Civil Liability Act , 1961

PART I Preliminary And General

1. Short title and collective citation.

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

(2)The Air Navigation and Transport Acts, 1936 to 1959, and Part VI of this Act may be cited together as the Air Navigation and Transport Acts, 1936 to 1961.

2. 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.

(2)Any reference in this Act to any other enactment shall be construed as a reference to that enactment as amended or applied by any subsequent enactment, including this Act.

3. 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.

4. 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.

(2)Nothing in this Act shall—

(a)render enforceable any agreement for indemnity which would not have been enforceable if this Act had not been passed, or

(b)affect the power of the court to stay proceedings that are an abuse of the process of the court.

5. 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

6. 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.

F1["Act of 2009" means the Defamation Act 2009;]

F1["aggravated damages" has the same meaning as it has in the Act of 2009;]

F1["punitive damages" has the same meaning as it has in the Act of 2009.]

7. 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.

F2[(1A) On the death of a person on or after the commencement ofsection 39(2) (a) of the Act of 2009, a cause of action for defamation vested in him immediately before his death shall survive for the benefit of his estate.]

(2)Where, by virtue of subsection (1) of this section, a cause of action survives for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person shall not include exemplary damages, or damages for any pain or suffering or personal injury or for loss or diminution of expectation of life or happiness.

F2[(2A) Where by virtue ofsubsection (1A)of this section, a cause of action for defamation survives for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person shall not include general damages, punitive damages or aggravated damages.]

(3)Where—

(a)a cause of action survives by virtue of subsection (1) of this section for the benefit of the estate of a deceased person, and

(b)the death of such person has been caused by the circumstances which gave rise to such cause of action,

the damages recoverable for the benefit of his estate shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included.

(4)The rights conferred by this section for the benefit of the estate of a deceased person are in addition to the rights conferred on the dependants of deceased persons by Part III of the Act of 1936 and Part IV of this Act.

8. 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.

F3[(1A) On the death of a person on or after the commencement ofsection 39(3) (a) of the Act of 2009 a cause of action subsisting against him shall survive against his estate.]

(2)Where damage has been suffered by reason of any act in respect of which a cause of action would have subsisted against any person if he had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of subsection (1) of this section, to have been subsisting against him before his death such cause of action in respect of that act as would have subsisted if he had died after the damage was suffered.

F3[(2A) Where by virtue ofsubsection (1A)of this section, a cause of action for defamation survives against the estate of a deceased person, the damages recoverable against the estate of that person shall not include general damages, punitive damages or aggravated damages.]

9. 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.

(2)No proceedings shall be maintainable in respect of any cause of action whatsoever which has survived against the estate of a deceased person unless either—

(a)proceedings against him in respect of that cause of action were commenced within the relevant period and were pending at the date of his death, or

(b)proceedings are commenced in respect of that cause of action within the relevant period or within the period of two years after his death, whichever period first expires.

10. 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

11. 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.

(2)Without prejudice to the generality of subsection (1) of this section—

(a)persons may become concurrent wrongdoers as a result of vicarious liability of one for another, breach of joint duty, conspiracy, concerted action to a common end or independent acts causing the same damage;

(b)the wrong on the part of one or both may be a tort, breach of contract or breach of trust, or any combination of them;

(c)it is immaterial whether the acts constituting concurrent wrongs are contemporaneous or successive.

(3)Where two or more persons are at fault and one or more of them is or are responsible for damage while the other or others is or are free from causal responsibility, but it is not possible to establish which is the case, such two or more persons shall be deemed to be concurrent wrongdoers in respect of the damage.

(4)F4[…]

(5)Where the same or substantially the same F5[defamatory statement] or injurious falsehood is published by different persons, the court shall take into consideration the extent to which it is probable that the statement in question was published directly or indirectly to the same persons, and to that extent may find the wrongdoers to be concurrent wrongdoers.

(6)For the purpose of any enactment referring to a specific tort, an action for a conspiracy to commit that tort shall be deemed to be an action for that tort.

F6[(7) In this section "defamatory statement" has the same meaning as it has in the Defamation Act 2009.]

12. 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.

