Ackland v Commonwealth of Australia

[2007] NSWCA 250

Reported Decision:	(2007) Aust Torts Reports 81-916
Appeal Outcome:	Special leave refused with costs by the High Court - 18 April 2008

New South Wales

Court of Appeal

CITATION:	ACKLAND v COMMONWEALTH OF AUSTRALIA [2007] NSWCA 250
HEARING DATE(S):	14 February 2007
JUDGMENT DATE:	20 September 2007
JUDGMENT OF:	Santow JA at 1; Ipp JA at 131; McColl JA at 152
DECISION:	(1) Appeal upheld. (2) Judgment and verdict given below be set aside. (3) The case be remitted to the Common Law Division for retrial. (4) The respondent to pay the appellant's costs of the appeal. (5) The costs of the first trial be reserved for the judge hearing the retrial.
CATCHWORDS:	TORTS - Contributory negligence at common law as applicable to damages as distinct from applicability to original accident - Availability of apportionment of damages in relation to contributory negligence at common law - Unavailability of s 10(1) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (the "1965 Act") as events pre-dated its coming into force - Events concerned collision of VOYAGER and MELBOURNE in 1964 with crew member (the plaintiff/appellant) subsequently bringing an action in negligence against the Commonwealth (the defendant/respondent) for damage including for subsequent psychiatric injury and associated excess alcohol abuse and binge eating - Allegation of contributory negligence on part of the plaintiff/appellant in alcohol abuse being self-induced and not caused by the accident - Jury assessed appellant's contributory negligence at 50% of the overall verdict in circumstances where there was no quantification given to or determined by the jury of damage attributable to the alcohol abuse or the psychiatric injury - Trial judge's directions to the jury challenged as requiring new trial and by reason of trial judge's subsequent erroneous determination after the jury verdict that the 1965 Act applied to require apportionment of damage - availability of new trial or verdict to be upheld. D -
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW) s56 Law Reform (Miscellaneous Provisions) Act 1965 (NSW) Part IV, s8, s10(1), s56, s58, Law Reform (Miscellaneous Provisions) Act 2000 (NSW) Supreme Court Rules Pt 33 r8A
CASES CITED:	Alford v Magee (1952) 85 CLR 437 Astley v Austrust Limited (1999) 197 CLR 1 Carlsholm (Owners) v Calliope (Owners), “The Calliope” [1970] P 172 Caswell v Powell Duffryn Associated Collieries Limited [1940] AC 152 Commonwealth v McLean (1996) 41 NSWLR 389 Davies v Mann (1842) 152 ER 588 Davies v Swan Motors Co [1949] 2 KB 291; [1949] 1 All ER 629 Fazlic v Milingimbi Community Inc (1982) 150 CLR 345 Fontaine v Quality Platers (1994) 12 WAR 71 Froom v Butcher [1976] QB 286 Goldsborough v O'Neill (1996) 131 FLR 104 Insurance Commissioner v Joyce (1948) 77 CLR 39 Jones v Livox Quarries Ltd [1952] 2 QB 608 Joslyn v Berryman (2003) 214 CLR 552 Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 O’Connell v Jackson (1972) 1 QB 270 Radley v London and North Western Railway Co (1876) 1 AC 754 Smith v Badenoch [1970] SASR 9 Tuff v Warman (1858) 141 ER 231 University of Wollongong v Metwally (No. 2) (1985) 59 ALJR 481
PARTIES:	Michael Kenneth ACKLAND (Appellant) COMMONWEALTH OF AUSTRALIA (Respondent)
FILE NUMBER(S):	CA 40636/05
COUNSEL:	F M Douglas, QC/ K M Connor/ W D Walsh (Appellant) P Menzies, QC/ S Woods (Respondent)
SOLICITORS:	James Taylor & Co (Appellant) Australian Government Solicitors (Respondent)

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 20078/99
LOWER COURT JUDICIAL OFFICER:	Cooper AJ
LOWER COURT DATE OF DECISION:	29 March 2005, 8 April 2005

CA 40636/05
SC 20078/99

SANTOW JA
IPP JA
McCOLL JA

Thursday 20 September 2007

Michael Kenneth ACKLAND v COMMONWEALTH OF AUSTRALIA

Judgment

1 SANTOW JA:

INTRODUCTION
This appeal relates to a jury trial dealing with a claim for psychiatric injury and economic loss against the Commonwealth, arising from the collision of the HMAS VOYAGER and the HMAS MELBOURNE on 10 February 1964. The trial proceeded before Cooper AJ, and a jury. Liability was admitted leaving only damages in issue. The jury returned a verdict for the appellant, Mr Ackland, a crewmember on the MELBOURNE of 50% of $136,000.00 ($68,000.00). The jury were directed to consider whether there was contributory negligence on the appellant’s part in relation to his claim for post-accident alcohol abuse said to be associated with psychiatric injury. The jury assessed the appellant’s contributory negligence at 50% and reduced the verdict amount accordingly.

2 The appellant challenges that verdict on a number of grounds, essentially directed to the following:

(a) the Commonwealth’s pleaded defence was mitigation and remoteness yet the case as put to the jury was contributory negligence;

(b) the way the jury were directed at trial by reference only to contributory negligence and apportionment under statute not common law; and

(c) contributory negligence in relation to post-accident alcohol abuse was wrongly put to the jury as a statutory not common law defence and on the basis that statutory apportionment was available, when:

(i) it was now common ground on appeal that the statutory defence (under Part IV of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (“the 1965 Act”)) was never available, as it post-dated the collision in February 1964, being the wrong sued upon, and

(ii) common law contributory negligence did not permit of any apportionment of damage but operated, if at all, as an absolute bar to recovery (a proposition disputed by the respondent).


The appellant accordingly seeks either that the verdict be set aside and a new trial ordered, or that the allowance for contributory negligence of 50% be set aside. As I explain below, damages were dealt with at trial, first by the jury and then by the trial judge. In neither the verdict, nor the subsequent judgment was there ever any precise quantification of the appellant’s claim for post-accident alcohol abuse, or the psychiatric injury with which it was said to be associated, the contributory negligence being put as a defence to the former.

3 Thus on 8 April 2005 the trial judge entered judgment in favour of the appellant in the amount of $108,145.00. This was the verdict amount inclusive of interest, as calculated by the trial judge in two judgments (that of 29 March 2005 and a correcting one of 8 April 2005). In doing these calculations the trial judge first took the original verdict of $136,000.00 (before the 50% discount was applied) and apportioned that figure between:

(a) general damages totalling $80,000.00 ($70,000.00 for past general damages and $10,000.00 for future general damages); and

(b) $32,464.00 for economic loss ($30,000.00 for past economic loss and $2,464 for future economic loss).

