Civil Liability Act, 1961

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CIVIL LIABILITY ACT, 1961.

ARRANGEMENT OF SECTIONS

PART I

Preliminary and General Section

Section 1

Short title and collective citation.

Section 2

Interpretation generally.

Section 3

Adaptation of references to repealed Acts.

Section 4

Savings.

Section 5

Repeals.

PART II

Survival of Certain Causes of Action on Death

Section 6

Definition (Part II).

Section 7

Survival of certain causes of action vested in deceased person.

Section 8

Survival of certain causes of action subsisting against deceased person.

Section 9

Time limit in respect of causes of action which survive against estate of deceased person.

Section 10

Insolvency of estate against which proceedings, are maintainable.

PART III

Concurrent Fault

Chapter I Liability of concurrent wrongdoers

Section 11

Persons who are concurrent wrongdoers.

Section 12

Extent of liability.

Section 13

Joinder of defendants.

Section 14

Judgments to be several.

Section 15

Judgment by default.

Section 16

Discharge and estoppel by satisfaction.

Section 17

Release of, or accord with, one wrongdoer.

Section 18

Judgment against one wrongdoer.

Section 19

Judgment in favour of one alleged wrongdoer.

Section 20

Limitation of actions against one of concurrent wrongdoers.

Chapter II Contribution between concurrent wrongdoers

Section 21

Contribution in respect of damages.

Section 22

Contribution claimed by settling tortfeasor.

Section 23

Enforcement of judgment for contribution.

Section 24

Contribution in respect of costs.

Section 25

One wrongdoer omitted from claim for contribution; contribution in respect of contribution.

Section 26

Contribution where property is restored to its owner.

Section 27

Procedure for claiming contribution.

Section 28

Distribution of loss on failure to obtain satisfaction.

Section 29

Estoppel when contribution is claimed.

Section 30

Legal incidents of claim for contribution.

Section 31

Limitation of actions for contribution.

Section 32

Evidence and appeals.

Section 33

Contribution to be regarded as damages.

Chapter III Contributory negligence

Section 34

Apportionment of liability in case of contributory negligence.

Section 35

Identification.

Section 36

Set-off of claims.

Section 37

Estoppel in case of contributory negligence.

Section 38

Liability of concurrent wrongdoers where plaintiff guilty of contributory negligence.

Section 39

Bankruptcy of one wrongdoer.

Section 40

Special findings.

Section 41

Courts of limited jurisdiction.

Section 42

Costs in cases of contributory negligence.

Chapter IV General

Section 43

Application to breaches of strict duty.

Section 44

One-sided periods of limitation.

Section 45

Restitution.

Section 46

Maritime cases.

PART IV

Fatal Injuries

Section 47

Definitions (Part IV).

Section 48

Action where death caused by wrongful act, neglect or default.

Section 49

Damages.

Section 50

Sums not to be taken into account in assessing damages.

Section 51

Adaptation of references to Fatal Accidents Acts, 1846 to 1908.

PART V

Amendments of the Workmen's Compensation Acts, 1934 Tο 1955

Section 52

Definitions (Part V).

Section 53

Amendments of section 60 of the Act of 1934.

Section 54

Amendment of section 61 of the Act of 1934.

PART VI

Amendment of the Air Navigation and Transport Act, 1936

Section 55

Re-enactment, with amendments, of section 18 of the Act of 1936.

PART VII

Miscellaneous

Section 56

Abolition of last opportunity rule.

Section 57

Abolition of defences.

Section 58

Wrongs to unborn child.

Section 59

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

Section 60

Liability of road authority for failure to maintain public road.

Section 61

Proof of claims for damages or contribution in bankruptcy.

Section 62

Application of moneys payable under certain policies of insurance.

Section 63

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

SCHEDULE Enactments Repealed Acts Referred to Air Navigation and Transport Act, 1936 1936, No. 40 Statute of Limitations, 1957 1957, No. 6 Workmen's Compensation Act, 1934 1934, No. 9 Irish Bankrupt and Insolvent Act, 1857 1857, c. 60 Adoption Act, 1952 1952, No. 25 Workmen's Compensation Act, 1934 1934, No. 9 Workmen's Compensation (Amendment) Act, 1953 1953, No. 25 Number 41 of 1961.

