Gross intoxication of a plaintiff does not of itself establish contributory negligence; the defendant bears the onus of proving that the intoxication was a necessary condition of the occurrence of the particular harm under s 5D of the Civil Liability Act 2002 (NSW). Where the only established causal link between a plaintiff's failure to take care and the harm suffered is the failure to wear a helmet, and the injuries are predominantly spinal rather than cranial, a 5% apportionment for contributory negligence may be appropriate. An appellate court will not interfere with a trial judge's factual findings based on credibility even where the appellate judges harbour doubt, provided the trial judge's forensic advantage has not been palpably misused.
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