ON APPEAL FROM THE SUPREME COURT Negligence-Contributory megligence-Apportionment-Basis-Last opportunity-
Applicability since enactment of contribution legislation-Tortfeasors and Con- tributory Negligence Act 1954 (No. 14 of 1954) (Tas.), S. 4. HOBART, Mar. 14, 15;
In determining the extent to which damages recoverable by a plaintiff are to be diminished pursuant to S. 4 (1) of the Tortfeasors and Contributory Negli- MELBOURNE,
gence Act 1954 (Tas.) by reason of his share in the responsibility for the damage a comparison is to be made of the respective degrees by which the conduct of the plaintiff and the defendant has diverged from the standard of care of the
Decision of the Supreme Court of Tasmania (Crisp J.), varied. Appeal from the Supreme Court of Tasmania.
On 20th September 1954 George William Pennington brought an action in the Supreme Court of Tasmania against Roy James Norris claiming damages for personal injuries sustained by him when struck by the defendant's motor vehicle in Marine Terrace, Burnie, on 12th June 1954.
The action was heard before Crisp J. who, in a judgment delivered on 29th November 1955, held that the plaintiff should recover the sum of £9,178 8s. Od. reduced by one-half on account of his own negligence. Judgment was accordingly entered for the plaintiff for the sum of £4,589 4s. Od.
From this decision SO far as it found that the damages should be reduced by reason of his own negligence the plaintiff appealed to the High Court. On 5th January 1956 the defendant gave notice of cross-appeal on the ground that the sum assessed, £9,178 8s. Od., was excessive.
R. C. Wright and H. v. O. Bushby, for the appellant. J. P. Bourke, Q.C. and R. R. Barber, for the respondent.
Cur. adv. vult.
THE COURT delivered the following written judgment :- This is an appeal from the Supreme Court of Tasmania (Crisp J.). The appellant was the plaintiff in an action in which he claimed damages for personal injuries sustained when he was struck by a motor car driven by the respondent. His Honour found that the damage had been caused by negligent conduct on the part of both parties and that each was equally at fault. He assessed the plain- tiff's damages at £9,178 8s. Od. but, acting in pursuance of the Tortfeasors and Contributory Negligence Act 1954 (Tas.), he reduced these damages by one-half and gave judgment for £4,589 4s. Od. The plaintiff maintains that the learned judge was wrong in finding the plaintiff at fault, or at least in finding him equally at fault with the defendant, and he says that he should have had judgment for the full amount of £9,178 8s. Od., or at least for a sum sub- stantially larger than one-half of that amount. A cross-appeal instituted by the defendant was abandoned before us.
The accident…
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.
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AGLC
Pennington v Norris [1956] HCA 26
Case
[1956] HCA 26
Decision Date
CaseChat Overview and Summary
This case involved an appeal to the High Court of Australia from a decision of the Supreme Court of Tasmania. The appellant, George William Pennington, had sued the respondent, Roy James Norris, for damages for personal injuries sustained when he was struck by the respondent's motor vehicle. The trial judge found that both parties were negligent and apportioned responsibility equally, reducing the appellant's damages by 50%. The appellant appealed this apportionment, arguing he was not at fault or was less at fault than found.
The legal issues before the High Court were whether the trial judge erred in finding the appellant contributorily negligent, and if so, whether the apportionment of fault at 50% to each party was just and equitable under the *Tortfeasors and Contributory Negligence Act 1954* (Tas.). Specifically, the court had to consider the basis for apportioning fault under the Act, which requires regard to the claimant's share in the responsibility for the damage.
The High Court reasoned that while there was evidence to support a finding of contributory negligence against the appellant for failing to keep a proper lookout, the trial judge's equal apportionment of blame was not justified. The court emphasised that apportionment under the Act involves a comparison of the degree to which each party's conduct diverged from the standard of a reasonable person. The court found the respondent's conduct, including his speed of approximately 30 miles per hour on a misty, wet night with significant pedestrian traffic near hotels that had recently closed, to be a far more culpable departure from the standard of care than the appellant's failure to look.
Consequently, the High Court allowed the appeal, varying the Supreme Court's order. The court substituted a finding that the respondent bore 80% of the responsibility for the damage and the appellant bore 20%. The judgment was varied to reflect this apportionment, resulting in a judgment for the appellant for £7,342 14s. 5d.