Contribution Development
Civil Liability Act
Defender Ltd v HSBC Institutional Trust Services (Ireland) Ltd [2020] IESC 37dealt with the issue of contribution.
“Here, the fundamental difficulty for Defender is created, in my view, by the identification mechanism which is, however, a central provision in the Act. Once it is accepted that the release of BLMIS necessarily has the effect that Defender must be identified with the actions of BLMIS, it is difficult to avoid the conclusion at which the High Court arrived, whether by reference to s.21 or s.34.”
“It is possible to observe that the Act operates in perhaps an overly rigid abstract and theoretical way in this regard. While it achieves the objective of providing encouragement to D1 to settle, it discourages P. If cases are assumed to have a defined value and a predictable outcome, then it may make sense to make the plaintiff bear the risk (which, on this view, might be small) of a deficiency between the settlement and the outcome. But experience shows that litigation has a number of variables, and outcomes can vary considerably. A plaintiff may value his or her case at €100,000 but consider that he or she has only a 25% chance of success, and be happy to accept €30,000 in settlement and be oblivious to the view of the defendant, who values the case at €50,000 but thinks, on the limited information available to him or her, that the plaintiff has a 60% chance of success. Both sides are making predictions and educated guesses as to the likely outcome before a composite judge, knowing that the outcome in fact may differ between judges, and allowing for the uncertainties of the availability of witnesses, the impression they create, and the dynamic of litigation, all of which is very difficult to predict. A plaintiff who settles for less than what a court subsequently considers to be the ‘correct’ amount, is not necessarily ‘wrong’, still less unreasonable. Furthermore, while it may be necessary to encourage D1 to settle by providing finality for the settlement, it would encourage D2 to participate in that settlement if he or she knew that they ran even some risk of having to make up any deficiency in D1’s liability if, for example, a court considered that P had acted reasonably in settling with D1.
There are many cases where certainty and predictability should be valued more highly than the precision that ultimate adjudication may provide in a particular case. It is sensible in many cases, particularly where parties are in control of their choices, to make clear-cut readily understandable rules with clearly predictable outcomes. As has been observed, there are some occasions when it is more important that the law be clear rather than clever. A rule that depends upon the circumstances of each individual case, and can therefore only be applied after perhaps expensive litigation, purchases the value of correctness at a high price, and if it is predictable and fair, and cheap, it may be preferable to instead have a clear rule well advertised in advance. There is, indeed, no guarantee that the court hearing will always produce the perfect outcome. However, here, the rule is addressed to litigation, and indeed court adjudication. For s.17 to apply, the case, or at least some part of it, must go to court. A blanket rule is less appropriate in such circumstances. It is difficult to think, therefore, that a proviso to s.17 that provided that it would not take effect if a court considered it was not just and equitable in the circumstances, or perhaps where the plaintiff had acted reasonably in making the settlement, would not meet the policy objectives of the Act more clearly.”
Road Traffic
In Earley v Gallogly Transport Ltd [2010] IEHC 409 the plaintiff a teenager, exited a bus to the rear and was struck by a car. The car’s insurers attempted to obtain contributions from the bus company and this was rejected.
“ The drivers function was to drive the bus. So his primary duty was to drive the bus carefully with a view to ensuring that it was not involved in any accident. In addition, he had to keep order amongst the children while they were on the bus. And finally, in picking up the children, or letting them off, he had to choose a place where this could be done safely without exposing the children to any risk. These were of themselves duties requiring considerable attention and concentration, and it seems to me that it would be unreasonable to impose any additional duty on [the driver] once the children had left his bus and no more, I consider that he ceased to have any duty of care in regard to them.”
“… did not require him to give any advice or warnings to the plaintiff and her companions as to how they were to conduct themselves or manage their road safety once they had left the bus. It is, of course, an essential part of the education of every child that they be trained in road safety. As indicated by Blayney J., a driver of a bus has more than enough to do to concentrate on ensuring that children are safely transported while they are on the bus, and the imposition of a duty to supply or supplement part of their road safety training for when they are not on the bus would be, in my opinion, excessive.”
