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Intoxication at the time of the incident being litigated will result in a discount of 25% for contributory negligence, unless the court is satisfied that the person’s intoxication did not contribute to the cause of death, injury or damage. The court has a discretion to increase or decrease that percentage for contributory negligence.

If a person engages in conduct that constitutes a serious offence, and this conduct materially contributed to any of the litigated consequences, then they are not to be awarded any damages at all. This is a complete defence for the defendant against the plaintiff’s conduct where that conduct constituted a serious criminal offence.

What is a ‘serious offence’

A serious offence is defined as any offence that is punishable by more than 6 months imprisonment. Courts are very restrictive with this provision, and will ask when the serious offence activities occurred, in order to determine whether the harm resulted from the act itself, or from circumstances around that act.

On a very liberal reading, a serious offence would include cruelty to animals, under the Animal Welfare Act 1993 (Tas), it would also include trespass under the Police Offences Act 1935 (Tas), which alters the law regarding accidents on land, if the trespass itself materially contributed to the accident. The test is twofold: was the plaintiff engaged in conduct that constituted a serious offence? If yes, then the court asks whether that conduct materially contributed to the accident. If the answer to this is also yes, then the plaintiff will not receive any damages. An example is where a girl stole a car while intoxicated. The driver of the car was also intoxicated. At that point, she was no longer engaged in the conduct that materially contributed to accident, as she was no longer stealing the car, or driving it while intoxicated. The defendant must raise either the intoxication or illegal activity to access exemption from liability, it is not the place of the plaintiff.

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