Western Australian Consolidated Acts Western Australian Consolidated Acts (1) Whenever in any
claim for damages founded on an allegation of negligence the Court is
satisfied that the defendant was guilty of an act of negligence conducing to
the happening of the event which caused the damage then notwithstanding that
the plaintiff had the last opportunity of avoiding or could by the exercise of
reasonable care, have avoided the consequences of the defendant’s act or
might otherwise be held guilty of contributory negligence, the defendant shall
not for that reason be entitled to judgment, but the Court shall reduce the
damages which would be recoverable by the plaintiff if the happening of the
event which caused the damage had been solely due to the negligence of the
defendant to such extent as the Court thinks just in accordance with the
degree of negligence attributable to the plaintiff:
Provided
that —
(a) this
subsection shall not operate to defeat any defence arising under a contract;
(b)
where any contract or enactment providing for the limitation of liability is
applicable to the claim the amount of damages recoverable by virtue of this
subsection shall not exceed the maximum limit applicable.
(2) The provisions of
the preceding subsection shall apply to actions brought —
(a)
under the Fatal Accidents Act; or
(b) by
virtue of section 4 of the Law Reform (Miscellaneous Provisions) Act 1941
, in respect of a claim made for the benefit of the estate of a deceased
person in consequence of the death of the deceased as the result of the
negligence of another person;
and for that purpose
shall be read and construed as if the following words were inserted in the
following relative positions in the subsection: —
(i)
after the words “notwithstanding that the
plaintiff” insert the words “or the deceased person in respect of
whose death or for the benefit of whose estate the claim is brought or some
other person for whose acts the deceased person was responsible”.
(ii)
after the words “recoverable by the
plaintiff” insert the words “or by the persons for whose benefit
the claim is made or by the estate of the deceased person in respect of which
the claim is made”.
(3) The provisions of
subsection (1) shall apply notwithstanding that one or more of the
parties to the action might by reason of such negligence be held guilty of a
punishable offence.
(4) Where any case to
which subsection (1) applies is tried with a jury, the jury shall
determine the total damages which would have been recoverable if the party
claiming the damages had not been negligent and the extent to which those
damages are to be reduced.