Civil Liability Act 1961
Apportionment of liability in case of contributory negligence.
34.—(1) Where, in any action brought by one person in respect of a wrong committed by any other person, it is proved that the damage suffered by the plaintiff was caused partly by the negligence or want of care of the plaintiff or of one for whose acts he is responsible (in this Part called contributory negligence) and partly by the wrong of the defendant, the damages recoverable in respect of the said wrong shall be reduced by such amount as the court thinks just and equitable having regard to the degrees of fault of the plaintiff and defendant: provided that—
(a) if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally;
(b) this subsection shall not operate to defeat any defence arising under a contract or the defence that the plaintiff before the act complained of agreed to waive his legal rights in respect of it, whether or not for value; but, subject as aforesaid, the provisions of this subsection shall apply notwithstanding that the defendant might, apart from this subsection, have the defence of voluntary assumption of risk;
(c) where any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages awarded to the plaintiff by virtue of this subsection shall not exceed the maximum limit so applicable.
(2) For the purpose of subsection (1) of this section—
(a) damage suffered by the plaintiff may include damages paid by the plaintiff to a third person who has suffered damage owing to the concurrent wrongs of the plaintiff and the defendant, and the period of limitation for claiming such damages shall be the same as is provided by section 31 for actions for contribution;
(b) a negligent or careless failure to mitigate damage shall be deemed to be contributory negligence in respect of the amount by which such damage exceeds the damage that would otherwise have occurred;
(c) the plaintiff’s failure to exercise reasonable care for his own protection shall not amount to contributory negligence in respect of damage unless that damage results from the particular risk to which his conduct has exposed him, and the plaintiff’s breach of statutory duty shall not amount to contributory negligence unless the damage of which he complains is damage that the statute was designed to prevent;
(d) the plaintiff’s failure to exercise reasonable care in the protection of his own property shall, except to the extent that the defendant has been unjustly enriched, be deemed to be contributory negligence in an action for conversion of the property;
(e) damage may be held to be caused by the wrong of the defendant notwithstanding any rule of law by which the scope of the defendant’s duty is limited to cases where the plaintiff has not been guilty of contributory negligence: but this paragraph shall not render the defendant liable for any damage in respect of which he or a person for whose acts he is responsible has not been careless in fact;
(f) where an action is brought for negligence in respect of a thing that has caused damage, the fact that there was a reasonable possibility or probability of examination after the thing had left the hands of the defendant shall not, by itself, exclude the defendant’s duty, but may be taken as evidence that he was not in the circumstances negligent in parting with the thing in its dangerous state.
(3) Article 21 of the Warsaw Convention (which empowers a court to exonerate wholly or partly a carrier who proves that the damage was caused by or contributed to by the negligence of the injured person) shall have effect subject to the provisions of this Part.
Modifications (not altering text):
Application of subs. (1)(b) restricted by Occupiers’ Liability Act 1995 (10/1995), s. 5A, as inserted (31.07.2023) by Courts and Civil Law (Miscellaneous Provisions) Act 2023 (18/2023), s. 42, S.I. No. 389 of 2023, art. 3(f).
[Voluntary assumption of risk
5A. (1) The common duty of care under section 3 shall not impose on an occupier any obligation to a visitor in respect of risks willingly accepted by the visitor where that visitor is capable of comprehending the nature and extent of those risks.
(2) An occupier shall not owe any duty pursuant to section 4(4) to a recreational user of the premises in respect of risks willingly accepted by the recreational user where the recreational user is capable of comprehending the nature and extent of those risks.
(4) Section 34 (1)(b) of the Civil Liability Act 1961 shall not apply in relation to the making of a determination under subsection (1) or (2) that a visitor or recreational user has willingly accepted a risk.]