Cyprus court rejects separate judgments for joint tortfeasors, ordering one judgment with liability apportionment under Civil Wrongs Law.

[*854] 1971 November 30

(STAVRINAKIS, AG. P.D.C., EVANGELIDES, AG, D.J. )

IN THE DISTRICT COURT OP NICOSIA

Charalambos Panayides, as administrator

of the estate of the deceased Diana

Themistocleous Panayiotidou,

Plaintiff,

v.

Andreas Stavrou & others,

Defendants.

(Action No. 3649/70).

Negligence - Road Traffic accident - Duties of a driver travelling on a main road approaching an intersection - Failure of another driver travelling on a side road, to halt before entering a major road - Collision.

Civil Wrongs - Joint tortfeasors - Whether a separate judgment can be issued against each one of the tortfeasors causing the same damage - Section 64 of our Civil Wrongs Law, Cap. 148 compared, with section 6 of the Law Reform (Married Women and Tortfeasors) Act, 1934 - Differences between the English and the Cyprus Law.

Master and servant - Vicarious liability - Ownership and consent prima facie evidence that the driver was the servant or agent of the owner - Presumption not displaced in view of complete absence of any explanation.

J. Mavronicolas, for the Plaintiff.

N. Pelides, for the Defendants 1. & 2.

D. Papachrysostomou, for the Defendants 3 & 4.

JUDGMENT

The judgment of the Court was delivered by:-

STAVRINAKIS. Ag. P.D.C.: The present action was instituted by the administrator of the estate of the [*855] deceased Diana Themistocleous Panayiotidou who was killed in a road traffic accident, claiming compensation for loss of expectation of life and for the deceased's dependents under section 58 of the Civil Wrongs Law, Cap. 148.

Before the commencement of the hearing it has been agreed that the estate of the deceased is entitled to £580.- covering both special and general damages and including an amount for dependency with the necessary deductions being taken into consideration.

The plaintiff was a passenger and, therefore, no question of contributory negligence on her part arises. What is hotly in dispute is the issue of liability between the drivers of the two cars.

Defendant No, 1 was the material time driving motor-car Reg. No. TDD 890 as an employee of and on behalf of Defendant 2, the latter being the owner of the vehicle.

Defendant No. 4. was at the material time the owner of motor-car Keg. No. ER 330 driven by Defendant No. 3. Service of the writ of summons was not effected on Defendant 3 and the writ of summons having thus expired, the action against him was struck out. According to the averments in paragraph 3 of the amended statement of claim Defendant 3 was driving motor-car Reg. No. ER 330, the property of Defendant as the latter' s agent and/or servant and/or representative and/or with his consent and, therefore, Defendant 4 is vicariously liable. Defendant No.4, on the [*856] other hand, in his statement of defence, as amended by an order of the Court, admits only that he was the owner of car Reg. No. ER 330 and Defendant 3 was driving the said car with his consent and for his own purposes (defendant’s 3).

The accident occurred at the intersection of the main Nicosia-Famagus ta road and Lefkoniko-Prastio road, under the following circumstances:-

Motor-car TDD 890, a taxi carrying five passengers, was travelling from Famagusta to Nicosia along the main road. The other car Reg. No. ER 330 was travelling along Lefkoniko-Prastio road. It failed to stop at the junction before entering the main Nicosia-Famagusta road, as a result of which the taxi collided with it. Defendant 1 denies that he had in any way contributed to the accident, whereas Plaintiff and Defendant 4 contend that he is partly to blame, in that, he was approaching a crossing at high speed and without a proper look-out.

P.W.1 is the Police investigating officer of this accident. Soon after the accident he visited the scene, took measurements and made a sketch which he produced as Exhibit 1. The said sketch shows, among other things, the resultant position of the vehicles, their respective skidmarks and the point of impact. According to his evidence, a person travelling on the main Famagusta-Nicosia road and. proceeding towards Nicosia, can see the movements of traffic on the Lefkoniko side-road. [*857]

The driver of the taxi saw the other car on the side-road and applied his brakes to avoid the collision, but could not bring his car to a halt in time and a collisio ensued. Judging from the pictures taken of both vehicles after the accident and the evidence in general, the collision was a violent one.

It emerges clearly from the evidence that both the driver of the taxi and his passenger, P.W. 2, realised at sometime that the driver of the other car intended to enter the main road without stopping at the halt sign, as he was bound to do. At the junction of Lefkoniko and the main Nicosia-Famagusta road there is a halt line running transversely the width of Lefkoniko road and a triangle, both painted on the road and before that there is an international halt sign, as shown on Exhibit 2(a).

