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.—(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.—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.—(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.—(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.—(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.—(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.—(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.

(2) The reference in this section to “the judgment first given” shall, in a case where that judgment is reversed on appeal, be construed as a reference to the judgment first given which is not so reversed and, in a case where a judgment is varied on appeal, be construed as a reference to that judgment as so varied.

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.

(2) (a) For the purpose of subsection (1) of this section, where judgment is given for the said defendant on the ground of the injured person’s discontinuance, the injured person shall be bound by the allegations and denials in the said defendant’s defence as if they had been found in favour of the said defendant, so far as they are relevant to the defence of that defendant.

(b) Paragraph (a) of this subsection shall not apply unless, on the facts, the injured person is barred by his discontinuance from bringing a second action against the said defendant.

(3) Where an action is brought against concurrent wrongdoers and judgment is given against one and for another for a reason that goes to the liability of all, the first-mentioned judgment shall be discharged.

(4) Where an action is brought against concurrent wrongdoers and judgment is given against one without reduction of damages and against another subject to a reduction of damages under subsection (1) of section 34 on account of the plaintiff’s contributory negligence, the damages under the first-mentioned judgment shall be assessed subject to the same proportionate reduction, and the provisions of section 38 shall apply.

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.

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.

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.

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.

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.

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.

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.

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.]

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.

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.

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.

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.

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.

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.

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.

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.

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.

(2) This section shall apply notwithstanding that one party is a bankrupt or (where a personal representative is party to an action) that the estate administered by him is insolvent.

(3) This section, and also section 251 of the Irish Bankrupt and Insolvent Act, 1857, in so far as it applies to a set-off of judgment debts owing by and to a bankrupt, shall operate only in relation to the satisfaction of debts, and, for all purposes (including the construction of policies of insurance) other than that aforesaid, a judgment shall be treated as creating a debt, duty, obligation and liability for the full amount of the judgment as if there were no set-off, and for such other purposes a debt (whether by judgment or otherwise) shall be deemed to be paid by the judgment debtor to the extent of a debt set off against it.

(4) Notwithstanding anything in section 62, where a claim is made against a person who is insured in respect of a liability alleged in that claim and the claim is paid by the insurer with a deduction in respect of a sum owed to the insured by the person making such claim, the insured or any person representing or deriving title under him shall be entitled to recover from the insurers the amount of the said deduction.

F10[(5) Notwithstanding anything in section 62, where a claim is made against a person who is insured in respect of a liability alleged in that claim and the claim is not paid by the insurer by reason of its being set off in full against a sum owed to the insured by the person making such claim, the insured or any person representing or deriving title under him shall be entitled to recover from the insurers the amount of such claim.]

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.

(2) Subsection (1) of this section shall apply between two parties notwithstanding that one of them is party to the two actions in different capacities.

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.

(2) 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.

(3) This section shall not apply where one of the defendant wrongdoers is responsible for the acts of another; such wrongdoers shall, subject to subsection (1) of section 34, be liable to the plaintiff for a single portion of his damages.

(4) After judgment has been given in accordance with subsection (1) of this section, the plaintiff shall not be entitled to bring a second or subsequent action against a concurrent wrongdoer against whom judgment has not been given, unless he satisfies the court in such action that it was not reasonably possible for him to join such wrongdoer as co-defendant in the first action.

(5) The plaintiff, when commencing such second or subsequent action, shall be under a duty to the wrongdoers already successfully sued who have a right of contribution against the wrongdoer now sued or proposed to be sued to take reasonable steps to notify them of such second or subsequent action at least fourteen days before the institution of proceedings in such action or as soon as is reasonably possible after the commencement of such period.

(6) A wrongdoer receiving such notice shall have the right to become co-plaintiff in the action if the proceedings have not been instituted and otherwise to apply to the court for leave to be joined as co-plaintiff or for consolidation of actions; and a wrongdoer who unreasonably fails to take any of those steps as aforesaid shall be barred from his right of contribution.

(7) If the plaintiff is successful in such second or subsequent action, he shall be entitled to the difference between the total of the damages awarded to him in the previous judgment or judgments and the total of damages that in the view of the court would have been awarded if the said wrongdoer had been joined with the previous defendant or defendants as co-defendant in the earlier action or actions; and he shall be entitled in addition to the provision mentioned in subsection (2) of this section: provided that—

(a) nothing in this subsection shall entitle a plaintiff to recover from such wrongdoer more than he could have recovered had he not brought such previous action or actions;

(b) nothing in this subsection shall preclude such wrongdoer from disputing any issue that he is otherwise entitled to dispute and, if the plaintiff’s damages are found to be less than they were held to be by the court in the earlier action or actions, such wrongdoer shall not be liable for more than his due proportion as between himself, the plaintiff and the previous defendant or defendants of the damages so found;

(c) such wrongdoer may at his option avail himself of any matter decided against the plaintiff in such previous action or actions as though such matter were res judicata between them.

