First Previous (Chapter II Contribution between concurrent wrongdoers) Next (Chapter IV General)

41 1961

CIVIL LIABILITY ACT, 1961

Chapter III

Contributory negligence

Apportionment of liability in case of contributory negligence.

34. —(1) Where, in any action brought by one person in respect of a wrong committed by any other person, it is proved that the damage suffered by the plaintiff was caused partly by the negligence or want of care of the plaintiff or of one for whose acts he is responsible (in this Part called contributory negligence) and partly by the wrong of the defendant, the damages recoverable in respect of the said wrong shall be reduced by such amount as the court thinks just and equitable having regard to the degrees of fault of the plaintiff and defendant: provided that—

(a) if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally;

(b) this subsection shall not operate to defeat any defence arising under a contract or the defence that the plaintiff before the act complained of agreed to waive his legal rights in respect of it, whether or not for value; but, subject as aforesaid, the provisions of this subsection shall apply notwithstanding that the defendant might, apart from this subsection, have the defence of voluntary assumption of risk;

(c) where any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages awarded to the plaintiff by virtue of this subsection shall not exceed the maximum limit so applicable.

(2) For the purpose of subsection (1) of this section—

(a) damage suffered by the plaintiff may include damages paid by the plaintiff to a third person who has suffered damage owing to the concurrent wrongs of the plaintiff and the defendant, and the period of limitation for claiming such damages shall be the same as is provided by section 31 for actions for contribution;

(b) a negligent or careless failure to mitigate damage shall be deemed to be contributory negligence in respect of the amount by which such damage exceeds the damage that would otherwise have occurred;

(c) the plaintiff's failure to exercise reasonable care for his own protection shall not amount to contributory negligence in respect of damage unless that damage results from the particular risk to which his conduct has exposed him, and the plaintiff's breach of statutory duty shall not amount to contributory negligence unless the damage of which he complains is damage that the statute was designed to prevent;

(d) the plaintiff's failure to exercise reasonable care in the protection of his own property shall, except to the extent that the defendant has been unjustly enriched, be deemed to be contributory negligence in an action for conversion of the property;

(e) damage may be held to be caused by the wrong of the defendant notwithstanding any rule of law by which the scope of the defendant's duty is limited to cases where the plaintiff has not been guilty of contributory negligence: but this paragraph shall not render the defendant liable for any damage in respect of which he or a person for whose acts he is responsible has not been careless in fact;

(f) where an action is brought for negligence in respect of a thing that has caused damage, the fact that there was a reasonable possibility or probability of examination after the thing had left the hands of the defendant shall not, by itself, exclude the defendant's duty, but may be taken as evidence that he was not in the circumstances negligent in parting with the thing in its dangerous state.

(3) Article 21 of the Warsaw Convention (which empowers a court to exonerate wholly or partly a carrier who proves that the damage was caused by or contributed to by the negligence of the injured person) shall have effect subject to the provisions of this Part.

Identification.

35. —(1) For the purpose of determining contributory negligence—

(a) a plaintiff shall be responsible for the acts of a person for whom he is, in the particular circumstances, vicariously liable;

(b) a plaintiff in an action brought for the benefit of the dependants of a deceased person under Part IV (whether such plaintiff is the personal representative or a dependant of the deceased) shall be deemed to be responsible for the acts of the deceased;

(c) a plaintiff suing as personal representative of the person suffering the damage shall be deemed to be responsible for the acts of such person;

(d) a plaintiff suing on behalf of another (in this section called a nominal plaintiff) shall be deemed to be responsible for the acts of that other (in this section called the beneficiary) and, in particular, a person suing as personal representative of a deceased person shall be deemed to be responsible for the acts of those who would profit by success in the action, including the dependants of the deceased where the action is brought under Part IV: provided that—

