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.