Contributory Negligence
Civil Liability Act
Contribution in respect of damages.
21.— (1) Subject to the provisions of this Part, a concurrent wrongdoer (for this purpose called the claimant) may recover contribution from any other wrongdoer who is, or would if sued at the time of the wrong have been, liable in respect of the same damage (for this purpose called the contributor), so, however, that no person shall be entitled to recover contribution under this Part from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought.
(2) In any proceedings for contribution under this Part, the amount of the contribution recoverable from any contributor shall be such as may be found by the court to be just and equitable having regard to the degree of that contributor’s fault, and the court shall have power to exempt any person from liability to make contribution or to direct that the contribution to be recovered from any contributor shall amount to a complete indemnity.
Contribution claimed by settling tortfeasor.
22.— (1) Where the claimant has settled with the injured person in such a way as to bar the injured person’s claim against the other concurrent wrongdoers, the claimant may recover contribution in the same way as if he had suffered judgment for damages, if he satisfies the court that the amount of the settlement was reasonable; and, if the court finds that the amount of the settlement was excessive, it may fix the amount at which the claim should have been settled.
(2) Where the claimant has settled with the injured person without barring the injured person’s claim against the other concurrent wrongdoers or has paid to the injured person a sum on account of his damages, the claimant shall have the same right of contribution as aforesaid, and for this purpose the payment of a reasonable consideration for a release or accord shall be regarded as a payment of damages for which the claimant is liable to the injured person: but the contributor shall have the right to claim repayment of the whole or part of the sum so paid if the said contributor is subsequently compelled to pay a sum in settlement of his own liability to the injured person and if the circumstances render repayment just and equitable.
Annotations:
Modifications (not altering text):
C15
Application of section extended with modifications (1.06.2004) by Personal Injuries Assessment Board Act 2003 (46/2003), s. 42, S.I. No. 252 of 2004.
Application of section 22 of Act of 1961 (claims for contributions between concurrent wrongdoers).
42.—(1) As between—
( a) one or more respondents and either or both—
(i) one or more non-participating respondents,
(ii) one or more non-accepting respondents,
( b) one or more non-participating respondents or non-accepting respondents and either or both—
(i) one or more other non-participating respondents,
(ii) one or more other non-accepting respondents,
and
( c) any one or more of the foregoing persons and one or more other persons (not falling within either of the preceding paragraphs) who are concurrent wrongdoers as respects the relevant claim,
an order to pay shall, for the purposes of section 22 of the Act of 1961, be regarded as a settlement by the first-mentioned respondent or respondents in paragraph (a) with the claimant of his or her relevant claim.
…
Enforcement of judgment for contribution.
23.— (1) Where, in accordance with the provisions of this Part, judgment is given for contribution in respect of damages for which the claimant is or has been liable to the injured person, execution shall not be issued on such judgment until after satisfaction by the claimant in whose favour it is given before or after the said judgment of the whole or part of the damages for which he is liable to the injured person, and execution shall then issue only in respect of the amount by which the sum paid by him exceeds his just proportion of that particular amount, as such proportion is determined by the court in accordance with this Part.
(2) Notwithstanding anything in subsection (1) of this section, execution may be issued on such judgment as aforesaid after satisfaction by the claimant in whose favour it is given of his just proportion of the damages for which he is liable to the injured person, provided that in this case the court makes provision, by obtaining the personal undertaking of the claimant’s solicitor or otherwise, for applying the sum received under the said judgment towards satisfaction of the damages due to the injured person
(3) In this section “ damages for which he is liable to the injured person” means damages for which the claimant is liable at the time when satisfaction is made to the injured person or his representatives or lawful assignees.
(4) A payment of damages by the claimant at a time when the injured person’s cause of action against the claimant is barred by the Statute of Limitations or any other limitation enactment shall not found a claim to levy execution under a judgment for contribution: but such a payment shall found such a claim if, at the time when it was made, the injured person’s cause of action against the contributor was not barred.
Annotations:
Editorial Notes:
E3
In the printed version of the Act there is no full stop at the end of subsection 2.
Contribution in respect of costs.
24.— A judgment for contribution may be given in respect of costs payable to the injured person or incurred by the claimant: but, where the injured person has sued the claimant and the contributor together and has recovered judgment for costs against both of them, the provisions of section 23 shall apply, with the substitution of the word “ costs” for the word “damages” where-ever it there appears.
One wrongdoer omitted from claim for contribution;
contribution in respect of contribution.