His Honour then halved each item (for the 50% referred to above) and applied an interest component, thereby reaching the amount of $108,145.00.

4 The basis of these calculations does not appear to have lain in any determinations made by the jury as to the splitting of the lump sum award. The trial judge framed his task as follows: “I have to make a determination consistent with the jury’s verdict as to how much, if anything, was allowed for general damages and how much for special damages” (Red, 108K-N).

5 At trial counsel for the appellant acknowledged that it fell to the trial judge after the jury verdict to apportion damages:

“MELICK: Your Honour has to break it up. Because the jury wasn’t asked to break it up. Juries are given no guidance as to general damages. Therefore to say that is all general damages because it is such a low amount. The jury may have decided to give a very low amount for damages. We just don’t know.” (Black, 1212H-J)

6 On that basis, and “[d]oing the best [he could]” (Red, 108R), the trial judge apportioned damages in the manner outlined above. After delivering his judgment on 29 March 2005, his Honour did acknowledge the lack of precise detail in the process, it being a rough and ready one as his Honour observed:

“HIS HONOUR: That is why I made a rough and ready calculation which I consider appropriate to compensate the plaintiff. I agree one can go into great mathematical [sic], I think it is unnecessary to in the circumstances of this case. That is the way I have decided to compensate the plaintiff.” (Black, 1217T-U).

7 Thus it was that damages were determined by the jury as a lump sum, undifferentiated between psychiatric injury and economic loss. The trial judge then made the limited differentiation set out above. There was still no quantification of the claim for psychiatric injury, or for the alcohol abuse said to be associated therewith, beyond the overall figure for general damages.

8 That lack of quantification, bears on whether the common law of contributory negligence, if able to apply at all, could permit apportionment of damage in the broad-brush way done here, namely a reduction of 50% of the undifferentiated verdict amount.

9 The respondent submitted at trial that the appellant’s post-collision alcoholism (and binge eating) amounted to contributory negligence being self-induced injury, the result of the appellant’s own deliberate choice. The appellant submitted to the contrary, contending that these claims were associated with psychiatric injury (post traumatic stress disorder and depression) which was the result of the accident.

10 The trial judge directed the jury on contributory negligence in the manner I later set out. Subsequent to the jury verdict, but before the trial concluded his Honour, by agreement, then determined the legal effect of the jury verdict. His Honour concluded that the 1965 Act not common law governed apportionment of damages based on contributory negligence, applying what he said were the principles in Commonwealth v McLean (1996) 41 NSWLR 389. It is not disputed on appeal that his Honour was here in error in so concluding. The respondent contends however that the same result arises at common law with the judge’s directions and summing up therefore sufficing, even if not explicitly so based. The appellant contends to the contrary, challenging the directions and summing up as being based on the unavailable 1965 Act.

SALIENT FACTS AND TRIAL PROCESS

11 The appellant was a crewmember of HMAS MELBOURNE on the night of 10 February 1964. That night, HMAS MELBOURNE collided with HMAS VOYAGER on the high seas about 20 miles south-east of Jervis Bay, cutting the latter in two. In the time after the accident, the appellant claimed to have experienced marked psychiatric distress and to have engaged in destructive behaviours in relation to alcohol and food.

12 The appellant filed a statement of claim on 25 February 1999 and an amended statement of claim on 31 January 2005. The essential pleadings were identical in each, alleging negligence on the part of the respondent. Specifically, the appellant alleged negligent conduct by the officers and crew of the HMAS VOYAGER, and/or the officers and crew of the HMAS MELBOURNE, and other officers and servants of the respondent, in relation to the collision. The appellant sought to recover damages for psychiatric injury and associated conditions (excessive drinking, etc as described below) and for economic loss.

13 The appellant sought to particularise that damage in a series of statements of particulars. There was a statement of particulars filed on 19 May 2004, followed by an amended statement of particulars on 11 August 2004 and a further amended statement of particulars on 28 February 2005. At paragraph 1 of the further amended statement of particulars (Red, 50) the appellant alleged that, “as a consequence of the collision between HMAS VOYAGER and HMAS MELBOURNE”, the appellant suffered damage in the nature of chronic mild to moderately severe post traumatic stress disorder [PTSD] and/or moderately severe depression and/or anxiety and, “associated with one or more of these, a severe substance abuse disorder (alcohol)”. At paragraph 2 an extensive list of specific symptoms was provided as to the damage suffered.

14 The appellant alleged at paragraph 2 of the amended and further amended statements of particulars (but not in the original statement) that he also suffered from a nervous eating disorder. This condition had required him to undergo surgery in the form of a laparotomy and gastric banding. In addition, the appellant suffered from gastro-oesophageal reflux and, as a result of his obesity, had developed osteoarthritis in his knees.

15 All three statements of particulars included details (at paragraph 3) concerning the alleged deleterious effects of the appellant’s alcohol abuse and social withdrawal, the abuse being stated to have been “caused by [the appellant’s] psychiatric injuries” and the withdrawal “caused by his injuries”. The abuse and withdrawal were alleged to have had a negative impact upon the appellant’s marital relationship, initially involving separation from his wife and later reconciliation but with “the marriage remain[ing] under constant strain”.

16 The appellant further claimed (at paragraph 4) that his career ambitions had been hampered by his illness. Subsequent to the collision, the appellant “had lost all trust in the Navy, was disillusioned, was continuously anxious and at times, depressed”. This led the appellant not to re-enlist in the Navy after the completion of his initial 12-year term (his stated original intention having been to continue in the Navy for at least 20 years). Hence the appellant was discharged from the Navy on 7 January 1974, allegedly “therefore [losing] a Naval career because of his injuries”. Details were provided at paragraphs 8 and following of the further amended statement of particulars of his history thereafter of both periodic unemployment and employment as a labourer, truck driver, hotel manager and officer with corrective services. The appellant ceased employment generally on 10 September 1997 and has been in receipt of the disability pension since that time.

17 The pleadings so particularised appear to attribute the abuse of alcohol (similarly excessive eating) to the psychiatric injury, and thus indirectly to the collision. It was said that the alcohol abuse was “associated with” his psychiatric injuries [PTSD] which were themselves “a consequence of” the collision.