(i) where a nominal plaintiff is suing on behalf of more than one beneficiary and one beneficiary has been guilty of contributory negligence while another beneficiary has not, the provisions of subsection (1) of section 34 shall apply only in respect of the share of the beneficiary guilty of contributory negligence; and the provisions of section 21 shall apply in favour of the defendant against the beneficiary so guilty of contributory negligence, in respect of the sum payable by the defendant for the benefit of the beneficiary not guilty of contributory negligence;

(ii) where it is found to be more convenient, the court may allow a nominal plaintiff to recover in full notwithstanding the contributory negligence of a beneficiary, and the provisions of section 21 shall then apply in favour of the defendant against the beneficiary so guilty of contributory negligence;

(e) a plaintiff suing as assignee of another, whether by operation of law or otherwise, shall be deemed to be responsible for the acts of that other;

(f) where the plaintiff's damage was caused by two or more persons and such persons would have been concurrent wrongdoers were it not for a contract by the plaintiff with one of such persons before the occurrence of the damage exempting that person from liability, the plaintiff shall be deemed to be responsible for the acts of that person;

(g) where the plaintiff's damage was caused by concurrent wrongdoers and before the occurrence of the damage the liability of one of such wrongdoers was limited by contract with the plaintiff to a sum less than that wrongdoer's just share of liability between himself and the other wrongdoer as determined under section 21 apart from such contract, the plaintiff shall be deemed to be responsible for the acts of that wrongdoer;

(h) where the plaintiff's damage was caused by concurrent wrongdoers and after the occurrence of the damage the liability of one of such wrongdoers is discharged by release or accord made with him by the plaintiff, while the liability of the other wrongdoers remains, the plaintiff shall be deemed to be responsible for the acts of the wrongdoer whose liability is so discharged;

(i) where the plaintiff's damage was caused by concurrent wrongdoers and the plaintiff's claim against one wrongdoer has become barred by the Statute of Limitations or any other limitation enactment, the plaintiff shall be deemed to be responsible for the acts of such wrongdoer;

(j) where the plaintiff's damage was caused by concurrent wrongdoers and, in an action against one of such wrongdoers, judgment is given for the defendant and the plaintiff then brings an action against another of such wrongdoers, the plaintiff shall be deemed to be responsible for the acts of the successful defendant if the defendant now sued can prove that he and the successful defendant were in fact concurrent wrongdoers;

(k) a plaintiff who is responsible for the acts of another under paragraphs (a) to (j) of this subsection shall be responsible also for the acts of any other persons for whose acts the said other person would be responsible under the said paragraphs if he were plaintiff in the action.

(2) For the purpose of subsection (1) of section 34, the contributory negligence—

(a) of a nominal plaintiff, or

(b) (where the action is brought for the loss of the consortium or services of a wife or for the loss of the services of a child or servant) of a wife, child or servant, shall neither bar recovery nor reduce the damages awarded; but the provisions of section 21 shall apply in favour of the defendant against the said nominal plaintiff, wife, child or servant, as the case may be.

(3) Nothing in subsection (1) of this section shall affect the rights of the plaintiff against, or render the plaintiff liable in damages for the acts of, a person for whose acts he is deemed by the said subsection to be responsible.

(4) Where a plaintiff is held to be responsible for the acts of another under this section and his damages are accordingly reduced under subsection (1) of section 34, the defendant shall not be entitled to contribution under section 21 from the person for whose acts the plaintiff is responsible.

Set-off of claims.

36. —(1) When judgment is given for the plaintiff on a claim and for the defendant on a counterclaim under subsection (1) of section 34, the one judgment shall be set off against the other and only the balance found owing shall be recoverable.

(2) This section shall apply notwithstanding that one party is a bankrupt or (where a personal representative is party to an action) that the estate administered by him is insolvent.

(3) This section, and also section 251 of the Irish Bankrupt and Insolvent Act, 1857, in so far as it applies to a set-off of judgment debts owing by and to a bankrupt, shall operate only in relation to the satisfaction of debts, and, for all purposes (including the construction of policies of insurance) other than that aforesaid, a judgment shall be treated as creating a debt, duty, obligation and liability for the full amount of the judgment as if there were no set-off, and for such other purposes a debt (whether by judgment or otherwise) shall be deemed to be paid by the judgment debtor to the extent of a debt set off against it.

