New South Wales Consolidated Acts

MOTOR ACCIDENTS ACT 1988 - SECT 74

74 Contributory negligence-generally

(1) The common law and enacted law as to contributory negligence apply to claims in respect of motor accidents, except as provided by this section.

(2) A finding of contributory negligence shall be made in the following cases:

(a) where the injured person or deceased person has been convicted of an offence in relation to the motor accident under:

(i) section 9 of the Road Transport (Safety and Traffic Management) Act 1999 , or

(ii) section 12 of Road Transport (Safety and Traffic Management) Act 1999 ,

unless the plaintiff satisfies the court that the concentration of alcohol in the person’s blood or the alcohol or other drug, as the case requires, 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,

(c) where the injured person (not being a minor) or the deceased person was, contrary to the requirements of regulations made under the Road Transport (Safety and Traffic Management) Act 1999 , not wearing a seat belt as required by those regulations at the time of the motor accident,

(d) where the injured person or the deceased person was, at the time of the motor accident, contrary to the requirements of regulations made under the Road Transport (Safety and Traffic Management) Act 1999 , not wearing a protective helmet.

(3) The damages recoverable in respect of the motor accident shall 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) If, in relation to the motor accident, the injured person or deceased person is convicted of an offence under the Road Transport (Safety and Traffic Management) Act 1999 of:

(a) 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

(b) wilfully altering the concentration of alcohol in the person’s blood, or

(c) preventing a sample of the person’s blood from being taken,

the person is taken, for the purposes of this section, to have been convicted of an offence under section 9 (4) of the Road Transport (Safety and Traffic Management) Act 1999 .

(6) A person shall not be regarded as a voluntary passenger in or on a motor vehicle for the purposes of subsection (2) (b) if, in the circumstances of the case, the person could not reasonably be expected to have declined to become a passenger in or on the vehicle.

(7) For the purposes of this Act, a deceased person shall be 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.

(8) This section does not exclude any other ground on which a finding of contributory negligence may be made.