18 In response to the appellant’s pleadings, the respondent filed an initial defence on 2 November 2001 and an amended defence on 29 October 2004. The amended defence, in particular paragraph 10, is the critical pleading in this appeal. The amended defence relevantly states:

“ CAUSATION
8. Further, the Defendant says the Plaintiff’s alleged injuries, loss and damage, which are not admitted, were not caused or materially contributed to by the collision.
REMOTENESS
9. Further, the Defendant says that, if the Plaintiff did suffer the non-psychiatric injuries as alleged, being substance abuse disorder (alcohol), gastro-oesophageal reflux, obesity, osteo-arthritis, whether or not aggravated by the alleged stress disorder, all of which are not admitted, then these were not caused or materially contributed to by the collision; and
a. were too remote to be a proper basis for recovery of damages; and
b. were of a different kind from that which was reasonably foreseeable.
FAILURE TO MITIGATE
10. Further and in answer to the whole of the Statement of Claim, the Defendant says that if the Plaintiff did suffer the injury, loss and damage alleged, which is not admitted, the Plaintiff had a duty to mitigate his loss and to take all reasonable steps to minimise the effects of those injuries, but did not do so.
Particulars
i. Consuming food and alcohol in excessive quantities;
ii. Consuming alcohol and continuing to consume alcohol when he knew or ought to have known it was injurious to his health;
iii. Consuming food in excessive quantities and continuing to consume food in an excessive amount when he knew or ought to have known it was injurious to his health;
iv. Failing to reduce or at least control his eating;
v. Failing to take reasonable steps to seek advice on and/or heed advice on the injuries alleged to have been suffered; and
vi. Failing to seek treatment or any appropriate treatment when he knew or ought to have known that such treatment was required.”

19 There was no express mention in the respondent’s pleaded defence of contributory negligence either at common law or by statute. The pleaded defence was expressly based on causation, remoteness and mitigation. Yet as the matter was argued at trial, attention was exclusively focused on contributory negligence by counsel on both sides and by the trial judge. Argument on appeal centred on divergence between pleading and argument and as to what in consequence was and should have been put to the jury.

20 At the appeal hearing, the respondent sought to file a further amended defence expressly pleading common law contributory negligence by the appellant, and in the alternative mitigation. The text of the proposed pleading as to contributory negligence under the further amended defence was as follows:

“CONTRIBUTORY NEGLIGENCE
10. Further and in answer to the whole of the Statement of Claim, the Defendant says that if the Plaintiff did suffer any injury, loss and damage alleged, which is not admitted, then the injury loss and/or damage, was caused, or materially contributed to, by the Plaintiff.
Particulars
a. Consuming food and alcohol in excessive quantities;
b. Consuming alcohol and continuing to consume alcohol when he knew or ought to have known it was injurious to his health;
c. Consuming food in excessive quantities and continuing to consume food in an excessive amount when he knew or ought to have known it was injurious to his health;
d. Failing to reduce or at least control his eating;
e. Failing to take reasonable steps to seek advice on and/or to heed advice on the injuries alleged to have been suffered; and
f. Failing to seek treatment or any appropriate treatment when he knew or ought to have known that such treatment was required.”

21 The decision whether to grant or deny leave to file the further amended defence comprises one aspect of this appeal.

The Verdict and Surrounding Matters

22 I turn now to the course of the proceedings below, starting with verdict and the matters immediately surrounding it. At 10.30am on Thursday, 24 March 2005, the jury retired to consider its verdict (Black 1182J). Prior to this, the primary judge summed up to the jury as to the questions it was to consider and answer during its deliberations. These included alleged contributory negligence on the part of the appellant. The primary judge framed his remarks as to contributory negligence relevantly in these two passages:

“Now, the defendant also says – and I referred to this yesterday – that the fact that he drank so much and became an abuser of the substance, even if it was a symptom of a psychiatric illness, was nonetheless contributory negligence on his part; that is, it was an act or a series of acts or conduct in which he failed to take reasonable care for his own welfare.
Now let me just say this about that: contributory negligence is a failure to take reasonable care for one’s own welfare or safety, but it must be what is reasonable in all of the circumstances then existing; and so you have to look at all the circumstances.” (Black 1172F-N)
“The next question you will be asked is “What is the amount of damages?” To that you will respond with the lump sum damages that you have assessed in this case. We haven’t finished yet. There are two more questions.

The next question will be “Was the plaintiff guilty of contributory negligence?” I’ve already explained that to you. If you answer that yes, you will be then asked “By what percentage or fraction do you consider it just and equitable, having regard to the plaintiff’s share in the responsibility for the damage, that the amount of damages ought to be reduced?”
Now, what you then do is if you are satisfied there was contributory negligence on the part of the plaintiff, you then nominate a fraction or a percentage that you think is just and equitable that the damages to the plaintiff should be reduced, having regard to the plaintiff’s share in the responsibility of the damages.” (Black 1181G-R)

23 The above makes no express reference to the 1965 Act, and in particular s10(1). The most it could be said was that the trial judge directed apportionment be considered and used the expression “just and equitable” in relation to apportionment of damages which is to be found in s10(1) of that Act, quoted below:

“10(1) Where any person suffers damages as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage …”

24 This summing up refers to contributory negligence in the conventional common law (or statutory) terms of failure by the appellant to take reasonable care for his own welfare, that is to say failure on his part to protect his person against damage. Contributory negligence is put only in relation to damages, not as whether contributory negligence contributed to the accident itself. That last is wholly understandable. It was never in dispute that the Commonwealth was responsible for the collision, or the accident as such; its negligence was not disputed. Contribution to the accident and contribution to the damage are both categories of contributory negligence at common law as is explained in Astley v Austrust Limited (1999) 197 CLR 1 at 11 [21], discussed later.

25 No ruling was made at that time as to whether contributory negligence under the 1965 Act applied or at common law. This is because one day previously (Wednesday 23 March 2005) an exchange had occurred between counsel and the trial judge. It led to the agreed result that consideration of the legal effect of a jury finding of contributory negligence would be deferred until after the jury had deliberated and returned a verdict. This strategy had been adopted in order to allow the jury to undertake its deliberations prior to Good Friday, which fell on 25 March 2005.

