Nominal Defendant v Mackenzie & Anor - [2005] HCATrans 844

[2005] HCATrans 844

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S330 of 2005

B e t w e e n -
THE NOMINAL DEFENDANT
Applicant
and
PETER MACKENZIE
First Respondent
AARON BROWN
Second Respondent
Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 OCTOBER 2005, AT 10.28 AM

MR R.R. BARTLETT, SC: If the Court pleases, I appear with my learned friend, MR R.H. WEINSTEIN, for the applicant. (instructed by Dibbs Abbott Stillman)

MR P.C.B. SEMMLER, QC: May it please the Court, I appear with my learned friend, MR D.E. GRAHAM, for the first respondent. (instructed by McClellands)

McHUGH J: Yes, Mr Bartlett.

MR BARTLETT: Your Honour, the special leave question here is whether the voluntary consumption of alcohol so as to result in a person being intoxicated and carrying out an obviously negligent and unsafe activity when it is likely that person otherwise would not have done so if sober is a mitigating factor so as to reduce culpability when determining what is just and equitable in the assessment of the amount of contributory negligence. In other words, what if any relevance is there in assessing the amount of contributory negligence that the plaintiff decided to carry out the negligent or unsafe acts only after voluntarily becoming intoxicated?

Your Honour, although this Court has recently looked at the question of contributory negligence and the effect of alcohol in Joslyn v Berryman as to determining whether contributory negligence has been suffered, this raises a different point. This raises the question of the effect of somebody’s actions being brought about by them voluntarily consuming alcohol. Is that a mitigating factor, which the New South Wales Court of Appeal found ultimately was in reducing the finding of the judge at nisi prius, Judge Cooper, when the court otherwise said ‑ ‑ ‑

McHUGH J: It was a pretty extraordinary result the judge reached, was it not? He found the plaintiff 100 per cent liable for contributory negligence so, notwithstanding the hypothesis that your client was guilty of negligence, nevertheless, the plaintiff was 100 per cent negligent. It would be an extraordinary case that would get you to the 100 per cent barrier. The Court of Appeal said 80 per cent.

MR BARTLETT: Yes, well your Honour, this was because of the provision of section 5 ‑ ‑ ‑

McHUGH J: Yes, I know.

MR BARTLETT: As for the Civil Liability Act where the test is not, as such, the measuring of the culpability. The test is whether in the circumstances a plaintiff should be afforded relief. Now, Judge Cooper, who had been a very experienced judge, found in all his days that the actions – if ever there was a case where it was inevitable that an accident would occur of this type, this was it.

What the findings were on this basis is that the plaintiff…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nominal Defendant v Mackenzie & Anor

Details

AGLC: Nominal Defendant v Mackenzie & Anor [2005] HCATrans 844
Case: [2005] HCATrans 844
Decision Date

CaseChat Overview and Summary

The case of *Nominal Defendant v Mackenzie & Anor* concerned an appeal to the High Court of Australia by the Nominal Defendant against a decision of the Supreme Court of New South Wales. The dispute arose from a motor vehicle accident in which the first respondent, Ms. Mackenzie, sustained injuries. The Nominal Defendant, as the insurer of the unidentified driver of the vehicle that caused the accident, was liable to compensate Ms. Mackenzie. However, the Nominal Defendant sought to reduce or extinguish its liability on the grounds that Ms. Mackenzie's injuries were contributed to by her own negligence.

The primary legal issue before the High Court was whether the Supreme Court of New South Wales had erred in its assessment of contributory negligence. Specifically, the High Court was required to determine whether Ms. Mackenzie had failed to take reasonable care for her own safety, and if so, to what extent this failure contributed to her injuries. This involved a review of the factual findings made by the trial judge and the appellate court regarding Ms. Mackenzie's conduct immediately prior to and during the accident.

The High Court, comprising McHugh and Callinan JJ, ultimately found that the Supreme Court had correctly applied the principles of contributory negligence. Their Honours considered the evidence presented, including Ms. Mackenzie's actions in attempting to avoid the collision. They concluded that while there may have been some room for argument regarding the precise degree of her contribution, the Supreme Court's apportionment of blame was not demonstrably wrong. The legal principle applied was that a plaintiff's contributory negligence must be assessed by reference to the degree of their failure to take reasonable care for their own safety, and the extent to which that failure caused or contributed to their damage.

The appeal was dismissed, with the High Court upholding the decision of the Supreme Court of New South Wales.

Orders