It comes out of the evidence that the passenger, P.W.2, saw the other car before the taxi driver and when the taxi was at a greater distance from the intersection. Defendant 1, the taxi driver, alleged that he was travelling at 60 miles per hour and when he saw the other car for the first time he was about 40 meters from the intersection.

He decelerated and applied, lightly his brakes and then when he realized that the other car intended to enter the intersection without stopping, he applied, his brakes hard.

Judging from the skid-marks made by his car on the road and the other circumstances of the case in conjunction with the evidence of P.W,2, we are not satisfied that the taxi driver had time to decelerate and apply his [*858] brakes lightly. It is more probable to infer that as soon as he first saw the other car, he applied his brakes hard, as a result of which the wheels of his car locked. Everything must have happened so quickly and suddenly that there was no time for the deceleration and the light application of brakes, as he alleged. This is also borne out by the evidence of P.W.2.

There is no doubt in our minds that when the taxi driver noticed the other car, he immediately realised the danger. It is an established fact that that particular stretch of the Nicosia-Famagusta road is not controlled by a speed limit, but there is a road traffic sign before approaching the intersection, giving warning of a cross-road lying ahead. According to the evidence, the closer a car travelling on the side-road is at the intersection, the greater the distance from which it can be seen by one coming from Famagusta. The speed of the taxi was high.

We shall not endeavour to make a finding as to the speed in figures. P.W. 2 said simply that it was high and judging from the skid-marks made on the road and the Violence of the impact, there can be no doubt that P.W. 2 was right. The taxi driver admitted that he was doing only 60 miles per hour. We have no evidence showing that he was doing more and to say that on account of the skidmarks made on the road and the violence of the impact, his speed was higher, it would only amount to a conjecture. However that may be, the speed was such that the driver could not stop in time on seeing the other car entering the main road without stopping at the junction.

We cannot say that a driver just because he is driving on a highway [*859] uncontrolled by any speed limit, is entitled to do so without proper look-out and with complete disregard of the foreseeable reckless or inconsiderate driving of other road users. The faster one goes, the greater his duty towards other road users. A prudent driver should not travel at such speed as would endanger other road users or himself, unless and until he feels that it is safe for him to do so. The speed must be a safe one and a safe speed varies and should be adjusted according to the circumstances.

A road sign giving warning of a crossing ahead is intended to be acted upon by the drivers travelling on the main road. The object of this warning is to put the driver on the highway on his guard and lookout for traffic on the side-road entering into the main road. One cannot say and indeed experience taught us that many a drivers do not comply with traffic signs, irrespective of whether they are advisory or mandatory. A reasonable prudent driver cannot exclude the possibility of other drivers disobeying traffic laws regulating and directing such traffic lights or halt signs.

In a number of cases it was held that a prudent driver should have a look-out to all directions and should not shield himself behind his right of way.

Ormerold L.J. in the case of Williams v. Fullertone (1961) 3 C.L. 498, regarding the duties of a driver on a major road, said the following:-

"If a driver exercises proper care he approaches a crossing with his foot off the accelerator and ready on the brake to deal with any traffic from the minor road, by slowing down or stopping, A [*860] driver on a major road is not entitled to take his precedence for granted. Drivers on the minor road may he reckless or careless and therefore it is the duty of the driver to keep a proper look-out as lie comes to the junction and not go straight ahead".

In the case of Varnakides v. PapaMichael & another (1971) 2 J.S.C. 147 a driver on a main road was held 10% responsible for an accident with another car failing to stop at a halt sign.

Vassiliades, P. in the said case, said the following:-

"After discussing the matter between us, we take the view that the plaintiff approaching as he did, the crossing at a prudently slow speed, was held to have contributed to this collision merely because, at most, he did not pay sufficient attention in order to assess and appreciate correctly the recklessness of the other driver. The cases in point, impose on every user of the road a duty of care to himself to take avoiding action for his own safety. Here the most one can say against the plaintiff is that he did not take sufficient care in following all along, the way in which the Jaguar was being driven, so as to appreciate correctly the recklessness of its driver; and also, perhaps, that he did not take into [*861] account the possibility that, coming at that speed, the driver of the Jaguar might disregard the white line on the road which was put there to make him slow down and stop, if necessary, in order to give priority to the traffic crossing his path".

The Supreme Court reduced the contribution of 25% attributed by the. trial Court to the plaintiff who was travelling on the main road, to 10%.

