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Law Reform (Contributory Negligence and Tortfeasors) Act

LAWS OF FIJI

CHAPTER 30

LAW REFORM (CONTRIBUTORY NEGLIGENCE
AND TORTFEASORS) ACT

Ordinance Nos. 7 of 1946, 37 of 1966

AN ACT TO AMEND THE LAW RELATING TO CONTRIBUTORY NEGLIGENCE AND FOR PURPOSES CONNECTED THEREWITH; AND TO AMEND THE LAW RELATING TO PROCEEDINGS AGAINST, AND CONTRIBUTION BETWEEN TORTFEASORS

[1^st August, 1946]

Short title

1. This Act may be cited as the Law Reform (Contributory Negligence and Tortfeasors) Act.

PART I-CONTRIBUTORY NEGLIGENCE

Interpretation

2. In this Act unless the context otherwise requires-

"court" means, in relation to any claim, the court or arbitrator by or before whom the claim (ails to be determined;

"damage" include loss of life and personal injury;

"dependant" means any person for whose benefit an action could be brought under the Compensation to Relatives Act;

(Cap. 29)

"employer" and "workman" have the same meaning as in the Workmen's Compensation Act;

(Cap. 94)

"fault" means negligence, breach o f 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.

Appointment of liability in case of contributory negligence

3.-(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 provisions of subsection (1) 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 6 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) in respect of the damage differed 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 Law Reform (Miscellaneous Provisions) (Death and Interest) Act 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 Compensation to Relatives Act shall be reduced to a proportionate extent.
(Cap. 27) (Cap. 29)

(5) Where, in any case to which subsection (1) applies, one of the persons at fault avoids liability to any other such person or his personal representative by pleading any 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.

Carriage by Air Act, 1932

(6) Article 21 of the Convention contained in the First Schedule to the 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.
(Section amended by 37 of 1966, s.8)

Provision as to workmen and employers

4. -(1) Where within the time limited for the taking of proceedings under the Workmen's Compensation Act an action is brought to recover damages independently of the said Act in respect of an injury or disease giving rise to a claim for compensation under the said Act and it is determined in that action that-

(a) damages are recoverable independently of the said Act subject to such reduction as is mentioned in subsection (1) of section 3; and

(b) the employer would have been liable to pay compensation under the Workmen's Compensation Act;

subsection (2) of section 25 of the Workmen's Compensation Act (which enables the court, on the dismissal of an action to recover damages independently of the said Act, to assess and award compensation under the said Act) 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.
(Cap. 94)

(2) Where a workman or his personal representative or dependant has recovered compensation under the Workmen's Compensation Act in respect of an injury caused under circumstances which would give a right to receive reduced damages in respect thereof by virtue of sect ion 3 of this Act from some person other than the employer (hereinafter referred to as "the third party"), any right conferred by section 24 of the Workmen's Compensation Act on the person by whom the compensation was paid, or on any person called on to pay an indemnity under section 23 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.
(Cap. 94)

Saving for Maritime Conventions Act, 1911, and past cases

5. This Part shall not apply-

(a) to any claim to which section I of the Maritime Conventions Act, 1911 of the United Kingdom applies and that Act shall have effect as if this Act had not been passed; or

(b) to any case where the acts or omissions giving rise to the claim occurred before the commencement of this Act.

PART II-PROCEEDINGS AGAINST, AND CONTRIBUTION BETWEEN, TORTFEASORS

Proceedings against, and contribution between, joint and several tortfeasors

6.-(1) Where damage is suffered by any person as a result of a tort (whether a crime or not)-

(a) Judgment recovered against any tortfeasor 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 a joint tortfeasor 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 the estate, or of the wife, husband, parent or child of that person, against tortfeasor's liable in respect of the damage (whether as joint tortfeasors or otherwise) 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;

(c) any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section 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 section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage; 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 person shall amount to a complete indemnity.

(3) For the purposes of this section-

(a) the expressions ''parent" and "child" have the same meanings as they have for the purposes of the Compensation to Relatives Act; and

(Cap. 29)

(b) 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.

(4) Nothing in this section shall-

(a) affect any criminal proceedings against any person in respect of any wrongful act; or

(b) render enforceable any agreement for indemnity which would not have been enforceable if this section had not been passed.

Controlled by Ministry of the Attorney-General

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