(1983)1983 February 22 [TRIANTAFYLLIDES, P., A. LOIZOU, MALACHTOS, JJ.] MOU7.AFER MOUHAREM AND ANOTHER Appellants. v. GEORGHIOS TH. PAVLIDES, Respondent. (CivilAppealNo. 5145). Civil Wrongs—Joint tortfeasors—Judgment against two defendants inanactionfor damages sustainedinaroadaccident—Apportionmentof blame equally asbetween defendants and notas between the plaintiff and defendants because the latter were joint tortfeasors—Judgment for plaintiff against the defendants jointly 5 andseverally properly givenin viewof the wording of thefirst paragraph of section 11 of the Civil Wrongs Law, Cap.148— Whether it would have made any real differenceif the two defendantswere to befound severally liable. The respondent-plaintiff, who wasinjured in a traffic accident 10 when the motor-cycle on which he was a pillion rider and was driven by defendant 1collided with a bus, driven by defendant 3andbelongingtodefendant 2,suedalldefendants for damages. The trial Court apportioned the blame between defendant 1 and defendant 3 at 50% against each one of them and made 15 such apportionment as "between defendant I and defendants 2 and 3 and not vis-a-vis the plaintiff as in the present case .the defendants are clearly joint tortfeasors" and as joint tortfeasors they werejointly liable to the plaintiff for any amount of compensation that the Court would award. This apportion- 20 ment was made because an application wasfiledby defendants 2 and 3under Order 10,rule 12
(1)of theCivil Procedure Rules. Upon appeal bydefendants 2and 3it wascontended that the trial Court erred in finding defendant 1 and defendant 3 to be joint tortfeasors and in, consequently, giving judgment for 25 the plaintiff and against both such defendants jointly and severally. 526 1 C.L.R. Mouharem and Another v. Pavlides The relevant legislative provision is section II of the Civil Wrongs Law, Cap. 148 which is quoted at pp. 528-529 post. 5 10 15 Held,that by the use in the first paragraph of section 11 of Cap. 148 of the word "respectively" the ambit of such provisionappears tohavebeen rendered sowideasto encompass both joint tortfeasors and several tertfeasors causing the same damage; that, thus, in effect, for the purposes of section II the distinction between joint tortfeasors and several tortfeasors causing the same damage seems to have been abolished; that in view, therefore, of the wording of thefirstparagraph of section !1 the trial Court could have held that defendants 1and 3— and consequently defendant 2aswell—werejointly and severally liable to pay the compensation awarded to the plaintiff. Held,further, it would have made no real difference even if the two drivers were to be found severally liable, since each one of them had to be found liable to compensate the plaintiff for the whole of the damage suffered by him, which was indivisible, as it was caused by the injuries suffered by him in the traffic collision in question. 20 Appeal dismissed. Cases referred to: Dingle v. Associated Newspapers Ltd. and Others [1961] 1All E.R. 897 at p. 916. Appeal. 25 Appeal by defendants 2 and 3 against the judgment of the District Court of Limassol (Stylianides, P.D.C. and Hadjitsangaris, D.J.) dated the 11th December, 1972(Action No. 255/70) whereby they were held to be jointly and severally liable with defendant 1and were ordered to pay to the plaintifT the sum of 30 C£4,290.850 mils as compensation for the injuries he suffered in a traffic accident. M. A, Hakki, for the appellants. P. Schizas with L. Tsikkinis, for the respondent. Cur. adv. vult. 35 TRIANTAFYLLIDES P. read thefollowingjudgment of the Court. This is an appeal against that part of the judgment of the Di- 527 Triantafyllides P. Mouharem and Another v. Pavlides
(1983)strict Court of Limassol bymeans of which the appellants, who weredefendants 2and 3intheactionbeforethetrialCourt,were heldtobejointly and severally liablewithdefendant 1 -whohas not filed an appeal - to pay to the respondent, as plaintiff, the sum of C£4,290.850 mils, as compensation for injuries he has suffered in a traffic accident. 5 At the material time the respondent was a pillion rider on a motor cycle which was being ridden by defendant 1 along Gladstone street in Limassol and whichcameintocollision with a bus which was being driven by defendant 3 and belonged to 10 defendant
- The relevant part of thejudgment of thetrialCourt reads as follows: "In the present case, and using such common sense approach, we apportion the blame between Defendant 1and 15 Defendant 3at 50% against Defendant 1 and 50% against Defendant
- This apportionment is made as between Defendant 1and Defendants 2 and 3 and not vis a vis the Plaintiff as in the present case the Defendants are clearly joint tort feasors. Asjoint tort feasors they arejointly and 20 severally liable to the plaintiff for any amount of compensation that we should award. The aforesaid apportionment is made as an application was made by Defendants 2 and 3under Order 10,Rule 12
(1)of the Civil Procedure Rules." The present appeal has been limited bycounsel for theappellants to only one of the grounds of appeal,namely that the trial Court erred in finding defendant 1and defendant 3to bejoint tortfeasors andin,consequently,givingjudgmentfor theplaintiff and against both such defendants jointly and severally. De- 30 fendant 2 was held to be, also,jointly and severally liable with defendant 1 by way of vicarious liability for the negligence of defendant 3. The relevant legislative provision in the Civil Wrongs Law, Cap. 148, is section 11, which reads as follows: 35 "11. When two or more persons are respectively liable under the provisions of this Law for any act and such act constitutes a civilwrong such persons shall bejointly liable 528 25 I C.L.R. Mouharem and Another v. Pavlides Triantafyllides P. as civil wrongdoes for such act and may be sued therefor jointly or severally: Provided that (
- a)if a judgment is obtained against, or 5 (