(4) Notwithstanding anything in section 62, where a claim is made against a person who is insured in respect of a liability alleged in that claim and the claim is paid by the insurer with a deduction in respect of a sum owed to the insured by the person making such claim, the insured or any person representing or deriving title under him shall be entitled to recover from the insurers the amount of the said deduction.

Estoppel in case of contributory negligence.

37. —(1) Where a plaintiff has his damagees reduced under subsection (1) of section 34 on account of contributory negligence and the defendant subsequently brings an action against the plaintiff in respect of damage arising out of the same facts, the determination of liability and the apportionment of fault in the first action shall be binding between the parties in the second action.

(2) Subsection (1) of this section shall apply between two parties notwithstanding that one of them is party to the two actions in different capacities.

Liability of concurrent wrongdoers where plaintiff guilty of contributory negligence.

38. —(1) Where an action is brought against one or more of concurrent wrongdoers by an injured person who is found in such action to have been guilty of contributory negligence and it is held to be just and equitable that the plaintiff's damages should be reduced under subsection (1) of section 34 having regard to his contributory negligence, the judgment against one wrongdoer shall not be for the whole of the plaintiff's recoverable damages but the court shall determine the respective degrees of fault of the plaintiff and of all the defendants to the plaintiff's claim at the time of judgment, leaving out of account the degrees of fault of persons who are not such defendants, and shall give the plaintiff a several judgment against each defendant for such apportioned part of his total damages as the court thinks just and equitable having regard to that defendant's degree of fault determined as aforesaid.

(2) The plaintiff, at any time within the period limited by law for the enforcement of judgments and upon proof that, after taking reasonable steps, he has failed to obtain satisfaction of any judgment in whole or in part, shall have liberty to apply for secondary judgments having the effect of distributing the deficiency among the other defendants in such proportions as may be just and equitable.

(3) This section shall not apply where one of the defendant wrongdoers is responsible for the acts of another; such wrongdoers shall, subject to subsection (1) of section 34, be liable to the plaintiff for a single portion of his damages.

(4) After judgment has been given in accordance with subsection (1) of this section, the plaintiff shall not be entitled to bring a second or subsequent action against a concurrent wrongdoer against whom judgment has not been given, unless he satisfies the court in such action that it was not reasonably possible for him to join such wrongdoer as co-defendant in the first action.

(5) The plaintiff, when commencing such second or subsequent action, shall be under a duty to the wrongdoers already successfully sued who have a right of contribution against the wrongdoer now sued or proposed to be sued to take reasonable steps to notify them of such second or subsequent action at least fourteen days before the institution of proceedings in such action or as soon as is reasonably possible after the commencement of such period.

(6) A wrongdoer receiving such notice shall have the right to become co-plaintiff in the action if the proceedings have not been instituted and otherwise to apply to the court for leave to be joined as co-plaintiff or for consolidation of actions; and a wrongdoer who unreasonably fails to take any of those steps as aforesaid shall be barred from his right of contribution.

(7) If the plaintiff is successful in such second or subsequent action, he shall be entitled to the difference between the total of the damages awarded to him in the previous judgment or judgments and the total of damages that in the view of the court would have been awarded if the said wrongdoer had been joined with the previous defendant or defendants as co-defendant in the earlier action or actions; and he shall be entitled in addition to the provision mentioned in subsection (2) of this section: provided that—

(a) nothing in this subsection shall entitle a plaintiff to recover from such wrongdoer more than he could have recovered had he not brought such previous action or actions;

(b) nothing in this subsection shall preclude such wrongdoer from disputing any issue that he is otherwise entitled to dispute and, if the plaintiff's damages are found to be less than they were held to be by the court in the earlier action or actions, such wrongdoer shall not be liable for more than his due proportion as between himself, the plaintiff and the previous defendant or defendants of the damages so found;

(c) such wrongdoer may at his option avail himself of any matter decided against the plaintiff in such previous action or actions as though such matter were res judicata between them.

