Performance Cars Ltd v Abraham [1961] EWCA Civ 3

Performance Cars’ Rolls-Royce was damaged in two minor collisions before repairs were done. The first already required an expensive respray. The Court of Appeal held the second driver was not liable for that cost because his negligence caused no additional need to respray.

Facts

On 25 February 1960 the defendant, driving his own motor car, negligently collided with a Rolls-Royce Silver Cloud owned by the plaintiffs and driven by one of their directors. His car struck the offside front wing and bumper. He accepted full responsibility for this accident.

The damage directly attributable to the second collision required the dent in the wing to be hammered out and the bumper straightened and re‑chromed. Due to the nature of the paintwork on the Rolls-Royce, it was accepted that, where such damage occurred, the whole of the lower part of the body (including the wings) had to be resprayed to avoid an obvious colour mismatch. The cost of such respraying was £75 and, taken alone, was a proper and reasonable item of damage.

However, about a fortnight earlier the same Rolls-Royce had been involved in another slight collision, entirely the fault of another motorist. On that earlier occasion, the rear of the lower part of the car was damaged. That first collision already made it necessary to respray the whole of the lower part of the car, and £75 for respraying had properly been included in the plaintiffs’ claim against the first motorist.

The plaintiffs had obtained default judgment against the first motorist for a sum slightly larger than the claim against the present defendant, including the same £75 respraying cost, but they had recovered nothing on that judgment and it appeared extremely unlikely that they would do so. When the second collision occurred, no repairs (including respraying) had yet been carried out.

In the present proceedings the only disputed item of damage was the £75 described in the particulars of claim as:

Cost of repainting lower part of Rolls Royce, £75.

The plaintiffs conceded that they could not recover the respraying cost twice and offered to assign to the present defendant the benefit of the earlier judgment so far as it related to that item.

Issues

The central issue was whether the defendant, as the second tortfeasor, was liable for the cost of respraying the whole of the lower part of the Rolls-Royce when, at the time of his collision, that respraying was already required by damage caused in the first collision.

The question was framed by Donovan LJ as determining what additional burden, in terms of respraying, the second collision imposed on the plaintiffs when the earlier collision had already necessitated a full respray.

A subsidiary issue was whether the plaintiffs’ existing rights and judgment against the first motorist were merely collateral matters, falling within the principle expressed in Mayne on Damages and applied in Shearman v Folland, or whether the pre‑existing physical condition of the car at the time of the second accident was properly to be taken into account in measuring the loss caused by the second tortfeasor.

Judgment

Master of the Rolls (Lord Evershed)

The Master of the Rolls described the case as raising an interesting and novel point. He recorded the defendant’s argument that, at the date of the second collision, the Rolls‑Royce already needed to be resprayed, so that the need to respray did not arise from the defendant’s wrongful act. Conversely, the plaintiffs argued that there were two separate tortfeasors, each liable for the natural and proper consequences of his own tort.

He examined the principle from Shearman v Folland, where Asquith LJ had cited Mayne on Damages. The passage relied upon was:

matter completely collateral, and merely res inter alios acta cannot be used in mitigation of damages.

He noted Asquith LJ’s warning that this maxim is easier to formulate than to apply, and identified the key question as what should properly be treated as “completely collateral” and “merely res inter alios acta”.

In the present case, he considered that the defendant had struck a car already damaged in a way which meant that respraying was in any event necessary. Thus, the need for respraying did not arise from the defendant’s wrongful act. He illustrated the point with the example of a windscreen already so damaged as to require replacement before a second collision further splintered it; in that situation, the second wrongdoer could not be made to pay the whole cost of a new windscreen when that cost had already been incurred in principle by the first damage.

He concluded that the necessity for respraying was not the result of the defendant’s wrongdoing because that necessity pre‑existed the second collision. The Rolls‑Royce, when struck by the defendant, was already in a condition requiring respraying in any event, so the cost of that respraying did not flow from the defendant’s tort.

