Victorian Current Acts Victorian Current ActsS. 26(1) substituted by No. 75/2000 s. 5.
(1) If a person ( the claimant ) suffers damage as the result partly of the claimant's failure to take reasonable care ( contributory negligence ) and partly of the wrong of any other person or persons—
S. 26(1)(a) amended by No. 102/2003 s. 7(1).
(a) except as provided in section 63, a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant; and
(b) the damages recoverable in respect of the wrong must be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.
S. 26(1A) inserted by No. 75/2000 s. 5.
(1A) Subsection (1) does not operate to defeat any defence arising under a contract.
S. 26(1B) inserted by No. 75/2000 s. 5.
(1B) If any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages awarded to the claimant by virtue of subsection (1) is not to exceed the maximum limit so applicable.
S. 26(1C) inserted by No. 75/2000 s. 5.
(1C) If a claim is brought in a court of limited jurisdiction, the court may award damages up to the limit of its jurisdiction even though the amount of damages has first been reduced under subsection (1) or (1B).
S. 26(2) amended by No. 75/2000 s. 6(1)(a)–(c).
(2) Where damages are recoverable by any person by virtue of subsection (1) subject to such reduction as is therein mentioned, the court shall find and record the total damages which, apart from any limitation referred to in subsections (1B) and (1C), would have been awarded, if the claimant had not been guilty of contributory negligence.
S. 26(3) repealed by No. 10227 s. 8(d)(i).
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S. 26(4) substituted by No. 9856 s. 6, amended by No. 75/2000 s. 6(2)(a)(b).
(4) Where any person dies as a result partly of his or her failure to take reasonable care ( contributory negligence ) and partly of the wrong of any other person or persons an action brought by the dependants of the first-mentioned person under Part III of this Act shall not be defeated nor shall any damages recoverable by those dependants under that action be reduced by reason of that first-mentioned person's contributory negligence.
S. 26(5) amended by Nos 10227 s. 8(d)(ii), 75/2000 s. 6(3).
(5) Where, in any case to which subsection (1) of this section applies, one of the persons responsible for the damage avoids liability to any other such person or his personal representative by pleading any enactment limiting the time within which proceedings may be taken, he shall not be entitled to recover any damages from that other person or representative by virtue of the said subsection.
S. 26(6) amended by No. 75/2000 s. 6(4).
(6) Where any case to which subsection (1) of this section applies is tried with a jury, the jury shall determine the total damages which would have been recoverable if the claimant had not been guilty of contributory negligence and the extent to which those damages are to be reduced.
Note to s. 26 inserted by No. 102/2003 s. 7(2).
Note
Division 7 of Part X also contains provisions relating to contributory negligence.
S.
27
repealed by No. 9683 s. 8, new s. 27 inserted by No. 75/2000
s. 7.