Victorian Consolidated Legislation

Wrongs Act 1958 - SECT 26

Liability for contributory negligence3

26. Liability for contributory negligence3





(1) If a person (the claimant) suffers damage as the result partly of the
claimant's failure to take reasonable care (contributory negligence) and
partly of the wrong of any other person or persons-

   (a)  except as provided in section 63, a claim in respect of the damage is
        not defeated by reason of the contributory negligence of the claimant;
        and

   (b)  the damages recoverable in respect of the wrong must be reduced to
        such extent as the court thinks just and equitable having regard to
        the claimant's share in the responsibility for the damage.

(1A) Subsection (1) does not operate to defeat any defence arising under a
contract.



(1B) If any contract or enactment providing for the limitation of liability is
applicable to the claim, the amount of damages awarded to the claimant by
virtue of subsection (1) is not to exceed the maximum limit so applicable.

(1C) If a claim is brought in a court of limited jurisdiction, the court may
award damages up to the limit of its jurisdiction even though the amount of
damages has first been reduced under subsection (1) or (1B).

(2) Where damages are recoverable by any person by virtue of subsection (1)
subject to such reduction as is therein mentioned, the court shall find and
record the total damages which, apart from any limitation referred to in
subsections (1B) and (1C), would have been awarded, if the claimant had not
been guilty of contributory negligence.



* * * * *



(4) Where any person dies as a result partly of his or her failure to take
reasonable care (contributory negligence) and partly of the wrong of any other
person or persons an action brought by the dependants of the first-mentioned
person under Part III of this Act shall not be defeated nor shall any damages
recoverable by those dependants under that action be reduced by reason of that
first-mentioned person's contributory negligence.

(5) Where, in any case to which subsection (1) of this section applies, one of
the persons responsible for the damage avoids liability to any other such
person or his personal representative by pleading any enactment limiting the
time within which proceedings may be taken, he shall not be entitled to
recover any damages from that other person or representative by virtue of the
said subsection.

(6) Where any case to which subsection (1) of this section applies is tried
with a jury, the jury shall determine the total damages which would have been
recoverable if the claimant had not been guilty of contributory negligence and
the extent to which those damages are to be reduced.

Note Division 7 of Part X also contains provisions relating to contributory
negligence.