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CIVIL LAW (WRONGS) ACT 2002 - SECT 96 Presumption of contributory negligence—injured person relying on intoxicated

CIVIL LAW (WRONGS) ACT 2002 - SECT 96

Presumption of contributory negligence—injured person relying on intoxicated person

    (1)     Contributory negligence must be presumed if—

        (a)     the injured person—

              (i)     was at least 16 years old at the time of the accident; and

              (ii)     relied on the care and skill of a person ( A ) who was intoxicated at the time of the accident; and

              (iii)     knew, or ought to have known, that A was intoxicated; and

        (b)     the accident was caused by A's negligence; and

        (c)     the defendant claims contributory negligence by the injured person.

    (2)     The presumption can be rebutted only if the injured person establishes, 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)     If the presumption is not rebutted, the damages the injured person would be entitled to, apart from the contributory negligence, must be reduced to the extent that the court considers just and equitable having regard to the injured person's share in the responsibility for the injury.

    (4)     For this section, a passenger in a motor vehicle is taken to rely on the care and skill of the driver.

    (5)     The common law defence of voluntary assumption of risk does not apply to a matter to which this section applies.