CIVIL LIABILITY ACT, 1961.

AN ACT TO REFORM THE LAW RELATING TO CIVIL LIABILITY, PROVIDING IN PARTICULAR FOR THE SURVIVAL OF CAUSES OF ACTION ON DEATH, FOR PROCEEDINGS AGAINST AND CONTRIBUTION BETWEEN CONCURRENT WRONGDOERS AND FOR LIABILITY IN CASES OF CONTRIBUTORY NEGLIGENCE, TO PROVIDE FOR DAMAGES FOR THE BENEFIT OF THE DEPENDANTS OF ANY PERSON FATALLY INJURED BY THE WRONGFUL ACT, NEGLECT OR DEFAULT OF ANOTHER, AND TO PROVIDE FOR OTHER MATTERS CONNECTED WITH THE FOREGOING. [17th August, 1961.] BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:—

PART I

Preliminary And General Short title and collective citation.

1.—(1) This Act may be cited as the Civil Liability Act, 1961.

Part VI

of this Act may be cited together as the Air Navigation and Transport Acts, 1936 to 1961.

Interpretation generally.

2.—(1) In this Act, save where the context otherwise requires— “the Act of 1936” means the Air Navigation and Transport Act, 1936 ; “the Statute of Limitations” means the Statute of Limitations, 1957 ; “act” includes default or other omission; “action” includes counterclaim and proceedings by way of arbitration; “any other limitation enactment” includes sections 31, 46 and 48; “bankrupt” includes an arranging debtor; “bankruptcy” includes an arrangement under an order of the court for protection; “concurrent wrongs” means wrongs committed by persons in respect of which they are concurrent wrongdoers; “contract” means a contract under seal or by parol; “contributor” means a person who is liable or alleged to be liable to make contribution; “court” means, in relation to any claim, the court or arbitrator by or before whom the claim falls to be determined; “damage” includes loss of property, loss of life and personal injury; “damages”, except in Part IV, includes compensation for breach of trust; “defendant” includes defendant to a counterclaim; “injured person” means a person against whom a wrong is committed; “liable” refers to legal liability whether or not enforceable by action; “negligence” includes breach of statutory duty; “personal injury” includes any disease and any impairment of a person's physical or mental condition, and “injured” shall be construed accordingly; “plaintiff” includes a defendant counterclaiming and a defendant claiming against a co-defendant by notice or otherwise; “third party” includes fourth party and subsequent party; “wrong” means a tort, breach of contract or breach of trust, whether the act is committed by the person to whom the wrong is attributed or by one for whose acts he is responsible, and whether or not the act is also a crime, and whether or not the wrong is intentional; “wrong of the defendant” includes, where the defendant is a personal representative, a wrong of the deceased for which the defendant is liable as personal representative; “wrongdoer” means a person who commits or is otherwise responsible for a wrong.

Adaptation of references to repealed Acts.

3.—A reference in any enactment to any Act repealed by this Act shall be construed as a reference to this Act.

Savings.

4.—(1) Nothing in this Act shall have effect in relation to any cause of action which accrued before the passing of this Act.

Repeals.

5.—The enactments mentioned in the Schedule are hereby repealed to the extent specified in column (3), except in respect of cases saved by section 4.

PART II

Survival of Certain Causes of Action on Death Preliminary Definition (Part II).

6.—In this Part “excepted cause of action” means— (a) a cause of action for breach of promise to marry or for defamation or for seduction or for inducing one spouse to leave or remain apart from the other or for criminal conversation, or (b) any claim for compensation under the Workmen's Compensation Act, 1934 .

Causes of action vested in deceased person Survival of certain causes of action vested in deceased person.

7.—(1) On the death of a person on or after the date of the passing of this Act all causes of action (other than excepted causes of action) vested in him shall survive for the benefit of his estate.

Part IV

of this Act.

Causes of action subsisting against deceased person Survival of certain causes of action subsisting against deceased person.

8.—(1) On the death of a person on or after the date of the passing of this Act all causes of action (other than excepted causes of action) subsisting against him shall survive against his estate.