26 The trial judge sets out the relevant parts of the exchange in his post-verdict judgment of 29 March 2005 (Red 99E-101I):

“So that the jury could retire to consider its verdict last Thursday, that is the day before Good Friday, the questions of contributory negligence and the legal effects of a finding of contributory negligence were left for argument and determination until after the verdict had been delivered.
At page 1074 of the transcript [Black 1074] I am recorded as saying,
“One thing I am waiting to hear, and I don’t want to hear you now, is how you are putting the contributory negligence case.”
Mr Jones, on behalf of the defendant said,
“A similar thing occurred in McLean v the Commonwealth, where the issue was not alcohol, principally, but smoking, and the Court of Appeal specifically held it is a matter that should have gone to the jury in terms of the contributory negligence.”
At page 1075 [Black 1075] Mr Melick on behalf of the plaintiff pointed out,
“There is a problem with contributory negligence, but it probably has to be left. One has to bear in mind, of course, the evidence in relation to alcohol is that it is used for self medication, whereas cigarettes weren’t. It was not a question of self medication in McLean.”
At page 1075 I noted,
“Incidentally, if the jury were to find contributory negligence, what do you say is the consequence of that? There is a pro rata – that they assess an amount by which it should be reduced or it is a complete defence in view of the fact that the 1995 [sic] Law Reform (Miscellaneous Provisions) Act came into force on 1 January 1966.”
I also said,
“I am going to leave it to the jury and then we can argue. If they find contributory negligence I will get them to assess a proportion and then we will argue it afterwards, what the legal effect of that is. Let’s not worry about it now,”
Mr Jones, Senior Counsel for the defendant, said,
“We are happy enough with that course, they are all that we have at this stage.”
…
In the absence of the jury on the second day of the summing-up Mr Melick said,
“Your Honour, there are two very brief matters. The Law Reform (Miscellaneous Provisions) Act was amended after the decision of McLean and the provisions in relation to contributory negligence are slightly different. At first blush it may have an effect. I am not sure, and I submit that the appropriate thing to do is not to change it in relation to the charge with the jury, and that is a matter we can raise with your Honour later when the jury has returned its verdict.”
I said,

“I think it is the most time effective course to take, everybody’s rights are reserved.” As I mentioned earlier, the jury did return a verdict which included a finding of contributory negligence and an apportionment of 50 per cent.”

27 In that judgment of 29 March 2005, the trial judge then set out to deal more definitively with the deferred legal issues (Red, 101J-107J). The first question his Honour set out to determine was the applicability and scope of the provisions of the 1965 Act, particularly s10(1), to this case. Having considered the decision of the Court of Appeal in McLean and having considered himself bound by that decision (Red, 105Q-S), the trial judge set out to summarise and follow the principles said to arise from McLean (Red, 105D-P):

“1 Acts of negligence on the part of the plaintiff subsequent to the negligent acts of the defendant sued upon and which merely aggravate or increase his injuries and losses can constitute contributory negligence within the meaning of the Law Reform (Miscellaneous Provisions) Act 1965.
2 The provisions of that Act apply even though the negligence [sic] acts and/or omissions giving rise to the event which caused the plaintiff’s injuries occurred before 1 January 1966.
3 The effects of a finding by the jury of contributory negligence and the apportionment of damages are those prescribed in the Law Reform (Miscellaneous Provisions Act) [sic] 1965 and not the law as it stood as at 10 February 1964.”

28 The trial judge in reliance on McLean thus concluded that the 1965 Act had retrospective effect to the events of 10 February 1964 so far as contributory negligence was concerned, with the consequence that damages were to be apportioned on that basis.

29 On the basis of that conclusion, the trial judge considered next certain submissions made by the plaintiff (appellant) that the common law of contributory negligence did not extend to “the negligence of the plaintiff occurring after the alleged negligence of the defendant and which is claimed merely to increase the damages flowing from that negligence of the defendant” (Red, 105W-106C). The trial judge appeared to consider that the binding nature of the decision in McLean took care of such questions.

30 The trial judge did, however, provide an indication as to how the proceedings would have been viewed had his Honour not considered McLean binding upon him. The trial judge appeared by his analysis (at Red, 106L-107J) to consider that the common law would then have applied to the proceedings, rather than the provisions of s10(1) of the 1965 Act. His Honour considered that, prior to the 1965 Act, the common law regarded as contributory negligence, “a negligent act or omission of the plaintiff which was proximate to the negligent act or omission of the defendant and which contributed to the event or events which caused the plaintiff’s damage. It would not have extended to subsequent acts or omissions of the plaintiff which unreasonably and unforeseeably increased the plaintiff’s injuries and losses” (Red, 106N-S). In that event, the trial judge would not have directed a jury to consider contributory negligence, rather the jury “would have been directed that the plaintiff was under a duty to mitigate his damages” (Red, 107F-G). This direction, the trial judge considered, could well have produced the same result from the jury (Red, 107G-I).

31 I observe three things at this point. First, while it is true that contributory negligence in relation to the accident would need to be proximate to it, if it was to have any relevant causal effect, contributory negligence in relation to the damage would be expected to be proximate rather to the relevant item of damage. (I put to one side damage having long latency such as mesothelioma where specific considerations apply.)

32 Second, this shows that the trial judge did not see himself as having given any direction or summing up concerning mitigation as distinct from contributory negligence. Nonetheless like the person in Molière’s play, “Le Bourgeois Gentilhomme” who spoke prose without knowing it, to the extent mitigation is a subset of the wider category of contributory negligence (see [97]-[98]) the same directions will be appropriate.

33 Third, by referring to acts or omissions of the plaintiff, post-collision, which “unreasonably and unforeseeably increased the plaintiff’s injuries and losses” his Honour was thereby correctly and conventionally ruling these out as incapable in damage terms to be sheeted home to the defendant being classically contributory negligence on the part of the plaintiff going to damage, not the accident. In doing so, his Honour was drawing on the touchstone of reasonableness, common to both mitigation and contributory negligence whether at common law or statute.

The appellant’s challenge

34 It is principally with the above sequence of directions, and determinations made by the trial judge that the appellant takes issue on appeal. The appellant submits that:

(a) the trial judge wrongly allowed the defence of contributory negligence to be put to the jury;

(b) the 1965 Act was not applicable to the earlier events;

(c) the trial judge should have ruled that the jury’s finding of contributory negligence was insupportable in law and should be disregarded; and

(d) mitigation, though pleaded, was never argued and so could not be taken into account.