25.— Where, of three or more concurrent wrongdoers, one is omitted from the claim for contribution, contribution shall be awarded to the claimant on the basis that responsibility for the damage is to be borne by the claimant and the contributor or contributors without regard to the responsibility of the omitted wrongdoer, and, in such a case, a claimant whose net remaining liability is increased or a contributor whose contribution is increased by reason of the fact that judgment has not been given against the omitted wrongdoer may claim contribution from such omitted wrongdoer in accordance with the provisions of this Part: but, where such last-mentioned claim for contribution is made by a contributor in respect of his own liability to make contribution and judgment is given in such contributor’s favour, execution shall not be issued on that judgment—
( a) except in accordance with the provisions of section 23, with the substitution of “ contribution” for “damages” and of “ original claimant for contribution” for “injured person” wherever they there appear, and “ just proportion” in the said section being understood to mean for this purpose just proportion as between the contributor in whose favour judgment for contribution is now given and the wrongdoer against whom the said judgment is given, and in any case
( b) to an amount greater than the sum that, when added to the amount (if any) still due to the injured person, will equal the just proportion of the damages payable by the wrongdoer against whom the said judgment is given.
Contribution where property is restored to its owner.
26.— For the purpose of a claim for contribution—
( a) a person who restores property to its true owner shall be deemed to be a concurrent wrongdoer with one through whom he originally claimed the property and who was a wrongdoer in respect of it towards the true owner, and
( b) such restoration of property shall, as against such wrongdoer, be deemed to be a payment of damages to the extent of the value of the property.
Procedure for claiming contribution.
27.— (1) A concurrent wrongdoer who is sued for damages or for contribution and who wishes to make a claim for contribution under this Part—
( a) shall not, if the person from whom he proposes to claim contribution is already a party to the action, be entitled to claim contribution except by a claim made in the said action, whether before or after judgment in the action; and
( b) shall, if the said person is not already a party to the action, serve a third-party notice upon such person as soon as is reasonably possible and, having served such notice, he shall not be entitled to claim contribution except under the third-party procedure. If such third-party notice is not served as aforesaid, the court may in its discretion refuse to make an order for contribution against the person from whom contribution is claimed.
(2) The provisions of subsection (1) of this section shall not apply to any contribution claim where the parties to the claim are precluded by agreement or otherwise from disputing any earlier determination by a court of the amount of the injured person’s damages and the proportion in which contribution should be made.
(3) Where it is sought to serve a third-party notice making a claim for contribution, or making a claim for damages in respect of a wrong committed to the third-party plaintiff, such claim for damages having arisen in whole or in part out of the same facts as the facts giving rise to the principal plaintiff’s claim, leave to serve a third-party notice shall not be refused merely because the issue between the third-party plaintiff and the third party will involve a difficult question of law.
(4) Where a concurrent wrongdoer makes a payment to the injured person without action in settlement of the injured person’s claim against himself and subsequently claims contribution in accordance with section 22, the contributor shall have the right to have the injured person joined as co-defendant for the purpose of binding him by the determination of the proportions of contribution, unless the injured person is co-plaintiff in the action or the injured person has effectively agreed to be bound by such determination or the injured person has no claim against the contributor or the injured person has already sued the contributor to judgment.
F8 [ (5) A claim may be made or a notice may be served pursuant to subsection (1) of this section notwithstanding that the person making the claim or serving the notice denies or does not admit that he is a wrongdoer, and the making of the claim or serving of the notice shall not be taken as implying any admission of liability by him. ]
Amendments:
F8
Inserted (7.07.1964) by Civil Liability (Amendment) Act 1964 (17/1964), s. 3, commenced on enactment.
Modifications (not altering text):
C16
Application of section restricted (10.04.2002) by Residential Institutions Redress Act 2002 (13/2002), s. 24, commenced on enactment.
Indemnity and contribution.
24.—Where an applicant has accepted an award made under section 13 or section 15 and has complied with section 13(6), no cause of action or claim for indemnity and contribution or either of them, whether by third party procedure pursuant to section 27 of the Civil Liability Act, 1961 or otherwise, in any civil proceedings or otherwise, shall lie against the State or a public body if such proceedings arise out of the same, or substantially the same, acts complained of in an application made under this Act and in respect of which the applicant is a party.
Distribution of loss on failure to obtain satisfaction.
28.— Where, of three or more concurrent wrongdoers, judgment for contribution is given in favour of one against two or more, the claimant, 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.
Estoppel when contribution is claimed.
29.— (1) In any proceeding for contribution, the contributor shall not be entitled to resist the claim on the ground that the claimant who has paid the injured person was not liable to such person; but, subject to this section and to the general law of estoppel, he may resist the claim on the ground that he himself is not liable to such person and, for this purpose, may dispute any question of law or fact even though that question arises also on the liability of the claimant to the injured person; and the contributor may in the same way dispute the amount of the damage suffered by the injured person.
