Talbot-Butt v Holloway - [1991] HCATrans 48

A'fr ... , At.:STRALIA ,:-
-->};;~~~ftt(','--'

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sll0 of 1990
B e t w e e n -
ASHLEY TALBOT-BUTT

Applicant

and
BETTY IRENE HOLLOWAY

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 FEBRUARY 1991, AT 2.22 PM

Talbot-Butt

15/2/91

MR D.B. MILNE, QC: If the Court pleases, I appear with ~y

learned junior, MR R.C. TONNER, for the applica~t.
(instructed by G.M. Meadows)

MR C.A. EVATT: I appear for the respondent.

(instructed by

Teakle Ormsby & Associates)

MASON CJ:

Yes, Mr Milne?

MR MILNE:

Your Honours, this raises a simple and very short point and it is this:

how do you judge the degrees

of the breach of duty of the ordinary reasonable
man as between a plaintiff and a defendant, both of
whom were found to be guilty of negligence?
It arose, as Your Honours know, in this way:

the plaintiff was a pedestrian lady. The defendant
was the driver of a motor vehicle. A collision
took place in William Street up near the King's
Cross tunnell, and you seeing judges here, you will
all know where that is. It is a six-lane highway.
She, it was found on the facts, was well but
adversely affected by alcohol when the accident
happened sometime in the early evening of
September.
What happened was that the trial judge found

that the defendant was negligent and found that the
plaintiff was negligent and he said, "She is one-

third to blame; he is two-thirds to blame". It

went to the Court of Appeal. Two of the judges,
while they both thought that had they been the
judge at first instance might have come to a
different conclusion, it was not so wildly wide of
the mark that they would alter it on appeal.

MASON CJ: "Wholly erroneous" is the expression, is it not?

MR MILNE:

"Wholly erroneous", Your Honour, yes.

The third

judge thought it was. The third judge thought it
departed so significantly from the standard of care of an ordinary person that he thought that she, the plaintiff, should bear the greater proportion of
the blame.

MASON CJ: So, he was able to be so precise about it that he

got to 55 per cent responsibility.

MR MILNE:

He got to 55 per cent, Your Honour.

Now,

Your Honour, I know what is going to be said to me.
You are all going to say to me, "Well, look, you
can't be too exact about these things", and of
course you cannot be but 33 1/3 per cent and
66 per cent is a bit wide of the mark, in my
submission.

MASON CJ: Wholly wide of the mark?

Talbot-Butt

15/2/91

~ MILNE: It is wholly wide of the marl<. If it had ::ee:--.

50/50, then I do not think I would have the==~~~;~
to stand…

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 Talbot-Butt v Holloway

Details

AGLC: Talbot-Butt v Holloway [1991] HCATrans 48
Case: [1991] HCATrans 48
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Ms Talbot-Butt, was the plaintiff in the original proceedings, and Mr Holloway was the defendant. The dispute arose from a collision between Ms Talbot-Butt, a pedestrian, and Mr Holloway, a driver, on a six-lane highway in Sydney. The trial judge found both parties to have been negligent, apportioning blame at two-thirds to the defendant and one-third to the plaintiff.

The central legal issue before the High Court was how to assess the degrees of breach of duty of care between a plaintiff and a defendant, where both have been found negligent. Specifically, the applicant argued that the apportionment of blame, particularly the one-third attributed to the plaintiff, was demonstrably wrong. The Court of Appeal had upheld the trial judge's apportionment, with two judges finding it not "wholly erroneous" and a third judge dissenting, believing the plaintiff should bear the greater proportion of blame.

The applicant contended that the trial judge's apportionment was "wholly wide of the mark" and raised a significant point regarding the standard of care to be applied to an intoxicated plaintiff. The argument was that a plaintiff who, by their own actions, induces a state of intoxication should be held to a different standard than someone suffering from a frailty not of their own making. The applicant sought to challenge the principle applied in assessing the plaintiff's contributory negligence, particularly in circumstances where the plaintiff's intoxication was a factor.

Orders