35 The appeal was originally undertaken on eight separate grounds pursuant to a Notice of Appeal filed on 8 August 2005. By an Amended Notice of Appeal, filed without objection at the appeal hearing of 14 February 2007 (appeal transcript T3.33-37, T30.51), four of those grounds were removed from consideration and a further ground amended in certain respects. The Cross-Appeal initially pursued by the respondent had been abandoned by the time of the appeal hearing (see appeal transcript T20.38-43, T42.39-40, 51). The appeal is thus concerned with the following matters (as under the Amended Notice of Appeal):

“5. His Honour erred by directing the jury that they could find contributory negligence on the part of the appellant when such a defence was not pleaded at any time by the respondent.
6. His Honour erred by directing the jury that they could find contributory negligence on the part of the appellant despite the fact that his actions in no way contributed to damage or injury of the plaintiff as pleaded.
7. His Honour erred by failing to rule that the jury’s finding of contributory negligence was not sustainable in law and should be disregarded.
…
10. The appellant seeks leave to reargue the principle in McLean v Commonwealth 41 NSWLR 239 re contributory negligence post the tort.”

36 The orders sought by the appellant on appeal are that the appeal be allowed, that the contributory negligence “discount” of 50% to the judgment sum awarded by the jury be set aside, and costs. In the alternative, the appellant seeks a new trial.

The earlier conduct of the trial

37 In what follows, I deal so far as relevant with the earlier conduct of the trial before the earlier quoted summing up and how the parties in submission dealt with the issue of contributory negligence and related matters. As the record shows, the case was conducted below by both sides on the basis that contributory negligence from excessive alcohol consumption bore on the claim for damages. Much of the debate was on causality; did the drinking result from the accident or independently of it from the appellant’s own positive choice.

38 It was brought to the trial judge’s attention on Monday, 21 March 2005 (day 15 of the trial) by Mr Jones (counsel below for the respondent) that there was “an issue about contributory negligence … pleaded specifically in relation to the consumption of alcohol”, and concerning which the trial judge would need to direct the jury (Black, 993H-I). The trial judge conceded at that time that he had overlooked that point completely and that it would be necessary to explain those matters to the jury (Black, 993J).

39 On Tuesday, 22 March 2005, the manner in which the contributory negligence argument was to be put by the respondent had not been specified (Black, 1074K-L):

“[HIS HONOUR:] One thing I am waiting to hear – and I don’t want to hear you now – is how you are putting the contributory negligence case. I am sure Mr Coleman [also counsel below for the respondent] will enlighten me in due course.”

40 Mr Jones informed the trial judge once again that it would be put specifically in relation to the appellant’s consumption of alcohol, drawing the following response from His Honour (Black, 1074N-O):

“It just seemed to me that if the alcohol is a consequence of the collision, it is a bit hard to see how it could be contributory negligence, and if it is not a consequence of the collision, then he gets no damages for it.”

41 Reference was made at that time to the decision in McLean. The trial judge observed that, in accordance with that decision, the matter of contributory negligence by reason of the appellant’s alcohol consumption was to be left to the jury (Black, 1074P-T). Shortly thereafter (Black, 1075W-1076D), the more specific issue was raised by the trial judge as to the correct legal regime to be applied to any question of contributory negligence. In particular, the issue was whether the provisions of the 1965 Act applied so as to enable an apportionment of liability by the jury, or whether instead the common law applied, with the trial judge suggesting that any successful argument of contributory negligence afforded the respondent a complete defence (at least in relation to those aspects of the appellant’s claim relating to alcohol consumption). Mr Jones indicated this was something to which the respondent would have to turn its mind (Black, 1076E, I). In the event the trial judge determined the following course (Black, 1076J-K):

“I am going to leave it to the jury, and then we can argue. If they find contributory negligence, I will get them to assess a proportion and then we will argue it afterwards, what the legal effect of that is. Let’s not worry about it now.”

42 Mr Melick (counsel below for Mr Ackland) made no comment at that time concerning that course of action. The trial judge later affirmed that he would be seeking guidance from counsel as to contributory negligence, having agreed that the matter should be left to the jury, but not having determined precisely how it should be left (Black, 1093C-I).

43 These passages are important. They demonstrate an awareness on all sides, prior to addresses by counsel to the jury and the summing up of the trial judge, that issues in relation to contributory negligence were up in the air, and that it lay to a large extent in counsel’s hands to provide guidance to the trial judge as to how contributory negligence should properly be framed before the jury.

44 Later on 22 March 2005, Mr Coleman for the Commonwealth addressed the jury. The relevant part of his submissions (extracted below), was directed at that part of the appellant’s conduct said to have been relevant to the contributory negligence defence. It was directed more towards questions of causation, to the effect that the collision did not lead to the drinking and obesity because the former at least was the result of deliberate and conscious decision (Black, 1098H-Q):

“If, after all of that, you come to award the plaintiff some damages – and again, it is up to you as to how much and how you do it – the Commonwealth says that you have to take into regard the plaintiff’s own conduct following the collision in what’s called contributory negligence, and particularly in relation to his drinking, members of the jury.
I took you briefly to the evidence that he drank because he enjoyed it. He enjoyed drinking more than he enjoyed giving it up. He knew, when he continued to drink, that it potentially had an adverse impact on his health. He didn’t consider himself to be addicted to the alcohol.
It smacks, I want to suggest to you, of someone who had deliberately and consciously chosen to undertake that course of conduct over the years, and it may be the same with his obesity. You will need to find, if you link the obesity to the collision, that it was because of the collision that he either drank too much and got fat or ate to [sic] much, or whatever. There may be other reasons. Without being unkind, there may be a family history of obesity and poor diet, and these are matters you might want to take into account. You saw his daughter as well.”

45 Mr Melick (for Mr Ackland) sought to counter that submission as to causation in his own address to the jury. Significantly though, he did not seek to disturb the assumption that contributory negligence was available to be put to the jury, including in the form of the 1965 Act. He sought to accommodate that by attributing the drinking to Mr Ackland’s distressing memories of the collision. He stated relevantly as follows (Black, 1111P-V):

“In relation to contributory negligence. Ladies and gentlemen, I have a little bit of difficulty with that. The Commonwealth’s position is that he contributes to his own problems at the moment because he had a choice whether to drink or not, but he continues to drink.
Mr Ackland demonstrated some will power – he managed to stop smoking, but he can’t stop drinking. He’s not an alcoholic, in a general sense. He’s not a person that has to get out of bed and start drinking straightaway … He’s a person that drinks to forget his distressing memories. He’s a person that drinks to get some peace of mind and to help him to get to sleep.
Do you really think he has much choice as to whether he drinks or not?”

46 It was submitted by the appellant on appeal that these observations were properly to be characterised as causation-related (see appeal transcript T12.2-.3). Earlier, Mr Melick had already foreshadowed in submissions before the trial judge that the attitude of the appellant to the contributory negligence argument would be to argue, on the basis of the supporting evidence of a Professor McFarlane, that the appellant’s alcohol consumption, as a form of self-medication in this case, did not involve the exercise of positive choice on the part of the appellant (Black, 1075C-H).