(8) Where damages are awarded against a wrongdoer in accordance with the provisions of this section, such wrongdoer may recover contribution from any other wrongdoer not sued at the same time where such recovery is just and equitable subject to the provisions of Chapter II of this Part.

(9) A wrongdoer, when commencing such action for contribution, shall be under a duty to the injured person who has a right of action against the contributor and to the other wrongdoers already successfully sued by the injured person who have a right of contribution against the contributor to take reasonable steps to notify them of such action for contribution at least fourteen days before the institution of proceedings in such action or as soon as is reasonably possible after the commencement of such period.

(10) The injured person or a wrongdoer receiving such notice shall have the rights specified in subsection (6) of this section, and if he unreasonably fails to take advantage of his rights he shall be barred from his right of action for damages or for contribution as the case may be.

(11) Where the injured person brings a second or subsequent action in accordance with the provisions of this section, and where a wrongdoer brings an action for contribution as provided in subsection (8) of this section, the parties to the action shall be bound by the apportionment of fault made in the earlier action or actions: but the defendant shall not be bound by such apportionment if provision comes to be made for distributing any deficiency caused by the failure to obtain satisfaction of any judgment in whole or in part from one of the wrongdoers already sued.

(12) Where—

(a) the plaintiff sues one wrongdoer and either because he obtains judgment by default or because the court negatives contributory negligence the plaintiff recovers judgment in respect of the whole of his damages against such wrongdoer, and

(b) the plaintiff subsequently sues another wrongdoer who is held to have been a concurrent wrongdoer with the first, the plaintiff also being held to have been guilty of contributory negligence as regards both wrongdoers,

the defendant secondly sued shall be entitled to credit for the same proportion of the sum received from the defendant first sued as the proportion of the damage adjudged to be borne by the plaintiff as between himself and the defendant secondly sued, and in the event of overpayment shall be entitled to repayment.

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.

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) F11[…]

(2) It shall be the duty of the judge or arbitrator to make the requisite calculations following upon such findings.

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.

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.

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.

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.

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.

(2) Where, as a result of the failure to obtain satisfaction of any judgment in whole or in part from one wrongdoer, other concurrent wrongdoers are compelled to bear a larger part of the plaintiff’s damage than they would otherwise have borne, or are compelled to pay a larger sum by way of contribution than they would otherwise have paid, they shall have a right of recoupment against such wrongdoer to the extent of the difference.

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.

(2) Where, by the sole or concurrent fault of a vessel damage is caused to that or another vessel or to the cargo or any property on board either vessel, or loss of life or personal injury is suffered by any person on board either vessel, then, subject to subsection (3) of this section, no action shall be maintainable to enforce a claim for damages or lien in respect of such damage, loss of life or injury unless proceedings are commenced within two years from the date when such damage, loss of life or injury was caused; and an action shall not be maintainable to enforce any claim for contribution in respect of an overpaid proportion of any damages for loss of life or personal injuries unless proceedings are commenced within one year from the date of payment.

(3) Any court having jurisdiction to deal with an action to which subsection (2) of this section relates may, subject to any rules of court, extend the period referred to in that subsection to such extent and subject to such conditions as it thinks fit, and shall, if satisfied that there has not during such period been any reasonable opportunity of arresting the defendant vessel within the jurisdiction of the court or within the territorial waters of the country to which the plaintiff’s vessel belongs or in which the plaintiff resides or has his principal place of business, extend any such period to an extent sufficient to give such reasonable opportunity.

(4) For the purposes of subsections (1) and (2) of this section, references to damage caused by the fault of a vessel shall be construed as including references to any salvage or other expenses, consequent upon that fault, recoverable at law by way of damages and such expenses shall be deemed to be a damage caused when they are incurred.

(5) The provisions of this section shall be applied in all cases heard and determined in any court having jurisdiction to deal with the case and in whatever waters the damage in question was caused or the salvage services or other expenses in question were rendered or incurred.

(6) This section shall be construed as one with the Merchant Shipping Acts, 1894 to 1952.