In a blameless motor accident claim under Part 1.2 Div 1 of the Motor Accidents (Compensation) Act 1999 (NSW), the reduction of damages for contributory negligence is assessed by inquiring how far the plaintiff departed from the standard of care required for his or her own safety, not by comparing the culpability of plaintiff and defendant. No allowance is made for self-induced intoxication. A party who does not press a pleaded defence at trial and does not reserve the right to challenge an earlier Court of Appeal decision will face significant difficulty obtaining leave to challenge that decision on appeal. The question whether the Axiak v Ingram test should be reconsidered in favour of the approach suggested in Davis v Swift (apportioning responsibility between plaintiff and defendant using counterfactual assumptions) remains open for a future case where the issue is properly raised.
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