Where a trial judge is unable to determine a disputed fact on the balance of probabilities (such as which party had a green traffic light), the assessment of contributory negligence must proceed on the same factual basis as the assessment of liability. The trial judge cannot adopt the defendant's version of events for contributory negligence purposes merely because the plaintiff failed to discharge the onus of proof on liability. The fact that the plaintiff has not established his case on the balance of probabilities does not mean the contrary case is to be accepted.
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