I move amendment No. 65 :
In subsection (1), page 16, line 33, to delete " or caution ".
This amendment proposes to delete the words " or caution ". I think that it is generally agreed that it is better to delete these words. The words " negligence " and " want of care " are sufficient. Negligence is a breach of duty. However, there is strictly no legal duty to take care of oneself or one's property. Hence the use of the expression " want of care " and later on " careless ".
There seems to be general agreement to delete " caution ".
I move amendment No. 66 :
In subsection (1), page 16, line 37, to delete " the shares of " and substitute " the degrees of fault of ".
May I also refer to amendments Nos. 67, 68 and 71 as well. The first amendment, No. 66, proposes to substitute " the degree of fault " for " the share of ". We think it better to bring in the idea of fault specifically. The word " fault " is used, for instance, in section 47 dealing with maritime cases.
The idea of the second amendment, No. 67, also comes from section 47 and the Maritime Conventions Act, 1911. It is designed to ensure that, if it is not possible to establish the degree of fault, the liability shall be apportioned equally.
The third amendment, No. 68, proposes to substitute " person " for " party ".
The fourth amendment, No. 71, is designed to make the meaning of paragraph (f) of subsection (2) perfectly clear. In certain circumstances, a manufacturer might reasonably expect examination, but he would have allowed the article to leave his hands in such a dangerous state that there must be some negligence on his part. The paragraph as amended will codify what seems to be the existing law in so far as it can be deduced from the various cases. In any event, it is a reasonable provision.
I move amendment No. 67 :
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 ; ".
I move amendment No. 68 :
In subsection (2), page 16, line 55, to delete " party " and substitute " person ".
I move amendment No. 69 :
In subsection (2), to delete paragraph (b).
It is proposed to deal with the abolition of the last opportunity rule in a separate section so as to cover both collisions on land and collisions at sea. A new section is proposed in a later amendment. The provisions of the new section will apply both to cases under section 34 (1) and to cases under section 47.
I move amendment No. 70 :
In subsection (2), page 17, before paragraph (e), 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 ; ".
This amendment proposes to deal with conversion cases. At common law, contributory negligence is not a defence to an action for conversion. This means that a person is not bound to look after his own property as other people are expected to look after it for him. The law leads to injustice in the case of a bona fide purchaser. It is proposed to provide for contributory negligence by an owner, except where the defendant has unjustly enriched himself, as where, for instance, he is a thief and has therefore no merits. The provision proposed in the amendment will allow for apportionment in conversion cases and thus remove any doubt as to the position under section 34 (1) where in an action for conversion there has been contributory negligence on the part of the plaintiff.
This will become the new paragraph (e), subsection (2).
I am not objecting to it.
This applies to conversion of a man's property and if you leave out this phrase of " unjustly enriched himself " then it will read :—
" the plaintiff's failure to exercise reasonable care in the protection of his own property shall be deemed to be contributory negligence in an action for conversion of the property ".
It seems to be proper enough.
If we leave out the unjust enrichment exception it would bring in the thief and the thief—the man who stole your watch—could rely on contributory negligence by the owner.
When my property has been converted, because I failed reasonably to protect my property, that is contributory negligence based on my negligence. The proposed new paragraph goes on to say " that if the defendant has unjustly enriched himself ". If that is accepted then the defence goes completely.
If you like to leave it, I will think about it again.
Who is the defendant in the action, not the thief but the holder, the person who has possession.
This seems to imply the person who has possession intentionally or——
No. Somebody steals my property and sells it to a person who has no suspicion of any theft. I take action against the purchaser and his answer is " you left your property without protection and you were guilty of contributory negligence ".
There is the case of a man who negligently signs a transfer of shares. They are sold to a third party. Then that third party is sued and he has to hand back the shares. There is, under existing law, no defence for the owner's negligence. I think we should leave this over for further consideration.
The phrase " unjustly enriched " seems to go against the whole conception of bona fide transfer where the purchaser has bought goods and paid a proper price for them. How can you say that man has been unjustly enriched ?
No, we want to provide for the innocent purchaser but to exclude the thief. May I suggest that the Committee accept the amendment and, if, on reconsideration, anybody has any doubt, then on the Report Stage in the Dáil, he can have the matter reconsidered.
I move amendment No. 71 :
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."
I have already dealt with this amendment.
