Mackenzie v The Nominal Defendant

Case [2005] NSWCA 180


CITATION:

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.

CASES CITED:

Andrews v Nominal Defendant [1963] SR (NSW) 110;
Bradshaw v Wallis (CA, 1 April 1996, unreported);
Eastern Extension Australasia and China Telegraph Co Ltd v Federal Commissioner of Taxation (1923) 33 CLR 426;
Fox v Percy (2003) 214 CLR 118;
House v The King (1936) 55 CLR 499;
Imperial Furniture Pty Ltd v Automotive Fire Sprinklers Pty Ltd [1967] 1 NSWR 29;
Insurance Commissioner v Joyce (1948) 77 CLR 39;
Joslyn v Berryman (2003) 214 CLR 552;
McCamley v Harris (Young J, 2 September 1997, unreported);
McPherson v Whitfield (1996) 1 Qd R 474;
Mendola v Warren (1993) 19 MVR 385;
Miraflores v Livianos (1967) AC 826;
Morton v Knight [1990] 2 Qd R 419;
Nicholson v Nicholson (1994) 35 NSWLR 308;
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492;
Smith v McIntyre (1958) Tas SR 36;
Talbot-Butt v Holloway (1990) 12 MVR 70;
Tasita Pty Ltd v Sovereign State of Papua New Guinea (1991) 34 NSWLR 691;
Williams v Government Insurance Office (NSW) (1995) 21 MVR 148;
Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25.

PARTIES:

Peter Mackenzie - Appellant
The Nominal Defendant - Respondent

FILE NUMBER(S):

CA 40633/04

COUNSEL:

D E Graham & R E Steele - Appellant
R Bartlett SC & R Weinstein - Respondent

SOLICITORS:

McClellands - Appellant
Dibbs Barker Gosling - Respondent

LOWER COURT JURISDICTION:

District Court

LOWER COURT FILE NUMBER(S):

855/03

LOWER COURT JUDICIAL OFFICER:

Cooper ADCJ



                          CA 40633/04
                          DC 855/03

                          GILES JA
                          STEIN AJA
                          GZELL J

                          Tuesday 7 June 2005
MACKENZIE v…

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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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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