South Australian Current Acts

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47—Presumption of contributory negligence where injured person relies on care and skill of person known to be intoxicated

        (1)         If—

            (a)         the injured person—

                  (i)         was of or above the age of 16 years at the time of the accident; and

                  (ii)         relied on the care and skill of a person who was intoxicated at the time of the accident; and

                  (iii)         was aware, or ought to have been aware, that the other person was intoxicated; and

            (b)         the accident was caused through the negligence of the other person; and

            (c)         the defendant alleges contributory negligence on the part of the injured person,

contributory negligence will, subject to this section, be presumed.

        (2)         Subject to the following exception, the presumption is irrebutable.


The injured person may rebut the presumption by establishing, on the balance of probabilities, that—

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

            (b)         the injured person could not reasonably be expected to have avoided the risk.

        (3)         In a case in which contributory negligence is to be presumed under this section, the court must apply a fixed statutory reduction of 25 per cent in the assessment of damages.

        (4)         A passenger in a motor vehicle is taken, for the purposes of this section, to rely on the care and skill of the driver.

        (5)         If, in the case of a motor accident, the evidence establishes—

            (a)         that the concentration of alcohol in the driver'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 fixed statutory reduction prescribed by subsection (3) is increased to 50 per cent.

        (6)         This section operates to the exclusion of the defence of volenti non fit injuria insofar as it relates to the voluntary assumption of a risk arising from the intoxication of another.

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