South Australian Current Acts

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CIVIL LIABILITY ACT 1936 - SECT 46

46—Presumption of contributory negligence where injured person intoxicated

        (1)         If the injured person was intoxicated at the time of the accident, and contributory negligence is alleged by the defendant, contributory negligence will, subject to this section, be presumed.

        (2)         The injured person may, however, rebut the presumption by establishing on the balance of probabilities—

            (a)         that the intoxication did not contribute to the accident; or

            (b)         that the intoxication was not self-induced; or

            (c)         —

                  (i)         the intoxication is wholly attributable to the use of drugs in accordance with the prescription or instructions of a medical practitioner; and

                  (ii)         the injured person was complying with the instructions and recommendations of the medical practitioner and the manufacturer of the drugs as to what he or she should do, or avoid doing, while under the influence of the drugs.

        (3)         Unless the presumption of contributory negligence is rebutted, the court must assess damages on the basis that the damages to which the injured person would be entitled in the absence of contributory negligence are to be reduced, on account of contributory negligence, by 25 per cent or a greater percentage determined by the court to be appropriate in the circumstances of the case.

        (4)         If, in the case of a motor accident, the injured person was the driver of a motor vehicle involved in the accident and the evidence establishes—

            (a)         that the concentration of alcohol in the injured person'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 minimum reduction prescribed by subsection (3) is to be increased to 50 per cent.



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