Mackenzie v The Nominal Defendant

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.