- b)if a release is given to, one or more of such persons in respect of such civil wrong no action shall lie against the other person or persons in respect thereof: 10 Provided that where damage issuffered by anyperson as a result of a civil wrong (whether a crime or not) - 15 (
- a)judgment recovered against any civil wrong doer liable inrespectofthatdamageshallnot beabartoanaction against any other person who would, if sued, have been liable asajoint civilwrongdoer inrespect of the same damage; 20 25 (
- b)if more than one action is brought in respect of that damagebyor on behalf of theperson bywhom it was suffered, or for the benefit of the estate, or of the wife, husband, parent or child, of that person, against civil wrong doers liable in respect of the damage (whether as joint civil wrong doers or otherwise) the sums recoverable under the judgments given in those actions bywayofdamagesshallnot intheaggregateexceedthe amount of the damages awarded by thejudgment first given; and in any of those actions, other than that in whichjudgment isfirst given, the plaintiff shall not be entitled to costs unless the Court isof opinion that there was reasonable ground for bringing the action." A similar relevant enactment in England is section 6 in the 30 Law Reform (Married Women and Tortfeasors) Act, 1935, in which provisions such as those set out in section 11,above, as wellasinsection64ofCap. 148,aretobefound, exceptthatthe first paragraphofsection 11 ismissingfrom theaforesaid section 6 in England. 35 By the use in the first paragraph of section 11 of Cap. 148 of the word "respectively" the ambit of such provision appears to have been rendered so wideas to encompass bothjoint tort529 Triantafyllides P. Mouharem and Another v. Pavlides
(1983)feasors and several tortfeasors causing the same damage; thus, in effect, for the purposes of section 11 the distinction between joint tortfeasors and several tortfeasors causing the same damage seems to have been abolished. In view, therefore, of the wording of the first paragraph of 5 section 11, above, we are clearly of the opinion that the trial Court could have held that defendants 1 and 3-and consequently defendant 2 as well - werejointly and severally liable to pay the compensation awarded to the plaintiff. In any event, even if we were to accept the submission of 10 counsel for the appellants that the two drivers concerned ought to have been found only severally liable, we are of the opinion that, as in the present case the damage caused is indivisible, judgment could be given against each one of them for the whole amount of the compensation payable to the plaintiff. 15 Reference may be made, in this respect, to Halsbury's Laws of England, 3rd ed., vol. 37, p. 136, para. 245, where there are stated the following:^ "Concurrent and consecutivetortfeasors. If each of several persons, not acting in concert, commits a tort against ano- 20 ther person substantially contemporaneously and causing the same or indivisible damage, each tortfeasor is liable for the whole damage. If each of several persons commits an independent tort consecutively against the same person, each is liable for the damage caused by his tortious act, 25 assuming the damage proximately caused by each tort to be distinct. Thus, if the second tortfeasor's act caused no further damage or merely duplicated damage caused by the first tort, the second tortfeasor will not be liable; but, if his act aggravated merely the damage caused by the first 30 tort, each tortfeasor will be liable only in respect of that part of thedamage which his tort caused, assuming that it is possible to separate and quantify the aggravation of damage." Also, in Dingle v. Associated Newspapers, Ltd. and others, 35 [1961] 1 All E.R. 897, Devlin L.J. said (at p. 916): "Where injury has been done to the plaintiff and the injury isindivisible, any tortfeasor whose act hasbeen a proximate 530 I C.L.R. 5 10 15 20 25 Mouharem and Another v. Pa*Iides Triantafyllides P. cause of the injury must compensate for the whole of it. As between the plaintiff and the defendant it is immaterial that there are others'whoseacts alsohave been a cause ofthe injury and it does not matter whether those others have or have not a good defence. These factors would be relevant in a claim between tortfeasors for contribution but the plaintiff is not concerned with that; he can obtain judgment for total compensation from anyone whose act has been a cause of his injury. .If there are more than one of such persons, it is immaterial to the plaintiff whether they are joint tortfeasons or not. If four men, acting severally and not in concert, strike the plaintiff one after another and as a result of his injuries he suffers shock and isdetained in hospital and loses a month's wages, each wrongdoer is liable to compensate for the whole loss of earnings. If there werefour distinct physical injuries, each man would be liable only for the consequences peculiar to the injury he inflicted, but in the example I have given the loss of earnings is one injury caused in part by all four defendants. It is essential for this purpose that the loss should be one and indivisible; whether it is so or not is a matter of fact and not a matter of law. If, for example, a ship isdamaged in two separate collisions by two wrongdoers and consequently is in dry dock for a month for repairs and claims for loss of earnings, it is usually possible to say how many days' detention is attributable to the damage done by each collision and divide the loss of earnings accordingly." Thus, in the present instance, it would have made no real difference even if the two drivers were to be found severally 30 liable, since each one of them had to be found liable to compensate theplaintiff for the whole of thedamage suffered byhim, which was indivisible, as it was caused by the injuries suffered by him in the traffic collision in question. In the light, therefore, of all the foregoing the present appeal 35 fails and has to be dismissed with costs. Appeal dismissedwith costs. 531