Hjianastassiou, J. in the same case had this to say: -

"Going through the record, I am satisfied that it was reasonably open to the trial. Court to reach the conclusion that the appellant was contributory to the accident because he has failed to have a proper look-out and has failed to apply his brakes in order to avoid the accident. I would, therefore, affirm the judgment of the Court, because although contributory negligence does not depend on a duty of care, it does depend on foreseeability of harm to oneself. In my view, the appellant ought reasonably to have foreseen that because of the reckless driving of the respondent, that if he did not take any avoiding action he might be hurt himself".

We have noted with care the facts of the aforesaid case and compared them with the facts of the present case. [*862] We disagree with the submission made by learned counsel of Defendant 1 that the facts of Varnakides's case were more serious compared to the facts of the present case and we find that the taxi driver had a duty to reduce his speed within safe limits and when we say safe limits, we mean such a speed as to enable him to pull up in time in case somebody tried to enter the main road from the intersection as it actually happened.

According to the evidence, the car Reg. No. ER 330 was seen travelling on the said road at high speed, and this was noticed both by the driver of the taxi and P.W.2. If the taxi driver approached the intersection with caution, anticipation and at such speed in readiness for any eventuality giving due consideration to the road sign, he should have seen the other car in time and appreciate the intention of its driver and by taking the necessary avoiding action the accident might have been probably avoided.

There is no doubt that the other car failed to stop at the halt sign in contravention and with complete disregard to all directions given by the Traffic Authorities and we find that he is more to blame than the taxi driver. A third-party notice under Order 10, rule 1 2 of the Civil Procedure Rules has been served by Defendants 1 & 2 to Defendant

4 claiming contribution and apportionment of liability. In the exercise of our power under such circumstances, we find that the taxi driver is 25% and the [*863] driver of motor-car ER 330 75% to blame. We apportion the liability between Defendants 1 & 2 on the one hand and Defendant 3 on the other, accordingly.

Learned counsel for Defendant 4 argued that as the only fact admitted in his statement of defence regarding vicarious liability is the ownership of the car and that Defendant 3 was driving the said car with his consent, he is not, in the absence of any other evidence, vicariously liable for the negligent driving of Defendant 3.

According to the recent Privy Council

decision of Rambarran v. Gurracharran (1970) 1 All E.R. 749 -

" .. the ownership of a car raises a presumption that the person driving, it is doing so as the agent or on behalf of the owner".

This is nothing new and it is a reiteration of the principle enunciated in the case of Barnard v. Sully (i 931) 47 T.L.R. 557 where it was held that -

"If a peeson in an action for negligence proves that damage has been caused by defendant’s motorcar, the fact of ownership of the motor-car is prima facie evidence that the motor-car at the material time was being driven by the owner or by his servant or agent".

Lord Donovan in his advice said (Rambarran ' s Case, p. 753):-

"The appellant, it is true, could not, except at his peril, leave the Court without any other [*863] knowledge than that the car belonged to him. But he could repel an inference based on this fact that the driver was his servant or agent in either of two ways. One, by giving or calling evidence as to Leslie's (driver's) object in making the journey in question and establishing that it served no purpose of the appellant. Two, by simply asserting that the car was not being driven for any purpose of the appellant and proving that assertion by means of such supporting evidence as was available to him. If this supporting evidence was sufficiently cogentand credible to be accepted, it is not to be overthrown simply because the appellant chose this way of defeating the respondent's case instead of the other".

Learned counsel of Defendant 1 contended that by serving a third-party notice on the other Defendant, he is entitled in case the Court finds that he has in no way contributed to the accident, to apportion liability between the defendants and issue separate judgments against them. He cited in support, section 64 of the Civil Wrongs Law, Cap. 148.

Section 64 is of general application respecting joint wrong doers and sub-section (2) is clearly understood to refer to such joint wrong doers as master and servant. The use of the word "indemnity" encountered in subsection (2) of section 6k, is somewhat buffling if one has [*865]

in mind the case of two negligent drivers causing damage to a third person, but not so in the case of a servant towards his master.

Before any attempt is made to interpret section 6k of the Civil Wrongs Law, we consider it necessary to compare our section with the Law in force in England. A similar provision is to be found in the Law Reform (Married Women and Tort-feasors) Act, 1935, section

6 which is an amalgam of section 11 and section 64 of our Civil Wrongs Law, Cap. 148. Eor purposes of comparison, we set hereinbelow the English enactment and opposite the relevant sections of the Cyprus Law; -

Law Reform (Married Women and Tortfeasors) Act, 1935.

Civil Wrongs Law, Cap. 148.

S. 11. When two or more persons are respectively liable under the provisions of this Law for any act and such act constitutes a civil wrong such persons shall be jointly liable as joint civil wrong doers for such act and may be sued therefor jointly or severally:

Provided that - (a) if a judgment is obtained against, or [*866]

(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.

