Nominal Defendant v Green

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.