In determining the just and equitable reduction for contributory negligence under s 138(3) of the Motor Accidents Compensation Act 1999 (NSW), a plaintiff's intoxication may, depending on the circumstances, ameliorate culpability where it caused the plaintiff to act impulsively and without full consideration of consequences, even where the plaintiff retained actual knowledge and capacity. However, the amelioration is limited where the plaintiff deliberately drank to severe intoxication, as this itself constitutes a departure from the standard of care. The circumstances in which the plaintiff became intoxicated — particularly whether the later risk was in contemplation — are relevant to the assessment.
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