Nominal Defendant v Green; Nominal Defendant v Golding; Nominal Defendant v Campbell;

The appeal concerned claims brought by three respondents against the Nominal Defendant for injuries sustained as passengers in unregistered motor vehicles. The central dispute revolved around the trial judge's assessment of contributory negligence on the part of the plaintiffs. The Nominal Defendant argued that the trial judge had erred in assessing the degree of contributory negligence, contending it should have been higher. The appeals were heard by McColl and Basten JJA and Sackville AJA in the Court of Appeal of New South Wales.

The legal issues before the Court of Appeal were whether the trial judge had correctly assessed the degree of contributory negligence of each plaintiff, and whether the trial judge's findings were within an acceptable range. The Nominal Defendant specifically argued that the plaintiffs' knowledge of the driver's intoxication and inexperience, coupled with their failure to wear seatbelts, warranted a higher finding of contributory negligence, potentially as high as 80%. The court was also asked to consider the appropriateness of comparing the present case with other decided cases and the need for consistency in the assessment of contributory negligence.

The Court of Appeal applied the principles of contributory negligence as codified in section 5R of the Civil Liability Act 2002 (NSW). The court acknowledged the trial judge's findings that the plaintiffs knew or ought to have known that the driver's capacity was impaired by alcohol consumption. However, the court also noted the need for restraint in interfering with a trial judge's findings of fact, particularly concerning the assessment of contributory negligence, which involves a broad discretion. The court found that the trial judge's assessments of 35% and 40% contributory negligence were within a permissible range, and that the Nominal Defendant had not demonstrated sufficient grounds to overturn these findings.

In each of the three appeals, the Court of Appeal dismissed the appeal. The Nominal Defendant was ordered to pay the respondents' costs, with the basis of assessment varying slightly in each case, generally being on the ordinary basis up to a specified date and thereafter on an indemnity basis. Leave to appeal was granted in the Golding and Campbell matters, but the appeals were ultimately dismissed.