barrier. There is no doubt, he added, that being a proce- 15 dural matter, Law 54/78 should be given retrospective effect. Counsel lelied on the well-known case of Barber v. Pigden, [1937] 1 K.B. 664. Pausing here for a moment, it appears that this case lays down according to Scott L.J. that the canon against giving 20 a retrospective force to a statute, in the absence of specific provision, expresses no rigid or absolute rule. It does not apply to a statute dealing with procedure, nor semble, does it apply to a statute abolishing old legal fictions. Indeed, both Mr. Dikigoropoulos and Mr. Ladas did their best to assist 25 us on the implications of the repeal of section t0(l) of Cap. 148, examined together with section 64

(1)of the Civil Wrongs Law. χ Mr. Ladas contended that this law has no retrospective effect and that it is clear that a right to file an action, to file a writ 30 of summons, relates to the future and before the enactment of this Law, no spouse could file a writ of summons against the other spouse for a tort. But assuming, counsel further added, that the argument is correct and this Law has a retro­ spective effect, that would mean that a spouse can today bring 35 an action against the other spouse for a tort which occurred in 1961. If that was the intention of the legislature it would have been clearly stated in the law. In addition, having dealt with the previous argument of Mr. Dikigoropoulos to the effect 270 1 C.L.R. Varnavides τ. loannou Ά Another Hadjlanastassiou J. that the presumption against retrospective operation does not apply to a statute which is merely procedural, counsel for the respondents further submitted that this statute is not merely procedural because a procedural statute would be one that 5 merely regulates procedure and imposes time limits or certain conditions which have to be fulfilled in the actualfilingof the documents. Finally, counsel in advancing an argument against theretrospectivity ofthe statutes,said thatit would affect already existing 10 rights and it was a well known principlethateven aprocedural statute would not be presumed to have retrospective operation if it affects vested or already existing rights. Counsel reverted to what he said in the beginning that if this law is treated to have retrospective effect it would enable a spouse to go back 15 a very long time and raise matters with the other spouse which the other spouse would never expect to be raised and that,in his further submission, would amount to an interference with already existing rights. Then turning to Barberv. Pigden(supra), counsel invited 20 che Court to take the view that this case is not really of very much help because it was dealing with a different provision al­ together and a differently worded provision and the result was that section had a limited retrospective effect. Scott, L.J. in delivering thesecondjudgment in this casedealt 25 with the argument of counsel on the construction of the Law Reform (Married Women and Tortfeasors) Act 1935 which was eracted a fortnight before the issue of the writ in that action, and had this to say at pp. 677, 678:30 35 "I do not, howevei, think this aigument is sound. The language of Pait I discloses an intention to make a clean sweep of the old legal fiction of our common law that a woman on mairying became merged in the personality of herhusband, andceased to be a fully qualified andsepa­ rate human person. The draftsmanship of the Act does indeed seem to the lawyer a little open to criticism—and possibly even to morecriticism than my commonlaw mind is likely to discern on a first consideration—particularly in regard to the difficult task of connecting the Act up with the retained parts of the 1882 Act; at any rate, Sir 271 Hadjlanastassiou J. Varnavides v. loannou & Another

(1982)Arthur Underbill's delicious little book on the Act just published raises a good manypoints whichcall for reflection. But as far as the present case is concerned, the dominant intention of the Act is clear beyond all doubt: it is to effect a drastic reform of our law in a branch where there 5 has been too much legal fiction and too much technicality of legal procedure; and I do not think the rule against retrospective interpretation, on which Mr. Slade relies, is properly applicable to such a statute abolishing legal fictions, any more than to a merely procedural statute. 10 The purpose of Part I ofthe Act isto give back to a woman, though married, the full human status allowed by the common law to a man, a maiden or a widow, of which the common law had robbed her; in short, it icstores to her natural status and capacity. It does it by sweeping away 15 a host of legal fictions—fictions which in origin were inextricably mixed up with old procedural law. It is well recognized that the cannon against retrospective interpretation does not apply to a statute dealing with adjective law, i.e. procedure, and 1 think that a statute 20 abolishing old legal fictions is sonearly akin to a procedural statute that the canon can have little, if any, application. After all, the canon expiesses no rigid or absolute rule. It rests on a presumption of common-sense in a wellordered and civilized society; and that presumption does 25 not seem germane to the root-and-branch view Parliament was obviously taking when it passed this Act, of the historical interferences by lawyers with the natural rights of a woman. Anyhow, the inhibition of the rule is a matter of degree, and must vaiy secundum materiam. A little 30 consideration of this statute in my view sufficei to exclude the presumption altogether". Mr. Dikigoiopoulos in reply argued that this is not an action by the wife against the husband, it is an action by a third party against the husband whose right was barred because he was 35 claiming contribution in respect of the iort of one of the spouses and that he is under a legal fiction prevented from recovering contribution because he is deeming to be the spouse of the party against whom he claimed contribution. The third paily, counsel added, has nothing to do with this. He is not married 40 he is not a husband but he is prevented from claiming contri272 1 C.L.R. Varnavides v. loannou & Another Hadjianastassiou J bution under the doctrine that the wife of the other spouse could not, before the abolition of the right under Law 54/78, file an action against him although the right of the appellant tofilean action was there. He further added that he is stopped 5 from recovering damages because according to what the trial Judge said the wife could not file an action and therefor? he could not file an action also. With respect to the argument of Mr. A. Ladas also, we take a different view of Barber v. Pigden (supra) and we think it 10 is on all fours with the present case once it was decided that" the Law Reform (Married Women and Tortfeasois) Act 1935 abolished the rule whereby a husband was liable for the tort of his wife and had retrospective operation, because it did no more than remove a legal fiction and that it did not interfere 15 with a vested right. Indeed where vested rights are affected there is a presumption that the enactment is prospective as opposed to enactments dealing with procedural matters which could be given retrospective effect. It is true that it is not always easy to distinguish between 20 procedural and substantive enactments, using the term "sub* stantive" to encompass laws that confer rights which cannot be taken away once they have accrued except by express operation of the law. \ In Kammins Ballrooms Co. Ltd. v. Zenith Investments (Tor25 quay) Ltd., [1970] 2 All E.R. E.R. 871, (H.L.) it was held that section 29

