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IMEACHTA AN CHOISTE.THE PROCEEDINGS OF THE COMMITTEE.Dé Máirt, 4 Iúil, 1961.Tuesday, 4th July, 1961.1. The Committee met at 8 p.m. 2. Members Present. The following members were present: Deputy Seán Flanagan (in the Chair), the Parliamentary Secretary to the Minister for Justice, Deputies Booth, Seán Browne, John A. Costello, Lindsay, McGilligan and Thomas F. O’Higgins. 3. Consideration of Bill. The Committee resumed consideration of the Bill. (i) Section 34. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “In subsection (1), page 16, line 33, to delete ‘or caution’.” Amendment agreed to. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “In subsection (1), page 16, line 37, to delete ‘the shares of’ and substitute ‘the degrees of fault of’.” Amendment agreed to. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “In subsection (1), page 16, before paragraph (a), to insert the following new paragraph: ‘(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,’.” Amendment agreed to. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “In subsection (2), page 16, line 55, to delete ‘party’ and substitute ‘person’.” Amendment agreed to. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “In subsection (2), to delete paragraph (b).” Amendment agreed to. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “In subsection (2), page 17, before paragraph (c), to insert the following new paragraph: ‘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;”’ Amendment agreed to. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “In subsection (2), paragraph (f), page 17, to delete from ‘shall not exclude’ to the end of the paragraph and substitute ‘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’.” Amendment agreed to. Section, as amended, agreed to. (ii) Sections 35 and 36 agreed to. (iii) Section 37. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “In subsection (1), page 19, line 51, before ‘on account’ to insert ‘under subsection (1) of section 34’.” Amendment agreed to. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “To delete subsection (2).” Amendment agreed to. Section, as amended, agreed to. (iv) Section 38. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “In subsection (1), page 20, line 2, to delete ‘party’ and substitute ‘person’.” Amendment agreed to. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “In subsection (1), page 20, line 5, before ‘having regard’ to insert ‘under subsection (1) of section 34’.” Amendment agreed to. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “In page 20, to delete subsection (2) and substitute the following subsection: ‘(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’.” Amendment agreed to. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “In subsections (9), (10) and (11), page 21, lines 15, 17, 22 and 27, to delete ‘party’ and ubstitutes ‘person’.” Amendment agreed to. Section, as amended, agreed to. (v) Section 39. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “In page 21, line 54, to delete ‘party’ and substitute ‘person’.” Amendment agreed to. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “In page 21, line 55, to delete ‘parties’ and substitute ‘persons’.” Amendment agreed to. Section, as amended, agreed to. (vi) Sections 40, 41 and 42 agreed to. (vii) Section 43. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “In page 22, line 27, before ‘for’ to insert ‘under subsection (1) of section 34’.” Amendment agreed to. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “In page 22, lines 28 and 31, to delete ‘party’ and substitute ‘person’.” Amendment agreed to. Section, as amended, agreed to. (viii) Section 44 agreed to. (ix) Section 45 deleted. (x) Section 46 agreed to. (xi) New section. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “Before section 47, to insert the following new section:— ‘(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) 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 another vessel or to the cargo or any property on board, or loss of life or personal injury is suffered by any person on board such other 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 in question were rendered. (6) This section shall be construed as one with the Merchant Shipping Acts, 1894 to 1952’.” Question:—“That the new section be there inserted”—put, and agreed to. (xii) Section 47 deleted. (xiii) Sections 48 and 49 agreed to. (xiv) Section 50. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “In subsection (1), page 23, line 58, to delete ‘neglect or default,’.” Amendment agreed to. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “In subsection (1), page 23, line 59, to delete ‘loss’ and substitute ‘injury or mental distress’.” Amendment agreed to. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “In subsection (1), page 24, line 5, to delete‘, neglect or default’.” Amendment agreed to. Section, as amended, agreed to. (xv) Section 51. