CIVIL LIABILITY ACT 1936 - SECT 47
CIVIL LIABILITY ACT 1936 - SECT 47
47—Presumption of contributory negligence where injured person relies on
care and skill of person known to be intoxicated
(1) If—
(a) the
injured person—
(i)
was of or above the age of 16 years at the time of the
accident; and
(ii)
relied on the care and skill of a person who was
intoxicated at the time of the accident; and
(iii)
was aware, or ought to have been aware, that the other
person was intoxicated; and
(b) the
accident was caused through the negligence of the other person; and
(c) the
defendant alleges contributory negligence on the part of the injured person,
contributory negligence will, subject to this section, be presumed.
(2) Subject to the
following exception, the presumption is irrebuttable.
Exception—
The injured person may rebut the presumption by establishing, 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) In a case in which
contributory negligence is to be presumed under this section, the court must
apply a fixed statutory reduction of 25 per cent in the assessment of damages.
(4) A passenger in a
motor vehicle is taken, for the purposes of this section, to rely on the care
and skill of the driver.
(5) If, in the case of
a motor accident, the evidence establishes—
(a) that
the concentration of alcohol in the driver's blood was .15 grams or more in
100 millilitres of blood; or
(b) that
the driver was so much under the influence of intoxicating liquor or a drug as
to be incapable of exercising effective control of the vehicle,
the fixed statutory reduction prescribed by subsection (3) is increased
to 50 per cent.
(6) This section
operates to the exclusion of the defence of volenti non fit injuria insofar as
it relates to the voluntary assumption of a risk arising from the intoxication
of another.