Contributory Negligence and Intoxication



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Contributory Negligence and Intoxication:

It is well known around the world, that “Aussies” enjoy a drink or two. Whether it is a glass of wine, or sharing a cold beer with your mate, drinking alcohol is a part of the Australian culture unfortunately. Due to this culture, there have been many instances in which people have been involved in a public liability accident, and have sustained an injury whilst intoxicated. Injured persons that find themselves in these situations often believe that they have no right to damages, due to the level of their intoxication at the time of the injury. This is a common misconception, and by looking at the Civil Liability Act 2002 (NSW), and with reference to case law, intoxicated persons may still have a right to compensation.

Civil Liability Act 2002 (NSW)

Firstly, when establishing that a Defendant is negligent in a personal injury claim, it must be established that they had a duty of care. Under s5B, the Defendant is required to take precautions in circumstances where:

  1. The risk was foreseeable; and
  2. The risk was not insignificant; and
  3. In the circumstances, a reasonable person in the person’s position would have taken precautions.

In circumstances, in which a Defendant has failed to take precautions to mitigate the risk of harm to the injured person, the Defendant will be exposed to a possible negligence claim.

If it is established that the Defendant has a duty of care to the Plaintiff, the next step is to determine what role the Plaintiff’s intoxication can have on the progression of the matter.

Part 6

In instances where the Plaintiff was intoxicated at the time of the accident, the Court will make reference to Part 6 of the Civil Liability Act 2002, when determining the claim.

It is noted under s47, that Part 6 applies to “civil liability of any kind for personal injury damages or damage to property.”

“Intoxication” is defined under s48, and refers to a person under the influence of alcohol or drugs (regardless of the drug being legal or illegal).

No recovery where person intoxicated

Under s50(1) and (2), a person is not to be awarded damages in respect of liability for death, injury or damage, if it is established that at the time of injury the person was intoxicated to the extent their capacity to exercise reasonable care and skill was impaired.

Based on this section, it would seem that the pre-conceptions of being intoxicated at the time of injury are well founded, however the section continues to provide an instance in which damages may be allowed. Under s50(2), it is outlined that the court may award damages if it is satisfied that the death, injury or damage to property was likely to have occurred even if the person had not been intoxicated.

If the court is satisfied that the injury would have occurred regardless of intoxication, it is presumed that the person was contributorily negligent, unless it is determined that the person’s intoxication didn’t play any role in the injury (s50(3)).

In circumstances where the court finds contributory negligence against the Plaintiff, the court must assess the damages on the basis that the damages in which the person would have been entitled in the absence of contributory negligence, will be reduced as a result of the contributory negligence by 25% or greater percentage determined appropriate (s50(4)).

King v Rail Corp NSW 2013 (NSW)

In this case, the Plaintiff was involved in an accident in which he was hit by a train at 3:00am in the morning at Mortdale Station. As a result of being hit by the train, the Plaintiff lost his left leg.

It was determined by the Court that the driver was in breach of his duty of care by not observing “the object” (Mr King) in his line of sight, across the railhead. As a result of this breach, the Plaintiff sustained injury in the form of losing his leg.

The Court also determined that the Plaintiff was intoxicated at the time of his injury, and therefore his own negligence contributed to his injuries.  It was evaluated that the Plaintiff was 50% responsible for the accident.

Considering both sides the Court evaluated the quantum as $1.3 million, the Plaintiff received $650,000 in damages, representing 50% reduction as a result of contributory negligence.


As outlined above, although there are some circumstances where contributory negligence and intoxication of an injured person can result in no entitlement to damages, in instances where the Court is satisfied that the injury would have occurred regardless of the intoxication, a Plaintiff will still have the right to compensation. The damages a Plaintiff may receive in these circumstances may be diminished as a result of contributory negligence (King v Rail Corp NSW 2013), or there may be no reduction at all.

If you or somebody you care about has been involved in an accident, you may be entitled to compensation. For more information, and to arrange a free, no-obligation assessment of your claim, please call Stacks Goudkamp on 1800 251 800 or alternatively make an online enquiry.



I could write a book as to how the last 4 years would have been different if not for Tom and his team.
The support, assistance, advice from the first conversation till even after the settlement was second to none from the team at Stacks Goudkamp.
Four years on and after many downs, my children and I have our lives back.
We are unable to THANK YOU enough, but know that you have changed our lives for the better in so many ways since the accident.