“Hazard lights are generally appropriate to a stationary vehicle, or perhaps a vehicle of unusual size, carrying a load of exceptional size at an exceptionally low speed. It could not, in my opinion, be reasonably expected that a bus, executing the entirely normal manoeuvre of moving off, having stopped to allow passengers to alight, should have its hazard lights on. The signal given by hazard lights in such circumstances would be either meaningless, or, indeed, possibly misleading. In addition, in moving off, the bus might need to indicate that it was pulling out by using its indicators. Of necessity, this would preclude having hazard lights on.”
Passenger Drunk Driver
Hussey v Twomey [2009] IESC 1 involved a 40% reduction by the trial judge where the plaintiff had been held to be contributorily negligent by allowing themselves to be passengers carried by persons who are intoxicated.
“I can see the attraction of an argument that a passenger who elects to travel with a driver whom he knows to be unfit through alcohol from driving safely should in consequence be seen as thereby surrendering his autonomy and accepting whatever risks ensue thereafter. This fits well with the doctrine of volenti non fit injuria because in a sense it can be said that a passenger who elects to travel with a drunken driver is in much the same position as a person who elects to walk blindfold across an eight lane highway. However, the approach of the courts in common law jurisdictions, at least in the latter part of the last century, was to regard such an outcome whereby a claimant failed in toto as being unduly harsh … Section 34(1)(b) of the Civil Liability Act 1961 expressly abolishes the defence of volenti (save to the limited extent provided by the subsection) and provides that such issues be resolved by references to standards of contributory negligence only. I am satisfied 737 that the mechanism provided by s.34(1) of the Civil Liability Act, 1961 is sufficiently flexible to allow Irish courts calibrate an apportionment for contributory negligence in a manner which does justice in cases of this nature.”
It was accepted that the following principles applied
“1. The court may, where a passenger voluntarily elects to travel in a motor vehicle in circumstances where he knows, or should reasonably be aware, that the driver has consumed alcohol, be penalised in contributory negligence.
2. In determining the issue of contributory negligence, the court must approach the issue on an objective basis, though the test cannot itself be absolutely objective in that the personal characteristics of any given plaintiff and the circumstances in which that plaintiff elects to travel as a passenger must be taken into account. A passenger in a given case may be under a disability by reason of age or infirmity, or may be relieved of any responsibility to make enquiry in the particular circumstances, such as in the case of a passenger travelling in a taxi.
3. An intending passenger who has consumed alcohol cannot rely on self-intoxication for the purpose of avoiding a finding of contributory negligence and in particular cannot rely on self-intoxication in an effort to avoid the consequences of facts which would otherwise have been reasonably discernible to him.”
“In the latter instance the causative effect of the omission may be evident from the fact that a particular passenger may have suffered severe facial injuries from windscreen glass as a result of failing to secure his seatbelt. In the context of a passenger travelling with an intoxicated driver the fault lies in the decision to travel with such a driver in the first instance. The more the passenger should have realised, or did realise, the risk being undertaken, the greater the degree of contributory negligence. There is such scope for a much higher finding of contributory negligence in this context than in the case of a failure to wear a seatbelt.”
In Moran v Fogarty [2009] IESC 55, the Supreme Court increased the deduction for contributory negligence in similar circumstances from 15% to 35%
“In general it can be said that the blameworthiness of the driver will be greater than that of a passenger permitting himself to be driven. The decision to drive is that of the driver and it is he that poses the risk to his passengers and to other road users. Accordingly an apportionment to such a passenger will normally be less than that to the driver. However there may be other elements of fault, for example failure to avail of a seat belt. In such circumstances the correct approach for the court is to take an overall view of the blameworthiness of the passenger and arrive at an apportionment which is just and equitable. Should there be two or three elements of fault it is not necessary that the court should ascribe a percentage to each but rather on an assessment of the blameworthiness as a whole an apportionment should be made.”
Plaintiffs have been held to be contributorily negligent by allowing themselves to be passengers carried by persons who are intoxicated.
