[1958] VR 259
BENJAMIN v CURRIE
SUPREME COURT OF VICTORIA FULL COURT
HERRING (1) CJ, O'BRYAN (1) and DEAN (1), JJ
14 November, 19 December 1957
[1958] VR 259
Negligence — Lord Campbell's Act — Contributory negligence — Damages reduced — In same proportion as in action for personal injuries and damage to property — Wrongs Act 1928 (No. 3807), PtIII; Wrongs (Contributory Negligence) Act 1951
(No. 5594), s3..
A person by or on whose behalf an action is brought under PtIII of the Wrongs
Act 1928 and who has been partially responsible for the death on which his
claim is based, is liable to have his damages reduced under the Wrongs
(Contributory Negligence) Act 1951. Judgment of Fullagar, J, in Kain and
Shelton Ltd v Virgo, [1956] ALR (CN) 1227, followed. Carstein v Locco, [1941]
VLR 245, overruled. The proportion of loss which he should bear must be the
same as in his action for personal injuries and for damage to property.
Circumstances in which the Full Court allowed a point not taken in the Court
below to be raised on appeal, and in finding for the appellant on the point,
ordered that he pay the respondent's costs of the appeal.
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[1958] VR 259
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