(3)of ttw Landlord and Tenant Act 1954 laid down that no application for renewal of a tenancy shall be entertained unless it is made not less than two nor more than four months after the giving of the landlord's notice under section 25 was 30 considered as a procedural enactment and a tenant failing to observe its provisions did not inexorably forfeit his right for renewal. See also the case of Wilson v. Dagnall, [1972] 2 All E.R. 44 (C.A.), an example of an enactment altering substantive rights and its prospective focus can be furnished by that case. 35 Indeed, it was there decided that section 4

(1)of the Law Relorm (Miscellaneous Provisions) Act 1971,laying down that the prospects ofremarriage of awidow should bedisregarded in assessing damages under the fatal accidents' Acts had prospective operation and nothing altered rightsthat accrued before its enactment. 273 Hadjianastassiou J. Varnavides v. loannou & Another

(1982)Therefore, the Court could not ignore in assessing damages at a date prior to the operative date of the Act, the rights of the parties as defined by law prior to this enactment. In Attorney-General v. Vernazza, [1960] A.C. 965, Lord Denning delivering a separate judgment had this to say at 5 p. 978:"It is, of course, clear that in the ordinary way the Court of Appeal cannot take into account a statute which has been passed in the interval since the case was decided at first instance, because the rights of litigants are generally 10 to be determined according to the law in force at that date of the earlier proceedings, see In re A Debtor (No. 490 of 1935), [1936] Ch. 237, New Brunswick Railway Co. British and French Trust Corporation Ltd. [1939] A.C.

1. But it is different when the statute is retrospective either 15 because it contains clear words to that effect, or because it deals with matters of procedure only, for then Parliament has shown an intention that the Act should operate on pending proceedings, and the Court of Appeal are entitled to give effect to this retrospective intent as well as a court 20 of fust instance, see Quilter v. Map/eson, 9 Q.B.D. 672 and Stovin v. Fairbrass [1919] 88 L.J. K.B.
2. Those decisions seem to me to show that the Court of Appeal can give effect to a retrospective Act passed in the interval iince the case was at first instance, no matter whether it 25 deals with vested rights or with procedure only, for, as Harman L.J. pointed out, the retiospective Act in Quilter v. Mapleson 9 Q.B.D. 672 affected the vested right of the landlord to recover possession. And the retrospective Act in Stovin v. Fairbrass 88 L.J.K.B. 1004 affected the 30 vested right of the statutory tenant to remain in possession. Applying this principle,the Act of 1959was,as I have said, retrospective". For the reasons we have given, and in the light of the authorities quoted, we think it was a good thing that the old section 35 10

(1)of the Civil Wrongs Law, Cap. 148was removed from our Statute Book. This was meant to pave the way for the better administration of justice by removing artificial barriers that blocked the way to direct or indirect proceedings between 274 1 C.L.R. Varnavides v. loannou & Another Hadjianastassiou J. spouses. No one had acquired a vested interest in the subsistence of this anomaly. All that was acquired was a temporary advantage that could be enjoyed so long as the anomaly was preserved. Now it has happily been done away with, 5 and therefore, the way has been opened for citizens to ventilate their rights without hindrance. This is what the defendant has done by seeking contribution from the wife, allegedly a joint tort-feasor and the husband has no legitimate right to complain for no right of his was taken away. It was always 10 his duty at common law to show care to all his neighbours and that included his wife. For allthesereasons, the application ofthedefendant succeeds once we have reached the conclusion that the new section 10

(1)of the Civil Wrongs Law was of a procedural nature and has 15 retrospective effect. Application granted. 275