Nominal Defendant v Green

Case [2013] NSWCA 219

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Nominal Defendant v Green; Nominal Defendant v Golding; Nominal Defendant v Campbell; [2013] NSWCA 219
Hearing dates:4 July 2013
Decision date: 17 July 2013
Before: McColl JA at [1];
Basten JA at [2];
Sackville AJA at [58]
Decision:

In Nominal Defendant v Green (CA 2012/245362):

(1) Dismiss the appeal.

(2) Order the appellant to pay the respondent's costs, to be assessed on the ordinary basis up to and including 3 September 2012 and thereafter on an indemnity basis.

In Nominal Defendant v Golding (CA 2012/245657):

(1) Grant the applicant leave to appeal.

(2) Direct that the applicant file within seven days the draft notice of appeal contained in the combined red appeal book.

(3) Dismiss the appeal.

(4) Order the applicant/appellant to pay the respondent's costs in this Court, to be assessed on the ordinary basis up to and including 24 August 2012 and thereafter on an indemnity basis.

In Nominal Defendant v Campbell (CA 2012/245658):

(1) Grant the applicant leave to appeal.

(2) Direct that the applicant file within seven days the draft notice of appeal contained in the combined red appeal book.

(3) Dismiss the appeal.

(4) Order the applicant/appellant to pay the respondent's costs in this Court, to be assessed on the ordinary basis up to and including 5 October 2012 and thereafter on an indemnity basis.

[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:

MOTOR ACCIDENTS COMPENSATION - unregistered vehicle, claim against nominal defendant - contributory negligence - whether trial judge correctly assessed degree of contributory negligence of each respondent plaintiff - plaintiffs injured while passengers - driver of vehicle unlicensed, inexperienced and intoxicated - plaintiffs knew or ought to have known driver's capacity to drive impaired by alcohol consumption - plaintiffs travelling without seatbelts - trial judge assessed contributory negligence at 35% and 40% - whether assessment within range - Civil Liability Act 2002 (NSW), s 5R

TORTS - motor accidents - contributory negligence - trial judge assessed contributory negligence at 35-40% - plaintiffs intoxicated passengers in vehicle driven by person plaintiffs knew to be intoxicated - whether contributory negligence should be assessed at 80% - whether comparison with other cases appropriate - need for restraint in interfering with trial judge's finding of contributory negligence - need for consistency in approach
Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B, 5B, 5C, 5R, 49, 54; Div 2, Pt 1A; Div 8
Motor Accidents Compensation Act 1999 (NSW), ss 33, 138
Supreme Court Act 1970 (NSW), ss 75A, 101
Uniform Civil Procedure Rules 2005 (NSW), Pt 42
Cases Cited: British Fame…

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Nominal Defendant v Green [2013] NSWCA 219
Case
[2013] NSWCA 219
Decision Date

CaseChat Overview and Summary

In *Nominal Defendant v Green* and its companion matters, the New South Wales Court of Appeal considered appeals by the Nominal Defendant against findings of contributory negligence made by a trial judge in favour of the respondent plaintiffs. The plaintiffs had sustained injuries as passengers in a vehicle driven by an unlicensed, inexperienced, and intoxicated driver. The Nominal Defendant argued that the trial judge's assessment of contributory negligence, at 35% and 40% for the respective plaintiffs, was too low, contending it should have been 80%.

The central legal issues before the Court of Appeal were whether the trial judge had correctly assessed the degree of contributory negligence of each plaintiff, given their knowledge of the driver's impaired capacity due to alcohol consumption and their failure to wear seatbelts. The Court was required to determine if the trial judge's apportionment was within a reasonable range and whether a comparison with other cases was appropriate, while also considering the need for restraint in interfering with the primary judge's findings and the importance of consistency in approach.

The Court of Appeal dismissed the appeals, upholding the trial judge's assessments of contributory negligence. The judges applied the principles of contributory negligence, noting that the assessment involves a comparison of the plaintiff's conduct with that of a reasonable person in their position. While acknowledging the plaintiffs' intoxication and their knowledge of the driver's impairment, the Court found that the trial judge's apportionment was not demonstrably wrong. The Court emphasised that while consistency in approach is desirable, each case turns on its own facts, and there was no basis to interfere with the trial judge's assessment, which was considered to be within an acceptable range. The appeals were dismissed, and the Nominal Defendant was ordered to pay the respondents' costs.

Orders

Orders of the court

In Nominal Defendant v Green (CA 2012/245362):

(1) Dismiss the appeal.

(2) Order the appellant to pay the respondent's costs, to be assessed on the ordinary basis up to and including 3 September 2012 and thereafter on an indemnity basis.

In Nominal Defendant v Golding (CA 2012/245657):

(1) Grant the applicant leave to appeal.

(2) Direct that the applicant file within seven days the draft notice of appeal contained in the combined red appeal book.

(3) Dismiss the appeal.

(4) Order the applicant/appellant to pay the respondent's costs in this Court, to be assessed on the ordinary basis up to and including 24 August 2012 and thereafter on an indemnity basis.

In Nominal Defendant v Campbell (CA 2012/245658):

(1) Grant the applicant leave to appeal.

(2) Direct that the applicant file within seven days the draft notice of appeal contained in the combined red appeal book.

(3) Dismiss the appeal.

(4) Order the applicant/appellant to pay the respondent's costs in this Court, to be assessed on the ordinary basis up to and including 5 October 2012 and thereafter on an indemnity basis.

[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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