sec.48Presumption of contributory negligence if person who suffers harm relies on care and skill of person known to be intoxicated

### sec.48 Presumption of contributory negligence if person who suffers harm relies on care and skill of person known to be intoxicated This section applies to a person who suffered harm ( plaintiff ) who— was at least 16 years at the time of the breach of duty giving rise to the harm; and relied on the care and skill of a person who was intoxicated at the time of the breach of duty ( defendant ); and was aware, or ought reasonably to have been aware, that the defendant was intoxicated. If the harm suffered by the plaintiff was caused through the negligence of the defendant and the defendant alleges contributory negligence on the part of the plaintiff, contributory negligence will, subject to this section, be presumed. The plaintiff may only rebut the presumption if the plaintiff establishes, on the balance of probabilities, that— the defendant’s intoxication did not contribute to the breach of duty; or the plaintiff could not reasonably be expected to have avoided relying on the defendant’s care and skill. Unless the plaintiff rebuts the presumption of contributory negligence, the court must assess damages on the basis that the damages to which the plaintiff would be entitled in the absence of contributory negligence are to be reduced, on account of contributory negligence, by 25% or a greater percentage decided by the court to be appropriate in the circumstances of the case. The common law defence of voluntary assumption of risk does not apply to a matter to which this section applies. ‘Voluntary assumption of risk’ is sometimes stated as ‘volenti non fit injuria’. (sec.48-ssec.1) This section applies to a person who suffered harm ( plaintiff ) who— was at least 16 years at the time of the breach of duty giving rise to the harm; and relied on the care and skill of a person who was intoxicated at the time of the breach of duty ( defendant ); and was aware, or ought reasonably to have been aware, that the defendant was intoxicated. (sec.48-ssec.2) If the harm suffered by the plaintiff was caused through the negligence of the defendant and the defendant alleges contributory negligence on the part of the plaintiff, contributory negligence will, subject to this section, be presumed. (sec.48-ssec.3) The plaintiff may only rebut the presumption if the plaintiff establishes, on the balance of probabilities, that— the defendant’s intoxication did not contribute to the breach of duty; or the plaintiff could not reasonably be expected to have avoided relying on the defendant’s care and skill. (sec.48-ssec.4) Unless the plaintiff rebuts the presumption of contributory negligence, the court must assess damages on the basis that the damages to which the plaintiff would be entitled in the absence of contributory negligence are to be reduced, on account of contributory negligence, by 25% or a greater percentage decided by the court to be appropriate in the circumstances of the case. (sec.48-ssec.5) The common law defence of voluntary assumption of risk does not apply to a matter to which this section applies. ‘Voluntary assumption of risk’ is sometimes stated as ‘volenti non fit injuria’. - (a) was at least 16 years at the time of the breach of duty giving rise to the harm; and - (b) relied on the care and skill of a person who was intoxicated at the time of the breach of duty ( defendant ); and - (c) was aware, or ought reasonably to have been aware, that the defendant was intoxicated. - (a) the defendant’s intoxication did not contribute to the breach of duty; or - (b) the plaintiff could not reasonably be expected to have avoided relying on the defendant’s care and skill.