He drew support from two Admiralty cases: The Haversham Grange and Carslogie Steamship Co Ltd v Royal Norwegian Government. In Carslogie, Viscount Jowitt had said:

My Lords, I think that there can be no logical distinction between the claim for damages for delay and for dock dues and, believing as I do, that the decision as to damages for delay was correct, it follows in my view that the latter decision in respect of dock dues cannot be supported.

The Master of the Rolls treated these authorities as supporting the principle that a tortfeasor is not liable for losses which would have occurred in any event irrespective of his wrong.

He accepted that it might be unfortunate for the plaintiffs that the collisions had occurred in the order they did and that the earlier judgment was worthless in practical terms, but he regarded that as irrelevant. On the proper analysis, the defendant had injured a car already injured to the extent of needing respraying, and the £75 for respraying was therefore not damage flowing from his tort.

He would therefore allow the appeal.

Harman LJ

Harman LJ agreed that the only issue was the quantum of damage and, in particular, the £75 claimed for repainting. He accepted that, taken by itself, that would have been a proper item of damage due to the special paintwork of the Rolls‑Royce, contrasting it with more modest vehicles whose owners might have to be content with a mere “bodge”.

He noted that it emerged at trial that a few days earlier the Rolls‑Royce had sustained rear damage which would itself have necessitated the same repainting, and that the plaintiffs already held an unsatisfied judgment against the other motorist including that cost. The defendant argued he should not face judgment for that sum a second time. The contention was based, not on the existence of the unsatisfied judgment, but on the fact that the car struck by the defendant was already in a damaged condition such that repainting would have been necessary in any case.

Harman LJ characterised this as a “curious point” but agreed it succeeded. He rejected the plaintiffs’ attempt to treat the existing damage as a collateral matter governed by the Shearman v Folland line of reasoning. He recorded that Asquith LJ had cited Mayne on Damages, 11th Edition, p.151:

Matter completely collateral, and merely res inter alios acta cannot be used in mitigation of damages.

In Shearman v Folland the way the plaintiff chose to live (in an expensive hotel) was indeed collateral. In the present case, however, the damage to the plaintiffs’ car “had actually happened” and the defendant had collided with a car already damaged and reduced in value to that extent. Counsel for the plaintiffs accepted that his argument would be the same even if the plaintiffs themselves had damaged the car by running it into a wall that morning, a concession which Harman LJ considered exposed the fallacy in the plaintiffs’ position.

He therefore agreed that the appeal should be allowed.

Donovan LJ

Donovan LJ agreed. He posed the question as being what extra burden, in the matter of respraying, the second collision imposed on the plaintiff company. He answered that it imposed none, since the earlier collision had already placed upon them the burden of respraying.

He accordingly agreed that the appeal should be allowed.

Order

The formal order recorded was:

(Appeal allowed with costs in lieu of judgment for £110.15s., judgment for £35.10s. substituted; costs on Sale 3 awarded to Plaintiffs in lieu of costs on Scale 4)

Implications

This decision establishes that a tortfeasor is not liable for damage which did not in fact result from his wrongdoing, even where the claimant has suffered a real financial loss through the insolvency or default of another wrongdoer. Where property is already damaged so that a particular expense (such as respraying or replacement) is inevitably required, a subsequent negligent act causing further but lesser damage does not make the second tortfeasor liable for that pre‑existing expenditure.

The case distinguishes genuinely collateral matters (such as insurance or the plaintiff’s general mode of life) from the pre‑existing physical condition of the property at the time of the tort. It reinforces the principles of causation and the prohibition against double recovery, and aligns with the approach in Admiralty cases that a defendant is liable only for loss caused by his own tort, not for loss that would have been suffered in any event.

Verdict: Appeal allowed; the defendant was held not liable for the £75 cost of respraying the car, and in place of the original judgment for £110.15s., a reduced judgment for £35.10s. was substituted, with appropriate costs orders as stated.

Source: Performance Cars Ltd v Abraham [1961] EWCA Civ 3