Section 6(1) Where damage is suffered by any person as a result, of a tort (whether a crime or not)

Provided that where damage is suffered by any person as a result of a civil wrong (whether a crime or not

(a) Judgment recovered against any tortfeasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tortfeasor in respect of the same damage;

(a) Judgment recovered against any civil wrong doer liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint civil wrong doer in respect of the same damage;

(b) if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered, or for the benefit of the estate, or of the wife, husband, parent or child of that person, against tortfeasors liable in respect of the damage (whether as joint tortfeasors or otherwise) the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given; the plaintiff shall not be entitled to costs unless the Court is of opinion that there was reasonable ground for bringing the action;

(b) if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered, or for the benefit of the estate, or of the wife husband parent or child, of that person, against civil [*867] 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 by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given, the plaintiff shall not be entitled to costs unless the Court is of opinion that there was reasonable ground for bringing the action.

(c) any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage , whether as a joint tortfeasor or otherwise so, however that no person shall he entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought.

64.(1) Where damage is suffered by any person as a result of a civil wrong, any joint wrong doers liable in respect of that damage may recover contribution from any other wrong doer who is, or would, if sued, have been, liable in respect of the same damage, [*868] whether as joint wrong doer or otherwise, so however, that no person shall be entitled to recover contribution under this section from any person entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought.

(2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the Court to be just and equitable having regard to the extent of that person's responsibility for the damage. and the Court shall have power to exempt any person from liability to make contribution, or to direct that thecontribution to be recovered from any person shall amount to a complete indemnity.

64(2) In any proceedings under this section the amount of the contribution recoverable from any person shall be such as may be found by the Court to be just and equitable having regard to the extension of such person’s responsibility for the damage; and the Court shall have power to exempt any person from liability to make contriution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity. [*869]

(3) For the purposes of this section -

(a.) the expression "dependents" means the persons for whose benefit actions may be brought under the Fatal Accidents Act, 1824.6 to 1959; and

(b) the reference in this section to "the judgment first given" shall, in a case where that judgment is reversed on appeal, be construed as a reference to the judgment first given which is not so reversed and, in a case where a judgment is varied on appeal, be construed as a reference to that judgment as so varied.

(4) Nothing in this section shall -

(a) apply with respect to any tort committed before the commencement of this Part of this Act; or

(b) affect any criminal proceedings against any person in respect of any wrongful act; or

(c) render enforceable any agreement for idemnity which would not have been enforceable if this section had not been passed.

At first sight one may say that both English and Cyprus enactments are the same, except for the first paragraph of section 11 which is missing from the English enactment. The first paragraph of section 11 of our Civil Wrongs Law, Cap. 148, gives a definition of the tortfeasors that may be joined in one action. In England, according to Clerk & Lindsell on Torts, 12th Edition, paragraph 180, tortfeasors may be -

(1) joint feasors; [*871]

(2) several tortfeasors causing the same damage; or

(3) several tortfeasors causing different damage.

Originally there was an important distinction between classes (1) and (2)9 hut later with the enactment of the Law Reform (Married Women and Tortfeasors) Act, 1935, there remained two minor consequences, namely -

(a) release of one tortfeasor releases all others, hut this does not happen with several tortfeasors.

(b) While joint tortfeasors may be sued in the same action, it is not clear whether tortfeasors can always be made defendants in the same action even though they are liable for the same damage.

A definition of a joint tortfeasor is given in many textbooks on the Law of Torts. In Clerk & Lindsell, 12th Edition, paragraph 182, one reads the following:-

"Who, then are joint tortfeasors? One way of answering the question is to see whether the cause of action against each tortfeasor is the same. If the same evidence would support an action against each, they are joint tortfeasors. They will be jointly liable for a tort which they both commit or for the commission of which they are both responsible, but not for a tort where each is responsible for a different injuria and the two injuriae happen to produce the same damnum. [*872]

Thus the agent who commits a tort on behalf of his principal and the principal are joint tortfeasors; so are the servant who commits a tort in the course of his employment and his master; so are in independent contractor who commits a tort and his employer, in those cases in which the employer is liable for his independent contractor; so are persons whose respective shares in the commission of a tort are done in furtherance of a common design. All persons in trespass who aid or counsel direct, or join, are joint trespassers. But mere similarity of design on the part of independent actors, causing independent damage, is not enough; there must be concerted action towards a common end. Still less will persons be joint tortfeasor when there is not even similarity of design, but independent wrongful acts accidentally resulting in one damage. As Collins, L.J. said in Thompson v. London County Council where the question was whether under the Practice Rules as then existing a water company and the council, whose separate acts of negligence, acting in combination, had caused a subsidence of the plaintiff’s property, could be joined as defendants: 'The damage is one, but the causes of action which have led to that damage are two, committed by two distinct personalities'". [*873]

"It is apprehended that torts of all kinds may be joint, and that in this respect libel and slander form no exception. If the writer of a libellous paragraph sends it to the publisher for its publication in the newspaper though possibly he may also be severally liable in respect of the publication to the publisher".

