HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY AND CALLINAN JJLIFTRONIC PTY LIMITED APPELLANT
AND
EROL UNVER RESPONDENT
Liftronic Pty Limited v Unver [2001] HCA 24
3 May 2001
S102/2000ORDER
1.Appeal allowed.
2.Set aside the Orders of the Court of Appeal of the Supreme Court of New South Wales made on 7 February 2000.
3.Remit the matter to the Court of Appeal for determination, in accordance with the reasons for judgment in this Court, of the nett amount for which judgment should be entered, and of the question of costs in that Court.
4.Respondent to pay the costs of the appeal to this Court.
On appeal from the Supreme Court of New South Wales
Representation:
B M J Toomey QC with P J Mooney for the appellant (instructed by Vandervords)
B J Gross QC with H N Kelly and S Thode for the respondent (instructed by Gibsons)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
GLEESON CJ. The issue in this appeal is whether the Court of Appeal of New South Wales erred in setting aside, as perverse, a jury's apportionment of responsibility between plaintiff and defendant in a case where there was an admittedly justifiable finding of contributory negligence.
In Podrebersek v Australian Iron and Steel Pty Ltd, this Court said[1]:
"A finding on a question of apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds' … Such a finding, if made by a judge, is not lightly reviewed. The task of an appellant is even more difficult when the apportionment has been made by a jury."
[1](1985) 59 ALJR 492 at 493-494; 59 ALR 529 at 532 per Gibbs CJ, Mason, Wilson, Brennan and Deane JJ.
I agree with McHugh J that, having regard to the manner in which the case was conducted and left to the jury at trial, it is not possible to say that it was unreasonable for the jury to place the responsibility on the plaintiff to the extent found, and to make the apportionment that they made.
I agree that the appeal should be allowed and the proceedings remitted to the Court of Appeal as proposed by Gummow and Callinan JJ.
McHUGH J. The issue in this appeal is whether the Court of Appeal of New South Wales (Mason P and Brownie AJA, Meagher JA dissenting) erred in setting aside a jury's finding that the plaintiff was 60 percent responsible for the damage that he suffered as the result of his and his employer's negligence. The majority held that 20 percent was "as high a percentage as might reasonably have been found". In my opinion, the Court of Appeal erred in setting…
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- Case
- [2001] HCA 24
- Decision Date
CaseChat Overview and Summary
The High Court was required to determine whether the Court of Appeal erred in setting aside a jury's apportionment of responsibility for contributory negligence and whether the jury's apportionment was reasonable in the circumstances. The court also considered the respective roles of a jury in delivering a verdict at trial and an appellate court reviewing that verdict, particularly in relation to the conduct of the case by the parties.
The High Court held that the Court of Appeal had erred in its approach. It emphasised that contributory negligence and apportionment are questions of fact, and that an appellate court must determine appeals by reference to legal principle and the specific facts of the case, rather than by perceived factual similarities to other cases. The court noted that the Court of Appeal's reliance on the criterion of "perversity" was likely to mislead and overstate the restraint on appellate correction of error. The court also considered that the nature of the employee's departure from the employer's system of work, whether defiant or a misguided attempt to fulfil duties, was relevant to the just and equitable apportionment of responsibility.
The High Court allowed the appeal, set aside the orders of the Court of Appeal, and remitted the matter to that court for determination of the nett amount for which judgment should be entered and the question of costs. The respondent was ordered to pay the costs of the appeal to the High Court.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the Orders of the Court of Appeal of the Supreme Court of New South Wales made on 7 February 2000.
3. Remit the matter to the Court of Appeal for determination, in accordance with the reasons for judgment in this Court, of the nett amount for which judgment should be entered, and of the question of costs in that Court.
4. Respondent to pay the costs of the appeal to this Court.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by:
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