Time limit in respect of causes of action which survive against estate of deceased person.

9.—(1) In this section “the relevant period” means the period of limitation prescribed by the Statute of Limitations or any other limitation enactment.

Insolvency of estate against which proceedings, are maintainable.

10.—In the event of the insolvency of an estate against which proceedings are maintainable, any liability in respect of the cause of action in respect of which the proceedings are maintainable shall be deemed to be a debt provable in the administration of the estate, notwithstanding that it is a demand in the nature of unliquidated damages arising otherwise than by a contract or promise.

PART III

Concurrent Fault

Chapter I

Liability of concurrent wrongdoers Persons who are concurrent wrongdoers.

11.—(1) For the purpose of this Part, two or more persons are concurrent wrongdoers when both or all are wrongdoers and are responsible to a third person (in this Part called the injured person or the plaintiff) for the same damage, whether or not judgment has been recovered against some or all of them.

Extent of liability.

12.—(1) Subject to the provisions of sections 14, 38 and 46, concurrent wrongdoers are each liable for the whole of the damage in respect of which they are concurrent wrongdoers.

Joinder of defendants.

13.—An action may be brought against all of concurrent wrongdoers or against any of them without joining the other or others, but the court shall have power— (a) in an action for the execution of trusts, to require the trust estate to be properly represented; (b) in an action where the title to property is in question, to require the joinder of all those interested or claiming to be interested in the property.

Judgments to be several.

14.—(1) Where judgment is given against concurrent wrongdoers who are sued together, the court may give judgment against the defendants together or against the defendants separately and, if the judgment is given against the defendants together, it shall take effect as if it were given against them separately.

Judgment by default.

15.—(1) Where one of concurrent wrongdoers who are sued together makes default of appearance or defence, the plaintiff may obtain an interlocutory judgment against him and damages shall be assessed against him— (a) at the same time as damages are assessed at the trial against the other defendants who appear; (b) if the plaintiff fails against such other defendants or discontinues his action against them, separately under the interlocutory judgment.

Discharge and estoppel by satisfaction.

16.—(1) Where damage is suffered by any person as a result of concurrent wrongs, satisfaction by any wrongdoer shall discharge the others whether such others have been sued to judgment or not.

Release of, or accord with, one wrongdoer.

17.—(1) The release of, or accord with, one concurrent wrongdoer shall discharge the others if such release or accord indicates an intention that the others are to be discharged.

Judgment against one wrongdoer.

18.—(1) Where damage is suffered by any person as a result of concurrent wrongs— (a) judgment recovered against any wrongdoer liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as concurrent wrongdoer in respect of the same damage; (b) if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered, or for the benefit of his estate, or for the benefit of his dependants, against wrongdoers liable in respect of the damage, the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given; and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the court is of opinion that there was reasonable ground for bringing the action: but this paragraph shall not apply where the judgment first given was an apportioned judgment given in pursuance of section 14, section 38 or section 46.

Judgment in favour of one alleged wrongdoer.

19.—(1) Where the injured person sues one or more of alleged concurrent wrongdoers and judgment is given for one defendant, the injured person shall be bound by the findings of fact in favour of such defendant in the injured person's present or subsequent action against another or others of the alleged concurrent wrongdoers.

Limitation of actions against one of concurrent wrongdoers.

20.—For the purpose of the Statute of Limitations or any other limitation enactment concealed fraud by one of concurrent wrongdoers shall not suspend time for another or others.

Chapter II

Contribution between concurrent wrongdoers 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Chapter IV

General Application to breaches of strict duty.

43.—In determining the amount of contribution or of reduction of damages under subsection (1) of section 34 for contributory negligence the court may take account of the fact that the negligence or wrong of one person consisted only in a breach of strict statutory or common-law duty without fault, and may accordingly hold that it is not just and equitable to cast any part of the damage upon such person.

One-sided periods of limitation.

44.—Where, in any claim for contribution between wrongdoers, or in any case to which subsection (1) of section 34 applies, the defendant avoids liability to the plaintiff by pleading the Statute of Limitations or any other limitation enactment, neither he nor any other person responsible for his acts shall be entitled to recover any damages or contribution from the plaintiff.

