Karen may have an action against ABBBW for her broken arm. The occupier-occupant relationship is an established duty case. The facts also clearly establish breach by stating that ABBBW had ‘carelessly forgotten to put up a sign’. Finally, causation is clear from the statement that Karen tripped ‘due to this instability’. The only issue which must be addressed is whether the legislative presumption of contributory negligence is applicable to Karen.
Contributory negligence
Section 95(1) of the Civil Law (Wrongs) Act (CLWA) states that contributory negligence will be presumed if the injured person was intoxicated at the time of the accident. It is noted that Karen enters the waterhole after consuming a litre of wine. Although other factors which influence the effects of alcohol are not mentioned, such as Karen’s body mass, the large quantity of wine consumed means that ABBBW would probably not have a problem establishing intoxication.

However, Karen could rebut this presumption by referring to s 95(2)(a), which notes that contributory negligence will not be assumed if the plaintiff can prove on the balance of probabilities that his or her intoxication did not contribute to the accident. The facts simply state that Karen lost her balance ‘due to the instability’ of the waterhole and no indication is given that her intoxication made the accident more likely. Without evidence to the contrary, Karen would likely recover in full for her broken arm.
Karen v ABBBW (2)

ABBBW may also be liable to Karen for the broken leg she received in the course of Alex’s attempt to rescue her. As the elements of duty of care and breach are established in the previous section, Karen will only need to satisfy the test for causation.
Causation
Section 45 of the CLWA notes that for causation to be established, it must be shown that a) the negligence was a necessary condition