Law Reform (Contributory Negligence) Act 1945

by the Parliament of the United Kingdom

Layout 2

CHAPTER 28

An Act to amend the law relating to contributory negligence and for purposes connected therewith.[15th June 1945.]

BE it enacted by the King’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Apportionment of liability in case of contributory negligence. 1.—(1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage:

Provided that—

(a) this subsection shall not operate to defeat any defence arising under a contract;

(b) where any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of this subsection shall not exceed the maximum limit so applicable.

(2) Where damages are recoverable by any person by virtue of the foregoing subsection subject to such reduction as is therein mentioned, the court shall find and record the total damages which would have been recoverable if the claimant had not been at fault.

(3) Section six of the 25 & 26 Geo. 5. c. 30.Law Reform (Married Women and Tortfeasors) Act, 1935 (which relates to proceedings against, and contribution between, joint and several tortfeasors), shall apply in any case where two or more persons are liable or would, if they had all been sued, be liable by virtue of subsection (1) of this section in respect of the damage suffered by any person.

(4) Where any person dies as the result partly of his own fault and partly of the fault of any other person or persons, and accordingly if an action were brought for the benefit of the estate under the 24 & 25 Geo. 5. c. 41.Law Reform (Miscellaneous Provisions) Act, 1934, the damages recoverable would be reduced under subsection (1) of this section, any damages recoverable in an action brought for the benefit of the dependants of that person under the Fatal Accidents Acts, 1846 to 1908, shall be reduced to a proportionate extent.

(5) Where, in any case to which subsection (1) of this section applies, one of the persons at fault avoids liability to any other such person or his personal representative by pleading the 2 & 3 Geo. 6. c. 21.Limitation Act, 1939, or any other enactment limiting the time within which proceedings may be taken, he shall not be entitled to recover any damages or contributions from that other person or representative by virtue of the said subsection.

(6) Where any case to which subsection (1) of this section applies is tried with a jury, the jury shall determine the total damages which would have been recoverable if the claimant had not been at fault and the extent to which those damages are to be reduced.

(7). Article 21 of the Convention contained in the First Schedule to the 22 & 23 Geo. 5. c. 36.Carriage by Air Act, 1932 (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 section.

Provisions as to workmen and employers. 2.—(1) Where, within the time limited for the taking of proceedings under the Workmen’s Compensation Acts, 1925 to 1943, an action is brought to recover damages independently of the said Acts in respect of an injury or disease giving rise to a claim for compensation under the said Acts, and it is determined in that action that—

(a) damages are recoverable independently of the said Acts subject to such reduction as is mentioned in subsection (1) of the foregoing section of this Act; and

(b) the employer would have been liable to pay compensation under the Workmen’s Compensation Acts, 1925 to 1943;

subsection (2) of section twenty-nine of the 15 & 16 Geo. 5. c. 84.Workmen’s Compensation Act, 1925, (which enables the court, on the dismissal of an action to recover damages independently of the said Acts, to assess and award compensation under the said Acts) shall apply in all respects as if the action had been dismissed, and, if the claimant chooses to have compensation assessed and awarded in accordance with the said subsection (2), no damages shall be recoverable in the said action.

This subsection shall apply, with the necessary adaptations, in any case where compensation is recoverable under a scheme certified or made under the Workmen’s Compensation Acts, 1925 to 1943, or under the Workmen’s Compensation and Benefit (Byssinosis) Act, 1940, if the scheme applies section twenty-nine of the Workmen’s Compensation Act, 1925, or contains any provision similar to that section.

(2) Where a workman or his personal representative or dependant has recovered compensation under the Workmen’s Compensation Acts, 1925 to 1943, or under any scheme certified under the Workmen’s Compensation Act, 1925, in respect of an injury caused under circumstances which would give a right to recover reduced damages in respect thereof by virtue of section one of this Act from some person other than the employer (hereinafter referred to as “the third party”), any right conferred by section thirty of the Workmen’s Compensation Act, 1925, on the person by whom the compensation was paid, or on any person called on to pay an indemnity under section six of that Act, to be indemnified by the third party shall be limited to a right to be indemnified in respect of such part only of the sum paid or payable by the said person as bears to the total sum so paid or payable the same proportion as the said reduced damages bear to the total damages which would have been recoverable if the workman had not been at fault.

Saving for Maritime Conventions Act, 1911, and past cases.
1 & 2 Geo. 5. c. 57. 3.—(1) This Act shall not apply to any claim to which section one of the Maritime Conventions Act, 1911, applies and that Act shall have effect as if this Act had not passed.

(2) This Act shall not apply to any case where the acts or omissions giving rise to the claim occurred before the passing of this Act.

Interpretation. 4. The following expressions have the meanings hereby respectively assigned to them, that is to say—

“court” means, in relation to any claim, the court or arbitrator by or before whom the claim falls to be determined;

“damage” includes loss of life and personal injury;

“dependant” means any person for whose benefit an action could be brought under the Fatal Accidents Acts, 1846 to 1908;

“employer” and “workman” have the same meaning as in the Workmen’s Compensation Act, 1925, as amended by any subsequent enactment;

“fault" means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence;

Application to Scotland. 5. In the application of this Act to Scotland—

(a) the expression “dependant” means, in relation to any person, any person who would in the event of such first mentioned person’s death through the fault of a third party be entitled to sue that third party for damages or solatium; and the expression “fault” means wrongful act, breach of statutory duty or negligent act or omission which gives rise to liability in damages, or would apart from this Act, give rise to the defence of contributory negligence;

(b) for any reference to section six of the Law Reform (Married Women and Tortfeasors) Act, 1935, there shall be substituted a reference to section three of the 3 & 4 Geo. 6. c. 42.Law Reform (Miscellaneous Provisions) (Scotland) Act, 1940 (which relates to contribution among joint wrongdoers);

(c) for subsection (4) of section one the following subsection shall be substituted—

(4) Where any person dies as the result partly of his own fault and partly of the fault of any other person or persons, a claim by any dependant of the first mentioned person for damages or solatium in respect of that person’s death shall not be defeated by reason of his fault, but the damages or solatium recoverable shall be reduced to such extent as the court thinks just and equitable having regard to the share of the said person in the responsibility for his death.

Provisions as to Northern Ireland. 6.—(1) If the Parliament of Northern Ireland pass an Act similar to the provisions of this Act, Article 21 of the Convention contained in the First Schedule to the Carriage by Air Act, 1932, shall have effect as respects courts in Northern Ireland, subject to the provisions of the said Act of the Parliament of Northern Ireland,

(2) This Act, except the provisions of the last foregoing sub- section, shall not extend to Northern Ireland.

Short title and extent. 7. This Act may be cited as the Law Reform (Contributory Negligence) Act, 1945.