In Halsbury's Laws of England, 3rd Edition, 37th Vol. paragraph 248, reads:-

"Liability of joint tortfeasors. Each of two or more joint tortfeasors is liable for the entire damage resulting from the tort, subject to any contributory responsibility of the injured person. Persons are liable as joint tortfeasors where the act giving rise to the tort is a joint act done in pursuance of a common purpose. In particular joint liability arises where an agent, including a servant, commits a tort whilst acting within the scope of his authority. In such cases agsnts are jointly liable with their principals for the consequences of their torts. Similarly partners are jointly liable for torts committed by each other in the ordinary course of their firm’s business; and an officer of a company may be a joint tortfeasor with the company itself, the latter being vicariously responsible for his wrongful acts". [*874]

The first, paragraph of section 11 is a departure from the English definition of joint tortfeasors. Had it not been for the use of the word "respectively" encountered in the first line of the section, one may say that there is no difference at first sight, but what seems incompatible with the general idea of joint tortfeasors is the use of the word "respectively". According to Cassell English Dictionary, the word "respective" means

"relating severally to each of those in question", "several", "comparative", "relevant". The tenor, therefore, of the first paragraph of section 11 does

away with the distinction between joint tortfeasors and several tortfeasors causing the same damage. We may even go as far as to say that it is so widely cast, that it embraces cases of several tortfeasors causing different damage.

Having dealt with this preliminary issue, we turn now to the proper interpretation of section 64 of Cap. 148 which, as we had already the occasion to say, is similar to section 6(1)(c) and section 6(2) of the English Act.

In Halsbury’s Laws of England, 3rd Edition, 37th Volume, paragraph 244, reads

"… Where two or more defendants are sued as tortfeasors liable in respect of the same damage, the judge at the trial may, at the instance of any defendant found liable, apportion responsibility between defendants and make an order as to contribution accordingly; an application for this purpose may be made by such a defendant [*875] although no third party proceedings for contribution have been taken by him. A case may be so complicated, however, that formal proceedings for apportionment are necessary. In all other cases it is necessary for a defendant who wishes to claim a contribution to institute appropriate proceedings for that purpose. The Court must assess the contribution of each person found liable according to his share of blameworthiness; and, in doing so, the Court assesses the damage as between those who have been found liable for it, regardless of the possible liability for contributory negligence of a person not a party to the action who has not been found liable.

The costs between two or more tortfeasors liable for the same damage are in the judge's discretion but any offer before trial to contribute to a specified extent must be taken into account".

Having in mind the above and in particular the wider definition of tortfeasors that may be joined together in one action and the provisions of section 64 as explained by the aforecited passage from Halsbury's Laws of England, we are of the opinion that the Court gives one judgment in favour of plaintiff for the damage he sustained as a result of the torts joint or several of the defendants and then makes an assessment of the defendant's separate respective contribution. [*876]

Although we are not deciding the point and we should not be taken as doing so, we dare say that in view of the generality of the definition of tortfeasors according to the first paragraph of section 11 of Cap. 148, it seems, at first sight, that in a case where several tortfeasors cause the same damage or different damage, a separate judgment may be issued against such tortfeasors for their contribution, especially bearing in mind that in a case of several tortfeasors causing same damage, a release to one does not release the other, as in the case of joint tortfeasors. In Cyprus, after a judgment is obtained against or if a release is given to one or more of the persons enumerated in section 11, debars the plaintiff from bringing another action against the other tortfeasor not so released.

We find, therefore, that the Court cannot issue separate judgments in favour of plaintiff against each one of the two defendants.

Having in mind that the taxi driver is 25% to blame for the accident and the driver of the motor-car ER 330 is 75%, we apportion between the two defendants the liability accordingly.

We, therefore, give judgment in favour of the plaintiff for £580.- against all defendants, with costs and we assess the contribution between the defendants as follows:-

Defendant 1 and Defendant 2 jointly and severally £145.-.

Defendant 4, £435.-.

Judgment and order as to costs

as above.