Queensland Consolidated Acts
[Index]
[Table]
[Search]
[Search this Act]
[Notes]
[Noteup]
[Previous]
[Next]
[Download]
[Help]
CIVIL LIABILITY ACT 2003 - SECT 48
Presumption of contributory negligence if person who suffers harm relies on care and skill of person known to be intoxicated
48 Presumption of contributory negligence if person who suffers harm relies on
care and skill of person known to be intoxicated
(1) This section applies to a person who suffered harm (
"plaintiff" ) who— (a) was at least 16 years at the time of the breach of
duty giving rise to the harm; and
(b) relied on the care and skill of a
person who was intoxicated at the time of the breach of duty (
"defendant" ); and
(c) was aware, or ought reasonably to have been aware,
that the defendant was intoxicated.
(2) If the harm suffered by the plaintiff
was caused through the negligence of the defendant and the defendant alleges
contributory negligence on the part of the plaintiff, contributory negligence
will, subject to this section, be presumed.
(3) The plaintiff may only rebut
the presumption if the plaintiff establishes, on the balance of probabilities,
that— (a) the defendant’s intoxication did not contribute to the breach of
duty; or
(b) the plaintiff could not reasonably be expected to have avoided
relying on the defendant’s care and skill.
(4) Unless the plaintiff rebuts
the presumption of contributory negligence, the court must assess damages on
the basis that the damages to which the plaintiff would be entitled in the
absence of contributory negligence are to be reduced, on account of
contributory negligence, by 25% or a greater percentage decided by the court
to be appropriate in the circumstances of the case.
(5) The common law
defence of voluntary assumption of risk does not apply to a matter to which
this section applies. Editor’s note— ‘Voluntary assumption of risk’
is sometimes stated as ‘volenti non fit injuria’.
AustLII: Copyright Policy
| Disclaimers
| Privacy Policy
| Feedback