Mackenzie v The Nominal Defendant [2005] NSWCA 180
HEARING DATE(S):
7 April 2005
JUDGMENT DATE:
7 June 2005
JUDGMENT OF:
Giles JA at 1; Stein AJA at 120; Gzell J at 121
DECISION:
(1) Grant leave to the appellant to join Aaron Brown as respondent; dispense with service of the notice of appeal and appeal books upon him; (2) Appeal allowed; (3) Set aside the orders of Cooper ADCJ made following publication of his reasons on 8 July 2004, save as to the order as to the costs occasioned by proving that Mr Brown was the rider of the motor cycle at the time the plaintiff was injured; (4) Remit the proceedings to the District Court for further hearing; (5) Save as to the costs the subject of the order mentioned in 3, costs of the trial before Cooper ADCJ to be paid as ordered by the judge conducting the further hearing; (6) Respondent to pay the appellant's costs of the appeal.
CATCHWORDS:
Motor cycle accident - uninsured motor cycle - pillion passenger injured - sues Nominal Defendant - rider and pillion passenger both heavily intoxicated - contributory negligence - statutory additions to common law - objective standard for contributory negligence - reduction according to what is just and equitable - role of pillion passenger's intoxication in what is just and equitable - depending on the circumstances, may ameliorate culpability.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Mackenzie v The Nominal Defendant [2005] NSWCA 180
Case
[2005] NSWCA 180
Decision Date
CaseChat Overview and Summary
In *Mackenzie v The Nominal Defendant*, the appellant, a pillion passenger on a motorcycle, suffered injuries in an accident. The motorcycle was uninsured, and the appellant sued the Nominal Defendant. Both the rider and the appellant were heavily intoxicated at the time of the accident. The primary issue concerned the appellant's claim for damages and the extent to which her recovery should be reduced due to contributory negligence, particularly in light of her intoxication. The case was heard in the Court of Appeal of New South Wales, with judgment delivered by Giles JA, Stein AJA, and Gzell J.
The central legal question before the Court of Appeal was whether the trial judge had erred in assessing the appellant's contributory negligence. Specifically, the court had to determine the appropriate reduction in damages, considering the statutory provisions that allow for additions to common law damages and require a reduction according to what is "just and equitable." The court was required to consider the role of the pillion passenger's intoxication in this assessment and whether, in the circumstances, it could ameliorate her culpability.
The Court of Appeal found that the trial judge had erred in his assessment of contributory negligence. The court applied the objective standard for contributory negligence, but emphasised that the reduction according to what is just and equitable requires a nuanced consideration of all circumstances. It held that the pillion passenger's intoxication, depending on the specific facts, could indeed serve to ameliorate her culpability, and that the trial judge had not given sufficient weight to this factor. Consequently, the appeal was allowed, the previous orders were set aside (except for costs related to proving the rider's identity), and the proceedings were remitted to the District Court for a further hearing. The appellant was granted leave to join the rider as a respondent and was awarded costs of the appeal.
Orders
Orders of the court
(1) Grant leave to the appellant to join Aaron Brown as respondent; dispense with service of the notice of appeal and appeal books upon him; (2) Appeal allowed; (3) Set aside the orders of Cooper ADCJ made following publication of his reasons on 8 July 2004, save as to the order as to the costs occasioned by proving that Mr Brown was the rider of the motor cycle at the time the plaintiff was injured; (4) Remit the proceedings to the District Court for further hearing; (5) Save as to the costs the subject of the order mentioned in 3, costs of the trial before Cooper ADCJ to be paid as ordered by the judge conducting the further hearing; (6) Respondent to pay the appellant's costs of the appeal.