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41 1961




Abolition of last opportunity rule.

56. —For the purposes of subsection (1) of section 34 and subsection (1) of section 46, the fact that any person—

(a) had an opportunity of avoiding the consequences of the act of any other person but negligently or carelessly failed to do so, or

(b) might have avoided those consequences by the exercise of care, or

(c) might have avoided those consequences but for previous negligence or want of care on his part,

shall not, by itself, be a ground for holding that the damage was not caused by the act of such other person.

Abolition of defences.

57. —(1) It shall not be a defence in an action of tort merely to show that the plaintiff is in breach of the civil or criminal law.

(2) It shall not be a defence in an action for breach of statutory duty merely to show that the defendant delegated the performance of the duty to the plaintiff.

Wrongs to unborn child.

58. —For the avoidance of doubt it is hereby declared that the law relating to wrongs shall apply to an unborn child for his protection in like manner as if the child were born, provided the child is subsequently born alive.

Liability of Minister for Finance for negligent use of mechanically propelled vehicle.

59. —(1) Where a wrong is committed by the use of a mechanically propelled vehicle belonging to the State, the Minister for Finance shall be liable to an action for damages in respect of damage resulting from the wrong in like manner as if the Minister for Finance were the owner of the vehicle, and the person using the vehicle shall, for the purposes of such liability, be deemed to be the servant of the Minister for Finance in so far as such person was acting in the course of his duty or employment.

(2) Proceedings may be brought against the Minister for Finance by virtue of this section without obtaining the fiat of the Attorney General.

(3) Nothing in this section shall operate to relieve any person from liability in respect of damage resulting from his own wrong.

(4) For the purposes of this section, a mechanically propelled vehicle not belonging to the State shall—

(a) while being used when it is under seizure by a person in the service of the State in the course of his duty or employment, or

(b) while being used by a member of the Garda Síochána or an officer of any Minister for the purpose of a test, removal or disposition of the vehicle pursuant to the Road Traffic Act, 1961, or any regulation thereunder,

be deemed to belong to the State.

(5) In this section—

mechanically propelled vehicle” means a vehicle intended or adapted for propulsion by mechanical means, including—

(a) a bicycle or tricycle, with an attachment for propelling it by mechanical power, whether or not the attachment is being used,

(b) a vehicle the means of propulsion of which is electrical or partly electrical and partly mechanical;

use” includes keeping or leaving stationary.

Liability of road authority for failure to maintain public road.

60. —(1) A road authority shall be liable for damage caused as a result of their failure to maintain adequately a public road.

(2) In proceedings under this section, it shall be a defence for the road authority to prove that—

(a) they had given sufficient warning that the road was a danger to traffic, or

(b) they had taken reasonable precautions to secure that the road was not a danger to traffic, or

(c) they had not a reasonable opportunity to give such warning or take such precautions, or

(d) the damage resulted from a wrong committed by any person other than the road authority.

(3) In determining whether a road was adequately maintained, regard shall be had in particular to—

(a) the construction of the road and the standard of maintenance appropriate to a road of such construction,

(b) the traffic using the road,

(c) the condition in which a reasonable person would have expected to find the road.

(4) In determining whether a road authority had a reasonable opportunity to give warning that a road was a danger to traffic or had taken reasonable precautions to secure that a road was not such a danger, regard shall be had to the standard of supervision reasonable for a road of such character.

(5) In this section—

road authority” means the council of a county, the corporation of a county or other borough and the council of an urban district;

public road” means a road the responsibility for the maintenance of which lies on a road authority and includes any bridge, pipe, arch, gulley, footway, pavement, fence, railing or wall which forms part of such road and which it is the responsibility of the road authority to maintain.

(6) This section shall not apply to damage arising from an event which occurred before the coming into operation of this section.

(7) This section shall come into operation on such day, not earlier than the 1st day of April, 1967, as may be fixed therefor by order made by the Government.

Proof of claims for damages or contribution in bankruptcy.

61. —(1) Notwithstanding any other enactment or any rule of law, a claim for damages or contribution in respect of a wrong shall be provable in bankruptcy where the wrong out of which the liability to damages or the right to contribution arose was committed before the time of the bankruptcy.

(2) Where the damages or contribution have not been and cannot be otherwise liquidated or ascertained, the court may make such order as to it seems fit for the assessment of the damages or contribution, and the amount when so assessed shall be provable as if it were a debt due at the time of the bankruptcy.

(3) Where a claim for contribution or in respect of a judgment debt for contribution is provable in bankruptcy, no such proof shall be admitted except to the extent that the claimant has satisfied the debt or damages of the injured person, unless the injured person does not prove in respect of the wrong or debt.

Application of moneys payable under certain policies of insurance.

62. —Where a person (hereinafter referred to as the insured) who has effected a policy of insurance in respect of liability for a wrong, if an individual, becomes a bankrupt or dies or, if a corporate body, is wound up or, if a partnership or other unincorporated association, is dissolved, moneys payable to the insured under the policy shall be applicable only to discharging in full all valid claims against the insured in respect of which those moneys are payable, and no part of those moneys shall be assets of the insured or applicable to the payment of the debts (other than those claims) of the insured in the bankruptcy or in the administration of the estate of the insured or in the winding-up or dissolution, and no such claim shall be provable in the bankruptcy, administration, winding-up or dissolution.

Costs in certain actions in which the plaintiff is an infant.

63. —(1) Where a sum of money has been lodged in court by the defendant in an action for a wrong in which the plaintiff is an infant, an application may be made to the judge by the plaintiff to decide whether that sum of money should be accepted or the action should go to trial and—

(a) if, on any such application, the judge decides that the action should go to trial, and

(b) an amount by way of damages is awarded to the plaintiff which does not exceed the sum so lodged,

then, notwithstanding any rule of court or practice to the contrary, the costs in the action shall be at the discretion of the judge.

(2) An appeal shall lie from the order of the judge in relation to the costs in such action.