New South Wales Consolidated Acts

MOTOR ACCIDENT INJURIES ACT 2017 - SECT 3.38

3.38 Reduction of weekly statutory benefits after 12 months for contributory negligence

(1) The common law and enacted law as to contributory negligence that applies to an award of damages in respect of a motor accident applies (except as provided by this section) to weekly payments of statutory benefits for any period of loss of earnings or earning capacity that occurs more than 52 weeks after the time of the motor accident.

(2) A finding of contributory negligence must be made in the following cases--

(a) where the injured person has been convicted of an alcohol or other drug-related offence in relation to the motor accident, unless the injured person satisfies the insurer or the Commission that the alcohol or other drug involved in the commission of the offence did not contribute in any way to the accident,

(b) where--

(i) the injured person (not being a minor) was, at the time of the motor accident, a voluntary passenger in or on a motor vehicle, and

(ii) the driver's ability to drive the motor vehicle was impaired as a consequence of the consumption of alcohol or any other drug and the injured person was aware, or ought to have been aware, of the impairment,

unless, in the circumstances of the case, the injured person could not reasonably be expected to have declined to become a passenger in or on the motor vehicle,

(c) where the injured person (not being a minor) was, at the time of the motor accident, not wearing a seat belt when required by law to do so,

(d) where the injured person was, at the time of the motor accident, not wearing a protective helmet when required by law to do so,

(e) where the defence of volenti non fit injuria would have been available, but for section 4.18 (Defence of voluntary assumption of risk), in proceedings for an award of damages in respect of the motor accident,

(f) in the case of any other conduct of the injured person that is prescribed by the regulations for the purposes of this section.

(3) The weekly payments of statutory benefits payable in respect of a motor accident are to be reduced on account of contributory negligence--

(a) if subsection (4) requires the statutory benefits be reduced by a fixed percentage--by that fixed percentage, or

(b) by such percentage as the parties agree, or

(c) in any other case--by such percentage as the Commission determines (for the reasons stated) is just and equitable in the circumstances of the case.

If there is a dispute about the percentage of the reduction on account of contributory negligence, the insurer is required to make the weekly payments with the reduction the insurer considers appropriate pending the determination of the dispute by the Commission.

(4) The regulations may fix the percentage by which weekly payments of statutory benefits are to be reduced on account of contributory negligence in respect of specified conduct that constitutes contributory negligence of an injured person.

(5) This section does not exclude any other ground on which a finding of contributory negligence may be made.

(6) For the purposes of this section, an
"alcohol or other drug-related offence" is--

(a) an offence of driving a motor vehicle with a particular concentration of alcohol or other drug in the person's breath or blood, or

(b) an offence of driving a motor vehicle under the influence of alcohol or other drug, or

(c) an offence of causing death or injury while driving a motor vehicle under the influence of alcohol or other drug, or

(d) an offence, in connection with the driving of a motor vehicle, of--

(i) refusing or failing to submit to breath analysis, to undergo a breath test, to submit to an assessment of sobriety or to provide samples of the person's blood and urine, or

(ii) wilfully altering the concentration of alcohol or other drug in the person's breath or blood, or

(iii) preventing a sample of the person's blood from being taken for analysis.