Restitution.

45.—(1) Where, in cases falling within sections 16 or 17 or within subsection (1) of section 35, the defendant owing to ignorance of the facts omits to claim the benefit of the provisions therein contained, the defendant, notwithstanding that judgment has been given in the plaintiff's favour, shall have a right to repayment by the plaintiff of such sum as the plaintiff should not have recovered in virtue of the said provisions.

Maritime cases.

46.—(1) (a) Where, by the fault of two or more vessels, damage is caused to one or more of those vessels or to another vessel or to the cargo of any of those vessels or any property on board, and an action is brought for such damage, the liability of each vessel in respect of such damage shall be in proportion to the degree in which such vessel was in fault and accordingly there shall be no right of contribution in respect of such apportioned liability: provided that— (i) 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 among the vessels in fault; (ii) nothing in this subsection shall affect the liability of any person under a contract of carriage or any contract, or shall be construed as imposing any liability upon any person from which he is exempted by any contract or by any provision of law, or as affecting the right of any person to limit his liability in the manner provided by law. (b) For the purposes of paragraph (a) of this subsection the liability of a vessel for damage shall mean the liability of those responsible for the proper navigation and management of the vessel. (c) Paragraph (a) of this subsection shall not apply to a claim for loss of life or personal injuries.

PART IV

Fatal Injuries Definitions (Part IV).

47.—(1) In this Part— “dependant”, in relation to a person whose death is caused by a wrongful act, means any member of the family of the deceased who suffers injury or mental distress; “member of the family” means wife, husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother, half-sister; “wrongful act” includes a crime.

Action where death caused by wrongful act, neglect or default.

48.—(1) Where the death of a person is caused by the wrongful act of another such as would have entitled the party injured, but for his death, to maintain an action and recover damages in respect thereof, the person who would have been so liable shall be liable to an action for damages for the benefit of the dependants of the deceased.

Damages.

49.—(1) (a) The damages under section 48 shall be— (i) the total of such amounts (if any) as the jury or the judge, as the case may be, shall consider proportioned to the injury resulting from the death to each of the dependants, respectively, for whom or on whose behalf the action is brought, and (ii) subject to paragraph (b) of this subsection, the total of such amounts (if any) as the judge shall consider reasonable compensation for mental distress resulting from the death to each of such dependants. (b) The total of any amounts awarded by virtue of subparagraph (ii) of paragraph (a) of this subsection shall not exceed one thousand pounds. (c) Each amount awarded by virtue of paragraph (a) of this subsection shall be indicated separately in the award. (d) Subparagraph (ii) of paragraph (a) of this subsection shall have effect only in respect of a death occurring within three years after the date of the passing of this Act.

Sums not to be taken into account in assessing damages.

50.—In assessing damages under this Part account shall not be taken of— (a) any sum payable on the death of the deceased under any contract of insurance, (b) any pension, gratuity or other like benefit payable under statute or otherwise in consequence of the death of the deceased.

Adaptation of references to Fatal Accidents Acts, 1846 to 1908.

51.—A reference in any enactment to the Fatal Accidents Acts, 1846 to 1908, or to any of them shall be construed as a reference to this Part.

PART V

Amendments of the Workmen's Compensation Acts, 1934 to 1955 Definitions (Part V).

52.—In this Part— “the Act of 1934” means the Workmen's Compensation Act, 1934 ; “the Act of 1953” means the Workmen's Compensation (Amendment) Act, 1953 ; “employer” and “workman” have the same meaning as in the Workmen's Compensation Acts, 1934 to 1955.

Amendments of section 60 of the Act of 1934.

53.—(1) In this section “section 60” means section 60 of the Act of 1934.

Amendment of section 61 of the Act of 1934.

