Ackland v Commonwealth of Australia

The appeal in *Ackland v Commonwealth of Australia* concerned a collision between HMAS Voyager and HMAS Melbourne in 1964, which resulted in the plaintiff, a crew member, bringing an action in negligence against the Commonwealth. The plaintiff claimed damages for injuries sustained, including subsequent psychiatric injury and associated alcohol abuse and binge eating. The defendant alleged contributory negligence on the part of the plaintiff, arguing that his alcohol abuse was self-induced and not caused by the accident. A jury assessed the plaintiff's contributory negligence at 50% of the overall verdict.

The central legal issues before the Court of Appeal were whether the trial judge's directions to the jury were erroneous, potentially requiring a new trial, and whether the trial judge had erred in subsequently determining that section 10(1) of the *Law Reform (Miscellaneous Provisions) Act 1965* (NSW) applied to require an apportionment of damages. This latter issue arose because the events giving rise to the claim pre-dated the commencement of the 1965 Act.

The Court of Appeal found that the trial judge's directions to the jury were flawed, particularly in circumstances where the jury had not been asked to quantify the damage attributable to the psychiatric injury or the alcohol abuse. Furthermore, the judge's subsequent application of the 1965 Act was incorrect, as the Act was not in force at the time of the events in question. The Court reasoned that the common law position regarding contributory negligence, which did not permit apportionment of damages in the same way as the 1965 Act, should have been applied.

Consequently, the Court upheld the appeal, set aside the judgment and verdict of the first trial, and remitted the case to the Common Law Division for a retrial. The respondent was ordered to pay the appellant's costs of the appeal, with the costs of the first trial reserved for the judge hearing the retrial.