138Contributory negligence—generally

#### 138 Contributory negligence—generally 138 Contributory negligence—generally (cf s 74 MAA) > > (1) The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section. > > > (2) A finding of contributory negligence must be made in the following cases— > > > > > (a) where the injured person or deceased person has been convicted of an alcohol or other drug-related offence in relation to the motor accident, unless the plaintiff satisfies the court that the alcohol or other drug involved in the commission of the offence did not contribute in any way to the accident, > > > > > (b) where— > > > > > > > (i) the injured person (not being a minor) or the deceased person was, at the time of the motor accident, a voluntary passenger in or on a motor vehicle, and > > > > > > > (ii) the driver’s ability to drive the motor vehicle was impaired as a consequence of the consumption of alcohol or any other drug and the injured person or the deceased person was aware, or ought to have been aware, of the impairment, > > > > > > unless, in the circumstances of the case, the injured person or deceased person could not reasonably be expected to have declined to become a passenger in or on the motor vehicle, > > > > > (c) where the injured person (not being a minor) or the deceased person was, at the time of the motor accident, not wearing a seat belt when required by law to do so, > > > > > (d) where the injured person or the deceased person was, at the time of the motor accident, not wearing a protective helmet when required by law to do so. > > > (3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case. > > > (4) The court must state its reasons for determining the particular percentage. > > > (5) For the purposes of this Act, a deceased person is taken to have been convicted of an offence if any circumstances exist in respect of the deceased person which, but for the deceased person’s death, would have resulted in the conviction of the deceased person for the offence or the proving of the offence against the deceased person. > > > (6) This section does not exclude any other ground on which a finding of contributory negligence may be made. > > > (7) For the purposes of this section, an alcohol or other drug-related offence is— > > > > > (a) an offence of driving a motor vehicle with a particular concentration of alcohol or other drug in the person’s breath or blood, or > > > > > (b) an offence of driving a motor vehicle under the influence of alcohol or other drug, or > > > > > (c) an offence of causing death or injury while driving a motor vehicle under the influence of alcohol or other drug, or > > > > > (d) an offence, in connection with the driving of a motor vehicle, of— > > > > > > > (i) refusing or failing to submit to breath analysis, to undergo a breath test, to submit to an assessment of sobriety or to provide samples of the person’s blood and urine, or > > > > > > > (ii) wilfully altering the concentration of alcohol or other drug in the person’s breath or blood, or > > > > > > > (iii) preventing a sample of the person’s blood from being taken for analysis. > > **s 138:** Am 2007 No 99, Sch 3.10.