54.—(1) Where a workman or his personal representative or his dependant or other person has recovered compensation under the Workmen's Compensation Acts, 1934 to 1955, or under any scheme certified under the Act of 1934 in respect of an injury caused in circumstances which would give a right to recover reduced damages in respect thereof by virtue of subsection (1) of section 34 from some person other than the employer (in this subsection referred to as the third party), any right conferred by section 61 of the Act of 1934, on the person by whom the compensation was paid or on any person called upon to pay an indemnity under section 19 of the Act of 1934, to be indemnified by the third party shall be limited to a right to be indemnified in respect of such part only of the sum so paid or payable by the said person as bears to the total of the sum so paid or payable the same proportion as the said reduced damages bears to the total damages which would have been recoverable if the workman had not been negligent.

PART VI

Amendment of the Air Navigation and Transport Act, 1936 Re-enactment, with amendments, of section 18 of the Act of 1936.

55.—The following section shall be substituted for section 18 of the Act of 1936— “Liability of carrier in the event of the death of a passenger.

18.—(1) (a) In this section— ‘dependant’, in relation to a passenger in respect of whose death a liability is imposed on a carrier by Article 17 of the First Schedule to this Act, means any member of the family of the deceased who suffers injury or mental distress; ‘member of the family’ means wife, husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother, half-sister. (b) In deducing any relationship for the purposes of this section— (i) a person adopted under the Adoption Act, 1952 , shall be considered the legitimate offspring of the adopter or adopters; (ii) subject to subparagraph (i) of this paragraph, an illegitimate person shall be considered the legitimate offspring of his mother and reputed father; (iii) a person in loco parentis to another shall be considered the parent of that other.

(l) the amount recovered in the action shall, after deducting the costs not recovered from the defendant, be divided among the persons entitled in such shares as the jury or the judge, as the case may be, may have determined; (m) in assessing the damages account shall not be taken of any sum payable on the death of the passenger under any contract of insurance, or of any pension, gratuity or other like benefit payable under statute or otherwise in consequence of the death of the deceased; (n) the court before which the action is brought may at any stage of the proceedings make such order as appears to the court to be just and equitable in view of the provisions of the First Schedule to this Act limiting the liability of the carrier and of any proceedings which have, or are likely to be, commenced outside the State in respect of the death of the passenger.”

PART VII

Miscellaneous 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.

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.

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.

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.

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.

SCHEDULE Enactments Repealed

Section 5.

Part I

Acts of the Parliament of England applied to Ireland by the Act of the Parliament of Ireland (10 Henry 7. c. 22 (Ir.)) passed in the year 1495 and entitled “An Act confirming all Statutes made in England”

Session and Chapter Title Extent of Repeal

(1)

(2)

Writ of accompt for executors (1285).

The whole chapter.

4 Edw. 3. c. 7.

Executors shall have an action of trespass for a wrong done to their testator (1330).

The whole chapter.

Part II

Act of the Parliament of Ireland Session and Chapter Title Extent of Repeal

(1)

(2)

An Act for the recovery of arrearages of rents by executors of tenant in fee simple (1634).

The whole Act so far as unrepealed.

Part III

Acts of the Parliament of the late United Kingdom of Great Britain and Ireland Session and Chapter Short Title Extent of Repeal

(1)

(2)

Debtors (Ireland) Act, 1840 .

Section 31.

51 & 52 Vic. c. 64.

Law of Libel Amendment Act, 1888.

Section 5.

1 & 2 Geo. 5. c. 57.

Maritime Conventions Act, 1911.

Sections 1, 2, 3, 8 and 9.

Part IV

Act of the Oireachtas of Saorstat Éireann Number and Year Short Title Extent of Repeal

(1)

(2)

Air Navigation and Transport Act, 1936 .

Section 23.

Part V

Acts of the Oireachtas Number and Year Short Title Extent of Repeal

(1)

(2)

Tortfeasors Act, 1951 .

The whole Act.

No. 3 of 1956.

Fatal Injuries Act, 1956 .

The whole Act.

No. 6 of 1957.

Statute of Limitations, 1957 .

Subsection (3) of section 2, and subparagraph (iii) of paragraph (e) of subsection (1) and subsection (3) of section 11.

No. 1 of 1959.

Air Navigation and Transport Act, 1959 .

Section 4.

No. 24 of 1961.

Road Traffic Act, 1961 .

Subsection (4) of section 76 and sections 116 and 117.

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