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,
(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,
(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.
(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,
(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.