“I can see the attraction of an argument that a passenger who elects to travel with a driver whom he knows to be unfit through alcohol from driving safely should in consequence be seen as thereby surrendering his autonomy and accepting whatever risks ensue thereafter. This fits well with the doctrine of volenti non fit injuria because in a sense it can be said that a passenger who elects to travel with a drunken driver is in much the same position as a person who elects to walk blindfold across an eight lane highway. However, the approach of the courts in common law jurisdictions, at least in the latter part of the last century, was to regard such an outcome whereby a claimant failed in toto as being unduly harsh … Section 34(1)(b) of the Civil Liability Act 1961 expressly abolishes the defence of volenti (save to the limited extent provided by the subsection) and provides that such issues be resolved by references to standards of contributory negligence only. I am satisfied 737 that the mechanism provided by s.34(1) of the Civil Liability Act, 1961 is sufficiently flexible to allow Irish courts calibrate an apportionment for contributory negligence in a manner which does justice in cases of this nature.”
“1. The court may, where a passenger voluntarily elects to travel in a motor vehicle in circumstances where he knows, or should reasonably be aware, that the driver has consumed alcohol, be penalised in contributory negligence.
2. In determining the issue of contributory negligence, the court must approach the issue on an objective basis, though the test cannot itself be absolutely objective in that the personal characteristics of any given plaintiff and the circumstances in which that plaintiff elects to travel as a passenger must be taken into account. A passenger in a given case may be under a disability by reason of age or infirmity, or may be relieved of any responsibility to make enquiry in the particular circumstances, such as in the case of a passenger travelling in a taxi.
3. An intending passenger who has consumed alcohol cannot rely on self-intoxication for the purpose of avoiding a finding of contributory negligence and in particular cannot rely on self-intoxication in an effort to avoid the consequences of facts which would otherwise have been reasonably discernible to him.”
The apportionment was to be considered “against the backdrop of changed societal perceptions”. Contributory negligence for travelling with an intoxicated motorist differed from that from the failure to wear a seatbelt:
“In the latter instance the causative effect of the omission may be evident from the fact that a particular passenger may have suffered severe facial injuries from windscreen glass as a result of failing to secure his seatbelt. In the context of a passenger travelling with an intoxicated driver the fault lies in the decision to travel with such a driver in the first instance. The more the passenger should have realised, or did realise, the risk being undertaken, the greater the degree of contributory negligence. There is such scope for a much higher finding of contributory negligence in this context than in the case of a failure to wear a seatbelt.”
Kearns J. considered that the extent of the apportionment had also to be seen “against the backdrop of changed societal perceptions”. In this respect the apportionment of contributory negligence in respect of travelling with an intoxicated motorist was quite different from the type of contributory negligence which arose from the failure to wear a seatbelt:
“In the latter instance the causative effect of the omission may be evident from the fact that a particular passenger may have suffered severe facial injuries from windscreen glass as a result of failing to secure his seatbelt. In the context of a passenger travelling with an intoxicated driver the fault lies in the decision to travel with such a driver in the first instance. The more the passenger should have realised, or did realise, the risk being undertaken, the greater the degree of contributory negligence. There is such scope for a much higher finding of contributory negligence in this context than in the case of a failure to wear a seatbelt.”
Trip & Fall
Stokes v South Dublin County Council [2017] IEHC 229
“In relation to the allegation of contributory negligence, I accept the evidence … that, while the existence of the depression and scoring was visible from a distance of approximately 12m, given the growth of grass in the depression, the depth of the depression was not readily apparent to someone using the footpath.
I also accept the plaintiff’s evidence that he was not looking directly at the ground while jogging. That is reasonable. A jogger will have a general view of the ground in front of him, when he is some distance away, but because his eyes are around 2m above ground level, he is not likely to see dangers on the surface of the path where he is actually running, unless he makes a conscious effort to look down at the ground immediately in front of him. As this hole and scoring were not readily apparent from far back, it was reasonable that he was not looking at his feet when traversing this area of the path.”