Contributory negligence assessments of 35-40% are within the acceptable range for intoxicated passengers who knew or ought to have known the driver was intoxicated and who failed to wear seatbelts, where the driver's blood alcohol was relatively low (0.09g/100ml) and the passengers did not control or invite the driver to drive. The 80% assessments in Williams, Mackenzie and Zanner are distinguishable where the plaintiff controlled the driver's conduct, actively invited the driver to drive, and the blood alcohol levels were far higher. The interaction between s 49 of the Civil Liability Act 2002 (NSW) and s 138 of the Motor Accidents Compensation Act 1999 (NSW) regarding the effect of a plaintiff's own intoxication on contributory negligence remains unresolved.
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