(8) Where damages are awarded against a wrongdoer in accordance with the provisions of this section, such wrongdoer may recover contribution from any other wrongdoer not sued at the same time where such recovery is just and equitable subject to the provisions of Chapter II of this Part.

(9) A wrongdoer, when commencing such action for contribution, shall be under a duty to the injured person who has a right of action against the contributor and to the other wrongdoers already successfully sued by the injured person who have a right of contribution against the contributor to take reasonable steps to notify them of such action for contribution at least fourteen days before the institution of proceedings in such action or as soon as is reasonably possible after the commencement of such period.

(10) The injured person or a wrongdoer receiving such notice shall have the rights specified in subsection (6) of this section, and if he unreasonably fails to take advantage of his rights he shall be barred from his right of action for damages or for contribution as the case may be.

(11) Where the injured person brings a second or subsequent action in accordance with the provisions of this section, and where a wrongdoer brings an action for contribution as provided in subsection (8) of this section, the parties to the action shall be bound by the apportionment of fault made in the earlier action or actions: but the defendant shall not be bound by such apportionment if provision comes to be made for distributing any deficiency caused by the failure to obtain satisfaction of any judgment in whole or in part from one of the wrongdoers already sued.

(12) Where—

(a) the plaintiff sues one wrongdoer and either because he obtains judgment by default or because the court negatives contributory negligence the plaintiff recovers judgment in respect of the whole of his damages against such wrongdoer, and

(b) the plaintiff subsequently sues another wrongdoer who is held to have been a concurrent wrongdoer with the first, the plaintiff also being held to have been guilty of contributory negligence as regards both wrongdoers, the defendant secondly sued shall be entitled to credit for the same proportion of the sum received from the defendant first sued as the proportion of the damage adjudged to be borne by the plaintiff as between himself and the defendant secondly sued, and in the event of overpayment shall be entitled to repayment.

Bankruptcy of one wrongdoer.

39. —Where it is made to appear to the court that—

(a) one wrongdoer in whose favour judgment is given is or may become a bankrupt, or

(b) the estate of one wrongdoer for the benefit of which judgment is given is or may be insolvent,

provision shall be made to ensure that such first-mentioned wrongdoer or such estate, as the case may be, shall be deprived of recovery to the extent that the wrongdoer or estate is liable to another party or in the aggregate to other parties as a result of the same accident, occurrence or transaction; and for that purpose judgment in favour of the wrongdoer or for the benefit of the estate shall, where necessary, be attached in whole or in part for the benefit of another party in whose favour judgment is given.

Special findings.

40. —(1) Where damages are awarded to any person by virtue of subsection (1) of section 34, the jury or if there is no jury then the judge or arbitrator shall find and record—

(a) the total damages that would have been awarded if there had not been contributory negligence;

(b) where the plaintiff's damages are reduced under the said subsection, the proportion of such damages that shall not be awarded to the plaintiff and the proportion that shall be payable by the defendant, or the respective proportions that shall be payable by each of the defendants if more than one, expressed in each case in percentage of the total fault of the plaintiff and defendant or defendants;

(c) whose negligence, want of care or caution, or wrong contributed to whose or what damage, and in what respects.

(2) It shall be the duty of the judge or arbitrator to make the requisite calculations following upon such findings.

Courts of limited jurisdiction.

41. —Where an action is brought in a court of limited jurisdiction, the court may award damages up to the limit of its jurisdiction, even though such damages have first been reduced under subsection (1) of section 34 on account of the plaintiff's contributory negligence.

Costs in cases of contributory negligence.

42. —As a general principle, but not so as to limit the judge in the exercise of his discretion, where damages are awarded on claim and counterclaim subject in each case to a reduction for contributory negligence under subsection (1) of section 34, costs shall be awarded in the same proportions as damages.