What is the test for contributory negligence under the Contributory Negligence Act?

Here, the statement of defence denied negligence on the part of the defendant and alleged that the collision in which the plaintiff sustained his damages was the result solely of negligence on the part of the plaintiff. Thus the issues to be tried were whether either or both of the parties were causatively negligent. The jury found both were at fault. In these circumstances, the provisions of The Contributory Negligence Act must be given their full effect: "2. (1) Where by fault of two or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree in which each person was at fault … ***** 3. (1) Where damage or loss has been caused by the fault of two or more persons, the court shall determine the degree in which each person was at fault." The jury made such determination. If it were necessary to go further, I am of the view that the case was conducted by the plaintiff throughout on the footing that he was faced with an issue which involved the statutory provisions, and he cannot now change his position: Spencer v. Field (1939) 1938 CanLII 23 (SCC), S.C.R. 36 at 42.