Civil Liability Act 1961

Identification.

35

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.