Nominal Defendant v Bacon

Case [2014] NSWCA 275

Court of Appeal

New South Wales
Case Title: Nominal Defendant v Bacon
Medium Neutral Citation: [2014] NSWCA 275
Hearing Date(s): 6 June 2014
Decision Date: 21 August 2014
Before: McColl JA at [1]; Macfarlan JA at [27]; Ward JA at [43]
Decision:

Appeal and cross-appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TORTS - negligence - proof of negligence - causation - where plaintiff driving behind a truck on "the beaten track" of a country road and defendant driving in opposite direction on far left of road and pulls back towards centre of road colliding with plaintiff's car - whether defendant's actions were a necessary condition of the harm

TORTS - negligence - contributory negligence - whether trial judge erred in finding plaintiff and defendant equally negligent - whether appellate court should intervene in the primary judge's assessment of apportionment of contributory negligence

TORTS - negligence - discussion of operation of s 5D Civil Liability Act where more than one sufficient condition of plaintiff's injury
Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Liability Amendment (Personal Responsibility) Bill 2002
Motor Accidents Act 1988 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
The Traffic Act 1949 (Qld)
Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568
Bennett v Minister of Community Welfare [1992] HCA 27; 176 CLR 408
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139
British Fame (Owners) v Macgregor (Owners) [1943] AC 197
Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32
Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268
Flounders v Millar [2007] NSWCA 238; (2007) 49 MVR 53
Ghunaim v Bart [2004] NSWCA 28; (2004) Aust Torts Reports 81-731
Grant v Sun Shipping Co Ltd [1948] AC 549
Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) [2014] NSWCA 257
Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 75 ALJR 867
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Mikaera v Newman Transport Pty Ltd [2013] NSWCA 464; (2013) 65 MVR 578
Mobbs v Kain [2009] NSWCA 301
Mousa v Marsh [2001] NSWCA 317
Nominal Defendant v Hawkins [2011] NSWCA 93
Origin Energy LPG Ltd v BestCare Foods Ltd [2012] NSWCA 407
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty…

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Nominal Defendant v Bacon [2014] NSWCA 275
Case
[2014] NSWCA 275
Decision Date

CaseChat Overview and Summary

In *Nominal Defendant v Bacon*, the New South Wales Court of Appeal considered a negligence claim arising from a motor vehicle collision. The plaintiff was driving on a country road, following the established track, when the defendant, travelling in the opposite direction, moved from the far left of the road back towards the centre, resulting in a collision with the plaintiff's vehicle. The Nominal Defendant, as the insurer of the at-fault driver, appealed a decision that found its insured liable.

The central legal issues before the Court of Appeal were whether the defendant's actions constituted a necessary condition of the plaintiff's injury, as required by section 5D of the *Civil Liability Act 2002* (NSW), and whether the trial judge erred in apportioning liability equally between the plaintiff and the defendant. The court was asked to determine if the appellate court should intervene in the primary judge's assessment of contributory negligence.

The Court of Appeal affirmed the trial judge's finding that the defendant's negligent driving was a factual cause of the collision. Applying section 5D of the *Civil Liability Act 2002* (NSW), the court reasoned that even if other conditions might have contributed to the accident, the defendant's actions were a sufficient condition of the harm. Regarding contributory negligence, the court held that the trial judge's apportionment of 50% to the plaintiff and 50% to the defendant was not demonstrably wrong and therefore declined to interfere with that assessment.

Consequently, the appeal and cross-appeal were dismissed, with costs awarded to the respondent.

Orders

Orders of the court

Appeal and cross-appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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