(2) Where a claim for contribution is made by third-party notice in the injured person’s action and the third party is given leave to defend the main action, he shall be bound by the finding of the court upon the questions that he is given leave to defend.
(3) Where the contributor had knowledge of an action brought by the injured person against the claimant, and unreasonably failed to make a proposal for assisting the claimant in the defence of the action, and the injured person obtained judgment against the claimant, the contributor shall, in any proceeding brought against him by the claimant, be estopped from disputing the propriety or amount of the judgment obtained by the injured person or any question of law or fact common to the claimant’s liability to the injured person and the contributor’s liability to the injured person: but the contributor shall not be so estopped where the claimant submitted to judgment in fraud of the contributor.
(4) In any proceeding for contribution the claimant shall be bound by any finding of law or fact in the injured person’s action against him that was necessary to establish his liability to the injured person.
(5) Where the injured person has sued the claimant and contributor together and failed against the contributor, the claimant shall, in any proceeding for contribution, be bound by any finding of law or fact that was necessary to negative the contributor’s liability to the injured person: provided that—
( a) the claimant shall not be so bound where the injured person submitted to judgment in fraud of the claimant;
( b) this subsection shall not apply where the injured person’s action was brought in a court outside the State, unless by the law of the court the claimant had an opportunity of presenting evidence against the contributor, of appealing against a judgment in his favour and of contesting an appeal by him.
(6) ( a) A decision on the proportion of fault between claimant and contributor on a claim for contribution shall be binding upon the same persons in a subsequent claim in respect of damage suffered by one or both of them arising out of the same facts, and, conversely, such a decision in a claim in respect of such damage shall be binding upon the same persons in a subsequent claim for contribution.
( b) Paragraph (a) of this subsection shall apply between two parties notwithstanding that one of them is party to the two actions in different capacities.
(7) A concurrent wrongdoer who makes a payment to the injured person without action in settlement of the injured person’s claim against himself and who subsequently claims contribution under section 22 shall, where the injured person has sued the contributor, be bound by the apportionment made by the court in the injured person’s action in accordance with paragraph (h) of subsection (1) of section 35.
(8) It shall not be a defence to a claim for contribution merely to show that the injured person has failed in an action against the contributor to which the claimant was not a party.
Legal incidents of claim for contribution.
30.— The right to ask the court for an award of contribution shall be deemed to be in the nature of a quasi-contractual right which shall pass to the personal representatives of the claimant for the benefit of his estate, and shall avail against the personal representatives of the contributor; and the right to contribution shall be deemed to be a cause of action within section 9.
Limitation of actions for contribution.
31.— An action may be brought for contribution within the same period as the injured person is allowed by law for bringing an action against the contributor, or within the period of two years after the liability of the claimant is ascertained or the injured person’s damages are paid, whichever is the greater.
Evidence and appeals.
32.— (1) Where an action is brought against two or more persons as concurrent wrongdoers, each defendant shall have the right to present evidence against the other or others.
(2) Where an action is brought against two or more persons as concurrent wrongdoers and the plaintiff obtains judgment and the judgment is satisfied by one of such wrongdoers, another of such wrongdoers may appeal against the judgment notwithstanding that it has been satisfied.
(3) Where an action is brought against two or more persons as concurrent wrongdoers and the plaintiff obtains judgment and one defendant appeals against the judgment, another defendant may, upon giving such notice as may be required by rules of court, contest the appeal as respondent.
(4) Where an action is brought against two or more persons as concurrent wrongdoers and the plaintiff succeeds against one and fails against another, the unsuccessful defendant may appeal against the judgment in favour of the successful defendant.
Contribution to be regarded as damages.
33.— (1) For the purpose of a contract insuring against liability for a wrong or against a liability to pay damages, the liability of a wrongdoer to make contribution under this Part to a concurrent wrongdoer shall be deemed to be a liability to pay damages for a wrong, unless the contrary intention appears from the contract.
(2) Where a claim for contribution between wrongdoers is made under a contract for contribution between them, the provisions of subsection (1) of this section shall apply to the extent that the claim could have been made under the provisions of this Part instead of under the contract for contribution.
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 F9 [ , subject to paragraph (a) of subsection (1) of this section, ] 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.
Annotations:
Amendments:
F9
Inserted (7.07.1964) by Civil Liability (Amendment) Act 1964 (17/1964), s. 4, commenced on enactment.