Chu v Russell

The case of *Chu v Russell* involved an appeal to the Full Court of the Supreme Court of Tasmania concerning a collision between a motor vehicle and a bicycle. The respondent, the cyclist, had diverged from the left edge of his lane into the path of the appellant's vehicle, which was travelling behind him. The trial judge had found both parties to be at fault, attributing 30% of the contributory negligence to the cyclist.

The primary legal issue before the Full Court was whether the trial judge's discretionary decision to reduce the respondent's damages by 30% for contributory negligence was reviewable on appeal. This involved considering the application of section 45(1) of the *Supreme Court Civil Procedure Act*, which sets strict limitations on appeals from discretionary judgments. The court also had to determine if the trial judge had erred in her assessment of the respective degrees of fault of the cyclist and the motorist.

The Full Court reasoned that a trial judge's apportionment of damages for contributory negligence is a discretionary decision that is not lightly reviewed. However, such a decision can be reversed or varied if the judge has proceeded on a wrong principle, used irrelevant or insufficient materials, misapprehended facts, or made an erroneous finding of fact or law. The court examined the trial judge's reasons, which highlighted the motorist's excessive speed and inattention in close proximity to vulnerable cyclists as a substantial departure from the required standard of care. Conversely, the cyclist's failure to look before diverging and crossing the lane without signalling was also identified as a significant departure. Despite acknowledging the cyclist's fault, the Full Court concluded that the trial judge's 30% apportionment did not adequately reflect the gravity of the motorist's conduct.

Consequently, the Full Court allowed the appeal, setting aside the determination that the respondent's damages be reduced by 30%. A substituted determination was made, reducing the respondent's damages by 50%, reflecting a higher degree of contributory negligence attributed to the cyclist than initially found by the trial judge.