Nominal Defendant v Bacon

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.