(2)Where the acts of two or more persons who are not concurrent wrongdoers cause independent items of damage of the same kind to a third person or to one of their number, the court may apportion liability between such persons in such manner as may be justified by the probabilities of the case, or where the plaintiff is at fault may similarly reduce his damages; and if the proper proportions cannot be determined the damages may be apportioned or divided equally.

(3)Subsection (2) of this section shall apply to two or more persons whose acts taken together constitute a nuisance, even though the act of any one of them taken alone would not constitute a nuisance, not being unreasonable in degree.

13. 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.

14. 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.

(2)Subject to subsections (3) and (6) of this section and to sections 38 and 46, each of the said judgments shall be for the full amount of the plaintiff’s damages in respect of which the defendants are concurrent wrongdoers, together with any further damages in respect of which the particular defendant against whom judgment is given is individually liable and, if the same jury has in its verdict apportioned damages between the defendants on the basis that the total of the damages awarded is meant to be equivalent to the plaintiff’s loss resulting from the concurrent wrongs, the plaintiff shall be entitled to judgment against the defendants for the aggregate of such damages.

(3)The plaintiff may agree to accept an apportionment of his damages among the defendants according to their degrees of fault and, in this event, the following provisions shall take effect—

(a)satisfaction of one judgment shall not operate as satisfaction of the others;

(b)the defendants shall have no right of contribution among themselves;

(c)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.

(4)Where the court would be prepared to award punitive damages against one of concurrent tortfeasors, punitive damages shall not be awarded against another of such tortfeasors merely because he is a concurrent tortfeasor, but a judgment for an additional sum by way of punitive damages may be given against the first-mentioned tortfeasor.

(5)The judgment mentioned in subsection (4) of this section may specify that such additional sum is awarded by way of punitive damages, and no contribution shall be payable in respect thereof by a tortfeasor against whom such judgment could not properly have been given.

(6)Where, in F7[a defamation action under the Defamation Act 2009], one of concurrent tortfeasors would have been entitled to a mitigation of the damages payable by him had he been a single tortfeasor, but another of the said tortfeasors would not have been so entitled, the first-mentioned tortfeasor shall be entitled to the said mitigation of damages and shall not be compellable to make contribution except in respect of the amount of damages payable by him; and the judgment against him may be given accordingly.

15. 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.

(2)If the plaintiff fails against the defendants who appear for a reason that goes to the liability of all, the interlocutory judgment shall be discharged.

(3)If the plaintiff’s damages against the defendants who appear are reduced under subsection (1) of section 34 on account of the plaintiff’s contributory negligence, damages shall be assessed under the interlocutory judgment as if the defendant had appeared.

(4)This section shall not apply to any head of damage in respect of which the defendant who makes default and the defendants who appear are not concurrent wrongdoers.

16. 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.

(2)Satisfaction means payment of damages, whether after judgment or by way of accord and satisfaction, or the rendering of any agreed substitution therefor.

(3)If the payment is of damages, it must be of the full damages agreed by the injured person or adjudged by the court as the damages due to him in respect of the wrong; otherwise it shall operate only as partial satisfaction.

(4)An injured person who has accepted satisfaction from one alleged to be a wrongdoer, whether under a judgment or otherwise, shall, in any subsequent proceeding against another wrongdoer in respect of the same damage, be estopped from denying that the person who made the satisfaction was liable to him; and the liability of such person shall be conclusively assumed for the purpose of the said proceeding: but the injured person may litigate in the said proceeding any question of law or fact relative to the liability of the defendant to such proceeding, other than the question whether or not the said satisfaction was made by one liable to the injured person.

17. 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.

(2)If no such intention is indicated by such release or accord, the other wrongdoers shall not be discharged but the injured person shall be identified with the person with whom the release or accord is made in any action against the other wrongdoers in accordance with paragraph (h) of subsection (1) of section 35; and in any such action the claim against the other wrongdoers shall be reduced in the amount of the consideration paid for the release or accord, or in any amount by which the release or accord provides that the total claim shall be reduced, or to the extent that the wrongdoer with whom the release or accord was made would have been liable to contribute if the plaintiff’s total claim had been paid by the other wrongdoers, whichever of those three amounts is the greatest.

(3)For the purpose of this Part, the taking of money out of court that has been paid in by a defendant shall be deemed to be an accord and satisfaction with him.

18. 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;