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.