Part 7Contributory negligence

Part 7—Contributory negligence 44—Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether a person who suffered harm (the plaintiff) has been contributorily negligent. (2) This section is not to derogate from any provision of this Act for reduction of damages on account of contributory negligence. 45—Contributory negligence in cases brought on behalf of dependants of deceased person In a claim for damages brought on behalf of the dependants of a deceased person, the court is to have regard to any contributory negligence on the part of the deceased person. 46—Presumption of contributory negligence where injured person intoxicated (1) If the injured person was intoxicated at the time of the accident, and contributory negligence is alleged by the defendant, contributory negligence will, subject to this section, be presumed. (2) The injured person may, however, rebut the presumption by establishing on the balance of probabilities— (a) that the intoxication did not contribute to the accident; or (b) that the intoxication was not self-induced; or (c) — (i) the intoxication is wholly attributable to the use of drugs in accordance with the prescription or instructions of a medical practitioner; and (ii) the injured person was complying with the instructions and recommendations of the medical practitioner and the manufacturer of the drugs as to what he or she should do, or avoid doing, while under the influence of the drugs. (3) Unless the presumption of contributory negligence is rebutted, the court must assess damages on the basis that the damages to which the injured person would be entitled in the absence of contributory negligence are to be reduced, on account of contributory negligence, by 25 per cent or a greater percentage determined by the court to be appropriate in the circumstances of the case. (4) If, in the case of a motor accident, the injured person was the driver of a motor vehicle involved in the accident and the evidence establishes— (a) that the concentration of alcohol in the injured person's blood was .15 grams or more in 100 millilitres of blood; or (b) that the driver was so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle, the minimum reduction prescribed by subsection (3) is to be increased to 50 per cent. 47—Presumption of contributory negligence where injured person relies on care and skill of person known to be intoxicated (1) If— (a) the injured person— (i) was of or above the age of 16 years at the time of the accident; and (ii) relied on the care and skill of a person who was intoxicated at the time of the accident; and (iii) was aware, or ought to have been aware, that the other person was intoxicated; and (b) the accident was caused through the negligence of the other person; and (c) the defendant alleges contributory negligence on the part of the injured person, contributory negligence will, subject to this section, be presumed. (2) Subject to the following exception, the presumption is irrebuttable. Exception— The injured person may rebut the presumption by establishing, on the balance of probabilities, that— (a) the intoxication did not contribute to the accident; or (b) the injured person could not reasonably be expected to have avoided the risk. (3) In a case in which contributory negligence is to be presumed under this section, the court must apply a fixed statutory reduction of 25 per cent in the assessment of damages. (4) A passenger in a motor vehicle is taken, for the purposes of this section, to rely on the care and skill of the driver. (5) If, in the case of a motor accident, the evidence establishes— (a) that the concentration of alcohol in the driver's blood was .15 grams or more in 100 millilitres of blood; or (b) that the driver was so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle, the fixed statutory reduction prescribed by subsection (3) is increased to 50 per cent. (6) This section operates to the exclusion of the defence of volenti non fit injuria insofar as it relates to the voluntary assumption of a risk arising from the intoxication of another. 48—Evidentiary provision relating to intoxication (1) A finding by a court that there was present in the blood of a person, at or about the time of an accident, a concentration of alcohol of .08 or more grams in 100 millilitres of blood is to be accepted, for the purposes of this Part, as conclusive evidence of the facts so found and that the person was intoxicated at the time of the accident. (2) A finding by a court that a person was at or about the time of an accident so much under the influence of alcohol or a drug as to be unable to exercise effective control of a motor vehicle is to be accepted, for the purposes of this Part, as conclusive evidence that the person was, at the time of the accident, so much under the influence of alcohol or a drug as to be unable to exercise effective control of the motor vehicle. 49—Non-wearing of seatbelt etc (1) If the injured person was injured in a motor accident, was of or above the age of 16 years at the time of the accident and— (a) the injured person was not, at the time of the accident, wearing a seatbelt as required under the Road Traffic Act 1961; or (b) one of the following factors contributed to the accident or the extent of the injury: (i) the injured person was not wearing a safety helmet as required under the Road Traffic Act 1961; (ii) the injured person was a passenger in or on a motor vehicle with a passenger compartment but was not in the passenger compartment at the time of the accident, contributory negligence will, subject to this section, be presumed. (2) Subject to the following exception, the presumption is irrebuttable. Exception— In the case mentioned in subsection (1)(b)(ii)—the injured person may rebut the presumption by establishing, on the balance of probabilities, that the injured person could not reasonably be expected to have avoided the risk. (3) In a case in which contributory negligence is to be presumed under this section, the court must apply a fixed statutory reduction of 25 per cent in the assessment of damages. 50—How case is dealt with where damages are liable to reduction on account of contributory negligence (1) If damages are liable to reduction on account of actual or presumed contributory negligence, the court is to proceed in accordance with this section. (2) First, the court is to assess the damages to which the injured person would be entitled if there were no reduction for contributory negligence. (3) Secondly, the court is to— (a) determine the extent of the injured person's contributory negligence, leaving out of the account factors for which a fixed statutory reduction is prescribed by this Part but taking into account the injured person's intoxication (if relevant) and factors that would, apart from this Part, amount to contributory negligence; and (b) determine a percentage reduction to be made on account of these forms of contributory negligence (which cannot be less in a case involving intoxication than the relevant minimum prescribed by this Part); and (c) then reduce the amount assessed under subsection (2) by the percentage determined under this subsection. (4) Thirdly, the court is to apply any applicable fixed statutory reduction to the amount assessed under subsection (2) and reduced, if required, under subsection (3), and, if 2 or more fixed statutory reductions are required, the court is to make them in series. Suppose that an amount of $100 000 is subject to 2 fixed statutory reductions of 25 per cent. In this case, the amount is first reduced to $75 000 and then reduced to $56 250. (5) There is no necessary correlation between a finding of contributory negligence in relation to a cause of action under this Part and an apportionment of liability in relation to a different cause of action arising from the same facts. Suppose that A and B are both drivers of motor vehicles that come into collision as a result of the negligence of both with resultant personal injuries to each other and also to C, a passenger in B's vehicle. Suppose that B's damages are reduced by 60 per cent under this Part as a result of actual or presumptive contributory negligence causally related to the occurrence of the accident. This is not to imply that, in A's action against B, no reduction beyond 40 per cent can be made on a similar basis. In C's action against A and B, responsibility will be apportioned between A and B without regard to the provisions of this Part.