50—How case is dealt with where damages are liable to reduction on
account of contributory negligence
(1) If damages are
liable to reduction on account of actual or presumed contributory negligence,
the court is to proceed in accordance with this section.
(2) First, the court
is to assess the damages to which the injured person would be entitled if
there were no reduction for contributory negligence.
(3) Secondly, the
court is to—
(a)
determine the extent of the injured person's contributory negligence, leaving
out of the account factors for which a fixed statutory reduction is prescribed
by this Part but taking into account the injured person's intoxication (if
relevant) and factors that would, apart from this Part, amount to
contributory negligence; and
(b)
determine a percentage reduction to be made on account of these forms of
contributory negligence (which cannot be less in a case involving intoxication
than the relevant minimum prescribed by this Part); and
(c) then
reduce the amount assessed under subsection (2) by the percentage
determined under this subsection.
(4) Thirdly, the court
is to apply any applicable fixed statutory reduction to the amount assessed
under subsection (2) and reduced, if required, under subsection (3),
and, if 2 or more fixed statutory reductions are required, the court is to
make them in series.
Example—
Suppose that an amount of $100 000 is subject to 2 fixed statutory
reductions of 25 per cent. In this case, the amount is first reduced to
$75 000 and then reduced to $56 250.
(5) There is no
necessary correlation between a finding of contributory negligence in relation
to a cause of action under this Part and an apportionment of liability in
relation to a different cause of action arising from the same facts.
Example—
Suppose that A and B are both drivers of motor vehicles that come into
collision as a result of the negligence of both with resultant personal
injuries to each other and also to C, a passenger in B's vehicle. Suppose that
B's damages are reduced by 60 per cent under this Part as a result of actual
or presumptive contributory negligence causally related to the occurrence of
the accident. This is not to imply that, in A's action against B, no reduction
beyond 40 per cent can be made on a similar basis. In C's action against A and
B, responsibility will be apportioned between A and B without regard to the
provisions of this Part.