Rigby J:

This is an appeal from a decision of Mr. Au Ah Wah, the then President of the Sessions Court, dismissing the plaintiff's claim against the defendant for damages for personal injuries sustained by the plaintiff at the hands of the defendant.

The facts are relatively simple. An angry exchange of words, culminating in a fight, took place between the plaintiff and the defendant in front of the plaintiff's premises at Gurney Drive on the afternoon of the 10 October 1959. At some stage in the fight one Mat Yusi bin Mawal, a nephew of the defendant, intervened on his behalf, and at some stage, whether in the course of the actual fight between the plaintiff and the, defendant, or after that fight had actually terminated, Mat Yusi himself assaulted the plaintiff. The plaintiff said in evidence that the defendant struck him with a piece of iron over the right eye. The plaintiff was admitted to hospital and, upon examination, he was found to have a big linear cut on the right eye-brow. His nose was swollen and he was bleeding from it. An X-ray examination disclosed a fracture of the nasal bone. The medical report also shows, incidentally, that he was found to be suffering from tuberculosis of the lungs. He remained in hospital for ten days. As a result he lost his employment and was unemployed for two months. On 24 day of November 1959, he took a private summons for criminal assault against the defendant and on 10 December the defendant admittedly pleaded guilty to that charge. Thereafter, he also took out a summons for assault against Mat Yusi, but that summons appears to have been compromised by the payment of $50 as agreed compensation to the plaintiff as per the receipt issued by the plaintiff's advocate.

The substantial defence put forward by the defendant in this case before the learned President and, indeed, accepted by him, was that this was a joint assault by the defendant and Mat Yusi, giving rise to a joint cause of action, at the instance of the plaintiff against both of them, and that the payment by either one of them of compensation, and the acceptance of that compensation by the plaintiff, constituted full accord and satisfaction of the cause of action and operated as a discharge against both of them. The law is very clearly set out in Clerk and Lindsell's textbook on the Law of Torts, 10th Edn., p. 263, in the following passage:

The general rule is, that where there is a joint cause of action against two or more persons, a discharge its against one of them operates as a discharge against all. If accord be made with one joint tortfeasor and satisfaction accepted, or if he be released, all others are discharged. 'It is we think, clear law that a release granted to one joint tortfeasor or to one joint debtor operates as a discharge to the other joint tortfeasor or the other joint debtor, the reason being that the cause of action, which is one and indivisible, having been released, all persons otherwise liable thereto are consequent released. (Duck v. Mayeu [1892] 2 QB 511 at p. 513, per A L Smith LJ)'.

In support of the argument that the defendant and Mat Yusi were joint tortfeasors Mr. David Choong, for the defendant, contended, with great cogency, that Mat Yusi had, in the first instance, assisted the defendant in the assault and that when the defendant was injured and he took him away he returned to continue the assault upon the plaintiff. He argued, in effect, that there was a common purpose to assault the plaintiff and that Mat Yusi, in later returning to the attack after he had removed his uncle from the scene of battle, was merely continuing that purpose and that he had never abandoned the original intention or common purpose to assault the plaintiff. Clerk & Lindsell, in dealing with the question of joint tortfeasors, point out, at p. 100, that "mere similarity of design on the part of the independent actors, causing independent damage, is not enough; there must be concerted action towards the c