47 Such had been the manner in which counsel themselves had put the matter before the jury. It is significant to note that, at this point, all appeared to proceed on two (ultimately incorrect) assumptions, namely:

(a) that contributory negligence had been pleaded; and

(b) that the 1965 Act applied.

48 On Wednesday, 23 March 2005, the trial judge gave directions to the jury concerning contributory negligence. It is useful to quote the relevant parts in full in order to demonstrate the precise nature of their framing (Black, 1153H-1154O):

“The plaintiff alleges that amongst the symptoms of the psychiatric illness he suffered was an associated alcohol abuse. In other words, he was so affected by the trauma of the collision that he, in effect, self-medicated and used alcohol as a means to enable him to get to sleep and to relieve him of the memories of what he had seen on that night of 10 February. It is a question of fact for you to decide whether you accept that, but the defendant says that, first of all, it was not a psychiatric illness caused or materially contributed to by the collision; it was, in fact, a self-induced condition caused by the plaintiff’s own conduct, and by continuing to drink, when he ought to have been aware, or was in fact aware, that drinking alcohol to excess was not doing his health any good, he was failing to take reasonable care for his own safety. In other words, that he was guilty of contributory negligence .
The onus of proving that the plaintiff was guilty of contributory negligence is upon the defendant; it is not on the plaintiff to negate it. Of course, the plaintiff’s case, in a nutshell, is, “Yes, I was drinking a lot, I was drinking heavily, but that was to help me overcome the effects of the depression, the anxiety, the stress disorder which I suffered as a result of the collision.” The defendant says, “Well, no, you were drinking in a way that you, with the exercise of reasonable care, ought to have known was harmful to you, therefore, you are guilty of contributory negligence.
Now, if you do find that the plaintiff was guilty of contributory negligence, I will ask you to nominate, by way of a percentage or fraction, the extent to which you consider it just and equitable, having regard to the plaintiff’s share in the responsibility for the damage, that the amount of damages ought to be reduced , but, of course, you do not get to contributory negligence unless you are satisfied on the balance of probabilities that the plaintiff suffered a psychiatric injury as a result of the collision between the two vessels.” [emphasis added]

49 No objection was made to these directions. They were framed by reference to contributory negligence and quite possibly with the 1965 Act in mind (see the emphasised sections in the third extracted paragraph). But it does not follow that the directions were inappropriate for common law negligence. The appellant on appeal (appeal transcript T12.5-T14.9) argued that the emphasis was principally if not exclusively on causation. However, while causality was covered, reference was clearly being made to contributory negligence. This was in the common law sense of “failing to take reasonable care for his own safety”, by reason of his excessive drinking.

50 Reference was made also to these comments by the trial judge in his judgment of 29 March 2005 concerning contributory negligence issues (Red, 98O-U, extracted earlier above):

“The defendant alleges that the plaintiff’s excessive consumption of alcohol and/or food since February 1964 to the present caused him to suffer further injuries which were not the consequence of the collision . It is further alleged that such conduct amounts to negligence on the part of plaintiff which has contributed to his damages.” [emphasis added]

51 Again this is in relation to damages, not in relation to the accident per se. The trial judge did seek guidance from counsel in the absence of the jury as to foreseeability. Thus at Black, 1163V-1164D:

“What I want to know is exactly what you [the Commonwealth] want me to put to the jury. That’s what I am trying to write down. So I have “The Commonwealth accepts the psychiatric injury was a foreseeable result of the collision, but it does not accept that the alcohol abuse or the eating disorder was a reasonably foreseeable consequence of the collision”?”

52 Mr Coleman confirmed that had been his intended position (Black, 1164D-E). His Honour’s eventual direction to the jury concerning foreseeability (as well as causation) (made next day on 24 March 2005) comprised the following (Black, 1170N-1174C). The excessive consumption of alcohol and eating disorder was put to be considered by the jury as “a symptom of psychiatric illness”, in terms of contributory negligence (“an act or series of acts in which he failed to take reasonable care for his own welfare”, or “welfare safety”). Again no reference is made to contributory negligence in relation to the accident itself. The direction continued in these terms:

“Now, another matter I wanted to go to was the question of what I said to you, that the consequences of the accident have to be reasonably foreseeable; that is, the consequences quoted by the plaintiff. I put something to you yesterday which was pointed out to me was not quite correct, and I want to correct it.
The Commonwealth accepts that psychiatric injury is a reasonably foreseeable result of the collision, but it does not accept that the alcohol abuse or the eating disorder was a reasonably foreseeable result of the collision.
Now, let me just say something about that, and it brings us to this whole question of alcohol or substance abuse. Professor MacFarlane [sic] said in his evidence – page 539:
“Having given relevant weight to the history I obtained from the documents that were placed before me, it was my view that he suffered from post-traumatic stress disorder, recurrent panic attacks with agoraphobia, recurrent major depressive disorder and alcohol abuse.”
Now, that is correct; that someone who abuses alcohol, of itself, with nothing else, is not a psychiatric injury. You’ll notice there that the professor has given not just one but a number of psychiatric illnesses which he says the plaintiff suffers; post-traumatic stress disorder, recurrent panic attacks with agoraphobia, recurrent major depressive disorder and alcohol abuse.
Now, as I said, alcohol abuse, alone, is not a psychiatric disorder. But if you are satisfied on the balance of probabilities that the plaintiff suffered any one of those psychiatric illnesses that Professor McFarlane referred to, and that it was a consequence of the collision, then the plaintiff would be entitled to succeed and have you assess damages for that.
Now let me just explain this, going into that question of alcohol abuse and eating disorder. What the plaintiff says, or his claim is, is that alcohol abuse, of itself, may not constitute a psychiatric illness, but in this particular case it was a symptom of a psychiatric illness; that it was a symptom which was suffered because the plaintiff used alcohol to dull or quash the memories of the incident and/or to allow him to get some extra sleep.
And it’s put to you – and Professor McFarlane gave evidence to the effect – that that type of use of alcohol to dull the effects of a nervous or a psychiatric problem is not uncommon and, indeed, is what has happened in this case – that it is a reasonably foreseeable symptom of a psychiatric illness.
Now, the defendant also says – and I referred to this yesterday – that the fact that he drank so much and became an abuser of the substance, even if it was a symptom of a psychiatric illness, was nonetheless contributory negligence on his part; that is, it was an act or a series of acts or conduct in which he failed to take reasonable care for his own welfare.
Now let me just say this about that: contributory negligence is a failure to take reasonable care for one’s own welfare or safety, but it must be what is reasonable in all of the circumstances then existing; and so you have to look at all the circumstances.
I suppose, in an ideal world, in an ideal situation, if a person realised he was unable to sleep, realised that he was having memories and flashbacks and nightmares of an incident, he or she would go to the doctor, be referred to a psychiatrist, and be prescribed treatment in the form of prescription drugs or other form of therapy – in an ideal situation.
But we’ve got to look at the situation that existed back at that time, in the 1960s and ‘70s, of this particular plaintiff. He was there, well down in the totem pole of the hierarchy in the Navy. He was, at the time of the collision, 18. He didn’t realise, he said, that what he was experiencing was a psychiatric problem. He did what his mates did – went out and drank to relieve the symptoms. That’s his case.
So, it’s put to you that in the circumstances then existing, his drinking or excessive eating was not a failure to take reasonable care on his part in the circumstances in which he found himself. You see, it may well be that he’s told us, and he told other people, that he drank because of peer pressure. That’s one of the possible reasons.
Another possible reason is that he drank because he liked the effects of it, or liked drinking. But what’s put to you on behalf of the plaintiff is that may be some of the reasons, but the material contributing factor was the psychiatric illness which he suffered which caused him to like the affects [sic] of the alcohol on him, or led him to take alcohol, and which caused him to succumb to peer pressure; that being a materially contributing cause of his consumption of alcohol, he says, was the fact that he suffered from a psychiatric illness which, in the circumstances then existing, he didn’t appreciate as an illness, and so he used what everybody used, namely alcohol to dull.
Now that’s what he says, and that question of whether you are satisfied or whether the defendant has satisfied you in all the circumstances that his conduct in drinking to excess was contributory negligence, was a failure to take reasonable care on his part. That’s something you will have to determine .” [emphasis added]