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “In subsection (1), page 24, line 17, to delete ‘,neglect or default’.” Amendment agreed to. Section, as amended, agreed to. (xvi) New section. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “Before section 52, to insert the following new section: ‘(1) (a) The damages under section 51 shall be— (i) the total of such amounts (if any) as the jury or the judge, as the case may be, shall consider proportioned to the injury resulting from the death to each of the dependants, respectively, for whom or on whose behalf the action is brought, and (ii) subject to paragraph (b) of this subsection, the total of such amounts (if any) as the judge shall consider reasonable compensation for mental distress resulting from the death to each of such dependants. (b) The total of any amounts awarded by virtue of subparagraph (ii) of paragraph (a) of this subsection shall not exceed one thousand pounds. (c) Each amount awarded by virtue of paragraph (a) of this subsection shall be indicated separately in the award. (d) Subparagraph (ii) of paragraph (a) of this subsection shall have effect only in respect of a death occurring within three years after the date of the passing of this Act. (2) In addition, damages may be awarded in respect of funeral and other expenses actually incurred by the deceased, the dependants or the personal representative by reason of the wrongful act. (3) It shall be sufficient for a defendant, in paying money into court in the action, to pay it in one sum as damages for all the dependants without apportioning it between them. (4) The amount recovered in the action shall, after deducting the costs not recovered from the defendant, be divided among the persons entitled in such shares as may have been determined’.” Question:—“That the new section be there inserted”—put, and agreed to. (xvii) Section 52 deleted. (xviii) Section 53 agreed to. (xix) Section 54. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “In subsection (4), page 25, line 22, to delete ‘loss caused by’.” Amendment agreed to. Section, as amended, agreed to. (xx) Sections 55 to 58 inclusive, agreed to. (xxi) Section 59. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “In page 28, to delete paragraph (f), lines 1 to 17, and substitute the following paragraphs:— ‘(f) subject to paragraph (j) of this subsection— (i) the damages shall be the total of such amounts (if any) as the jury or the judge, as the case may be, shall consider proportioned to the injury resulting from the death to each of the dependants, respectively, for whom or on whose behalf the action is brought, and (ii) subject to paragraph (g) of this subsection, the total of such amounts (if any) as the judge shall consider reasonable compensation for mental distress resulting from the death to each of such dependants; (g) the total of any amounts awarded by virtue of subparagraph h (ii) of paragraph (f) of this subsection shall not exceed one thousand pounds; (h) each amount awarded by virtue of paragraph (f) of this subsection shall be indicated separately in the award; (i) subparagraph (ii) of paragraph (f) of this subsection shall have effect only in respect of a death occurring within three years after the date of the passing of the Civil Liability Act, 1961; (j) in addition, damages may be awarded in respect of funeral and other expenses actually incurred by the passenger, the dependants or the personal representative as a result of the accident which caused the death of the passenger;’.” Amendment agreed to. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “In page 28, paragraph (g), line 20, to delete ‘compensation’ and substitute ‘damages’.” Amendment agreed to. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “In page 28, paragraph (j), lines 40 to 43, to delete‘, as amended by the provisions of the Schedule to the Air Navigation and Transport Act, 1959,’.” Amendment agreed to. Section, as amended, agreed to. (xxii) New sections. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “Before the Schedule, to insert a new section as follows:— ‘PART VII Miscellaneous For the purposes of subsection (1) of section 34 and subsection (1) of section 47, the fact that any person— (a) had an opportunity of avoiding the consequences of the act of any other person but negligently or carelessly failed to do so, or (b) might have avoided those consequences by the exercise of care, or (c) might have avoided those consequences but for previous negligence or want of care on his part, shall not, by itself, be a ground for holding that the damage was not caused by the act of such other person’.” Question:—“That the new section be there inserted”—put, and agreed to. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “Before the Schedule, to insert a new section as follows:— ‘(1) It shall not be a defence in an action of tort merely to show that the plaintiff is in breach of the civil or criminal law. (2) It shall not be a defence in an action for breach of statutory duty merely to show that the defendant delegated the performance of the duty to the plaintiff’.” Question:—“That the new section be there inserted”—put, and agreed to. