Nominal Defendant v Ross

The appeal concerned a claim by a pedestrian, the respondent, against the Nominal Defendant, the appellant, for injuries sustained when struck by a minibus at an airport. The primary dispute revolved around the negligence of the minibus driver and whether the pedestrian had contributed to their own injuries. The matter was heard on appeal by Beazley P, Meagher and Hoeben JJA.

The court was required to determine whether the trial judge's finding of negligence against the driver was so improbable as to warrant intervention on appeal. Specifically, the court considered whether the driver failed to keep a proper lookout and whether the pedestrian was contributorily negligent by also failing to keep a proper lookout. Furthermore, the court had to assess whether the Nominal Defendant had established a "due inquiry and search" for the driver, particularly in light of the minibus departing the airport shortly after the accident and the failure to access CCTV film within 28 days.

The appellate court found that the trial judge's apportionment of liability, which weighted the driver's negligence more heavily, was not demonstrably wrong. However, the court determined that the Nominal Defendant had not established a "due inquiry and search" as required by the relevant legislation, primarily due to the failure to access CCTV footage within the prescribed timeframe. This failure meant the Nominal Defendant could not rely on certain defences.

Consequently, the appeal was allowed in part. The judgment in favour of the respondent was set aside and a reduced sum of $266,939 was entered in lieu of the original $328,540. The parties were directed to file agreed minutes of order regarding the costs of the appeal within seven days, with provision for default in the event of disagreement.