53 The trial judge and Mr Melick had engaged shortly before in the following exchange in the absence of the jury, which serves to highlight most clearly the attitude adopted to the legal questions regarding contributory negligence (Black, 1166K-O):

“MELICK: Your Honour, there are two very brief matters. The Law Reform Miscellaneous Provisions Act [sic] was amended after the decision of McLean, and the provisions in relation to contributory negligence are slightly different. At first blush it may have an effect. I am not sure and I submit that the appropriate things to do is not to change anything in relation to the charge with the jury, and that’s a matter that we can raise with the jury, and that’s a matter that we can raise with your Honour later, when the jury has returned it’s verdict.
HIS HONOUR: I think that’s the most time-effective course to take. Everybody’s rights are reserved .” [emphasis added]

54 The appellant submitted on appeal (see appeal transcript T15.23-25) that these comments of the trial judge were indeed to be understood to mean that rights were reserved specifically in relation to the issue of contributory negligence, a reading that I consider justified.

55 After making various comments to the jury concerning medical evidence and the assessment of damages (Black, 1174ff), which are not relevant to the issues on this appeal, the trial judge came to explain the specific questions the jury would be asked to answer on the basis of its deliberations. These remarks were referred to by the trial judge in his earlier quoted judgment of 29 March 2005, and I quote them verbatim below (Black, 1180S-1181U):

“Now, when you come back your foreperson will be asked to stand. He or she will be asked “Have you agreed upon your verdict?” The significance of that question is that your verdict has to be unanimous. The he or she will be asked “How do you find; for the plaintiff or for the defendant?” As I mentioned to you earlier, you find for the defendant only if the plaintiff has failed to satisfy you, on the balance of probabilities, that the collision caused or materially contributed to a psychiatric injury which he suffered.
If you find for the defendant, there’ll be no further questions. The next question you will be asked is “What is the amount of damages?” To that you will respond with the lump sum damages that you have assessed in this case. We haven’t finished yet. There are two more questions.
The next question will be “Was the plaintiff guilty of contributory negligence?” I’ve already explained that to you. If you answer that yes, you will be then asked “ By what percentage or fraction do you consider it just and equitable, having regard to the plaintiff’s share in the responsibility for the damage, that the amount of damages ought to be reduced ?”
Now, what you then do is if you are satisfied there was contributory negligence on the part of the plaintiff, you then nominate a fraction or percentage that you think is just and equitable that the damages to the plaintiff should be reduced, having regard to the plaintiff’s share in the responsibility of the damages. Your answer could then be, if you find contributory negligence, 5 per cent, 95 per cent, anything like that. Please don’t take those figures as being what I tell you they should be. I’m just taking them out of the air.” [emphasis added]

56 The jury retired, deliberated and then returned its verdict on liability and contributory negligence apportioning damages at 50%. It then came time for counsel and the trial judge to consider the deferred legal issues relating to contributory negligence. This they undertook at some length (see generally Black, 1192-1217), with challenges being made by counsel on either side concerning various disparate unresolved points. Key parts of the discussion are extracted below.

57 The trial judge commenced by stating a preliminary position that, on his Honour’s reading, the decision in McLean was binding, such that the 1965 Act applied (Black, 1192I-J). In the ensuing discussion, concerned in substance largely with the correctness or otherwise of that position, it emerged that Mr Jones for the respondent, considered the position to be the opposite, namely that the common law applied. He tendered written submissions (Black, 1199H) on the issue of contributory negligence, paragraph 6 of which read relevantly:

“6. … because the wrong here occurred in 1964, before the commencement of Part III of the Act, the old common law position applies and, subject to further legislative amendment, contributory negligence is a defence to the plaintiff’s claim.”

58 Later amendments to the 1965 Act under the Law Reform (Miscellaneous Provisions) Act 2000 (NSW) (“2000 Act”) were considered by the respondent not to alter the position. By virtue of the operation of the savings and transitional provisions of the 2000 Act, it was submitted that at common law a complete defence for contributory negligence remained the correct formulation in the present case (see paragraphs 7-11). The following exchange between the trial judge and Mr Jones makes clear the position ultimately adopted by the defendant after the jury had delivered its verdict (Black, 1201M-1202U). It was that, at the relevant time, contributory negligence at common law applied and was a complete defence, submitting that the common law did not provide for apportionment. No distinction was drawn between contributory negligence in relation to the accident as compared to contributory negligence in relation to damage.