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “Before the Schedule, to insert a new section as follows:— ‘For the avoidance of doubt it is hereby declared that the law relating to wrongs shall apply to an unborn child for his protection in like manner as if the child were born, provided the child is subsequently born alive’.” Question:—“That the new section be there inserted”—put, and agreed to. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “Before the Schedule, to insert a new section as follows:— ‘(1) A road authority shall be liable for damage caused as a result of their failure to maintain adequately a public road. (2) In proceedings under this section, it shall be a defence for the road authority to prove that they— (a) had given sufficient warning that the road was a danger to traffic, or (b) had taken reasonable precautions to secure that the road was not a danger to traffic, or (c) had not a reasonable opportunity to give such warning or take such precautions. (3) In determining whether a road was adequately maintained, regard shall be had in particular to— (a) the construction of the road and the standard of maintenance appropriate to a road of such construction, (b) the traffic using the road, (c) the condition in which a reasonable person would have expected to find the road. (4) In determining whether a road authority had a reasonable opportunity to give warning that a road was a danger to traffic or had taken reasonable precautions to secure that a road was not such a danger, regard shall be had to the standard of supervision reasonable for a road of such character. (5) In this section,— “road authority” means the council of a county, the corporation of a county or other borough and the council of an urban district; “public road” means a road the responsibility for the maintenance of which lies on a road authority and includes any bridge, pipe, arch, gulley, footway, pavement, fence, railing or wall which forms part of such road and which it is the responsibility of the road authority to maintain. (6) This section shall not apply to damage arising from an event which occurred before the coming into operation of this section. (7) This section shall come into operation on such day, not earlier than the 1st day of April, 1967, as may be fixed therefor by order made by the Government’.” Question:—“That the new section be there inserted”—put, and agreed to. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “Before the Schedule, to insert a new section as follows:— ‘Where a person (hereinafter referred to as the insured) who has effected a policy of insurance in respect of liability for a wrong, if an individual, becomes bankrupt or insolvent or dies or, if a corporate body, is wound up or, if a partnership or other unincorporated association, is dissolved, moneys payable to the insured under the policy shall be applicable only to discharging in full all valid claims against the insured in respect of which those moneys are payable, and no part of those moneys shall be assets of the insured or applicable to the payment of the debts (other than those claims) of the insured in the bankruptcy or insolvency or in the administration of the estate of the insured or in the winding-up or dissolution, and no such claim shall be provable in the bankruptcy, insolvency, administration, winding-up or dissolution’.” Question:—“That the new section be there inserted”—put, and agreed to. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “Before the Schedule, to insert a new section as follows:— ‘(1) Where, in an action for a wrong in which the plaintiff is an infant— (a) a sum of money has been lodged in court by the defendant, and (b) an application is made to the judge by the plaintiff to decide whether that sum of money should be accepted or the action should go to trial, and (c) the judge decides that the action should go to trial, and (d) an amount by way of damages is awarded to the plaintiff by the court which does not exceed the sum so lodged, then, notwithstanding any rule of court or practice to the contrary, the costs in the action shall be at the discretion of the judge. (2) An appeal shall lie from the order of the judge in relation to the costs in such action’.” Question:—“That the new section be there inserted”—put, and agreed to. (xxiii) Schedule. Amendment proposed (Parliamentary Secretary to the Minister for Justice): “In Part III, column (3), to delete ‘Sections 1, 2 and 3’ and substitute ‘Sections 1, 2, 3, 8 and subsections (1), (2) and (3) of section 9’.” Amendment agreed to. Schedule, as amended, agreed to. (xxiv) Title agreed to. 4. Report of Committee. The Chairman brought forward a Draft Report which was read as follows:— “The Special Committee has gone through the Bill and has made amendments thereunto. The Bill, as amended, is reported to the Dáil.” Draft Report agreed to. Ordered: To report accordingly. 5. Conclusion of Business. The Committee concluded its business at 9.30 p.m. |
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