“[JONES:] We know that the 1965 Act which commenced on 1 January 1966 does not apply because the collision occurred before the commencement, so we are back in the position whereby if there is a finding of contributory negligence, then there should be a verdict for the defendant because the 1965 legislation does not apply .
HIS HONOUR: Well, the only thing against you is that the Court of Appeal has said to the contrary.
JONES: I don’t know if they have said the contrary. I understand what your Honour is saying. What they said, and this is at page 3978 [sic] of McLean, 41, NSWLR. We can hand up a copy if your Honour ignores the highlighting, but it is a photocopy of that decision. The relevant part is at page 398, your Honour.
HIS HONOUR: Under the heading Contributory Negligence Available in Law.
JONES: Mr Joseph argued, counsel for the plaintiff in the case, “That the proposed defence was misconceived… contributory negligence.” This is the same argument that Mr Melick advanced before you today.
HIS HONOUR: It did not mention anything about retrospective operation. It doesn’t seem that he argued that the Act was not in force as at 1964. There is nothing in the judgment to indicate the Court even looked at that question .
JONES: We say it matters not in any event because what your Honour has to consider is whether contributory negligence, that the consent of the plaintiff through his drinking contributed to his injury, was available. That does not depend on whether or not the 1965 legislation applied . Whether it applied.
HIS HONOUR: It might well do the way that contributory negligence was considered to exist pre 1965 was different to what was looked at afterwards, pre 1965. It was negligence that contributed to the event giving rise to the cause of action, negligence which might subsequently, negligence that might aggravate an injury that was dealt with separately, not as contributory negligence, but as either a matter of failure to litigate or as breaking the chain of causation.
JONES: We say looking at this decision, just dealing with that concept, when the Court of Appeal looked at it, true it is they looked at The Law Reform Miscellaneous Act 1965 [sic], in particular s10. That may be because their attention was not drawn to section 8, and I am not sure when the proceedings were actually filed.
HIS HONOUR: Section 8 is no longer considered in 1965, in the Act, once they look at the general law as to whether these provisions can operate retrospectively. I have some difficulty about that.
JONES: We say that the law to be applied is no different before the Act, that is the 1965 Act to after the Act .
HIS HONOUR: The law of what ?
JONES: The law in relation to the contributory negligence, with the exception of the effect .
HIS HONOUR: You are saying that the definition of contributory negligence was the same before 1965 as afterwards .
JONES: We say the principles .
HIS HONOUR: Which principles? This is where all the confusion arises .
JONES: We say the principles that if the actions of the plaintiff contributed to his damage it matters not whether that occurred, when one looks at the consideration of those principles in 1965 or 1966 .” [emphasis added]

59 The trial judge and Mr Jones continued to discuss the precise interrelation of McLean with the question of the differences, if any, in the basic principles of contributory negligence pre and post the 1965 Act. What emerged after the jury verdict, was thus a forensic decision by the respondent to argue for the complete common law defence based on contributory negligence as opposed to apportionment under the 1965 Act being available.

60 On Mr Jones’ construction, the only difference between the two regimes was the effect of any finding of contributory negligence; otherwise the principles remained the same. He asserted that a finding by the jury of contributory negligence with apportionment under the 1965 Act had the legal result that the verdict of contributory negligence stood, but that its legal consequence was not apportionment but entire defeat of the plaintiff’s claim, by reason of his common law contributory negligence found by the jury.

61 Objection was taken on appeal (see appeal transcript T21.34-48, T22.42-57) to the manner in which the respondent thereby appeared to have changed tack in its argument before and after the jury’s deliberations. First the respondent acquiesced, it was said, in the trial judge’s summation based on the 1965 Act, then sought to argue for the complete defence. By the time the jury had returned its verdict, it was submitted, it was simply too late to put the complete defence, it being the duty of counsel to put all the available arguments then, so available to be considered after the jury’s deliberation. Mr Jones was submitted to have made a forensic decision, comprising a deliberate choice (though not made with misleading intention) to opt for the 1965 Act to be put to the jury by trial judge, rather than the complete defence (see appeal transcript T20.57-T21.10, T22.5-14, T23.1-8).

150 The question arises: what orders should, in consequence, be made? I recognise that it is generally undesirable to order a retrial on all issues, but I see no alternative in this case. The problem is that there was no assessment of the amount of each category of damages awarded. Should the appellant succeed in either of the arguments (relating to mitigation, or alternatively, the limited application of contributory negligence) which he would be entitled to advance, it would not be possible to determine what the effect of that success would have on the global sum of damages assessed. Thus, not only must the issues of mitigation and contributory negligence be retried, but also the respective categories of damage claimed must be assessed.

151 I propose the following orders:

(a) Appeal upheld.

(b) Judgment and verdict given below be set aside.

(c) The case be remitted to the Common Law Division for retrial.

(d) The respondent to pay the appellant’s costs of the appeal.

(e) The costs of the first trial be reserved for the judge hearing the retrial.

152 McCOLL JA: I have had the benefit of reading the reasons to be published by Santow JA.

153 His Honour has set out the three questions which arise on the appeal. As his Honour’s careful analysis of the progress of the trial makes plain, the case went to the jury on the basis that the respondent had pleaded a case of contributory negligence on the part of the appellant in relation to his post-collision alcoholism and binge eating, the respondent arguing that they amounted to a self-induced injury.

154 Although the respondent had not pleaded contributory negligence, the trial was conducted on the premise that contributory negligence was a live issue. The trial judge so directed the jury without complaint from either counsel, in particular counsel for the appellant. The appellant was bound by the manner in which his counsel conducted his case. The issue of contributory negligence had been fully explored in the evidence. There was no complaint by the appellant that he was caught by surprise in any respect in the matter being put forward to the jury. I agree, therefore, that the trial did not miscarry because the jury was directed to consider the issues relating to contributory negligence.

155 As to the second question I agree, too, with Santow JA’s conclusion that the trial judge erred in concluding that Commonwealth of Australia v McLean (1996) 41 NSWLR 389 meant that the defence of contributory negligence pursuant to the Law Reform (Miscellaneous Provisions) Act 1965 applied.

156 I would merely add that it was common ground on appeal that the amendments effected to the 1965 Act by the Law Reform (Miscellaneous Provisions) Amendment Act 2000 did not apply to the appellant’s proceedings, they having been pending at the time the 2000 Act was passed.

157 As to the third question, I agree with Ipp JA that the directions as to contributory negligence were not in accordance with the law and, accordingly, nor was the verdict and that there should be a retrial. I also agree with his Honour’s reasons for so concluding and the orders his Honour proposes.

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