The Nominal Defendant v Wardle

The Nominal Defendant appealed to the New South Wales Court of Appeal against a decision of the District Court of New South Wales, which had found in favour of the respondent, Ms. Wardle. The dispute concerned Ms. Wardle's claim for damages for personal injuries sustained when she was a passenger in a motor vehicle that was involved in an accident. The Nominal Defendant, as the insurer of the unidentified driver of the vehicle, was liable to satisfy any judgment obtained against that driver.

The primary legal issues before the Court of Appeal were whether the trial judge had erred in finding that the driver of the vehicle had been negligent, and if so, whether Ms. Wardle had been contributorily negligent. Specifically, the court had to consider whether the evidence supported the finding that the driver had failed to keep a proper lookout and had driven at an excessive speed in the circumstances, and whether Ms. Wardle's conduct in remaining in the vehicle, or her actions prior to the accident, constituted a failure to take reasonable care for her own safety.

The Court of Appeal upheld the trial judge's finding of negligence against the driver, concluding that the evidence, including the nature of the accident and the driver's subsequent admissions, supported the conclusion that the driver had failed to keep a proper lookout and had driven at an excessive speed. However, the court found that the trial judge had erred in not finding any contributory negligence on the part of Ms. Wardle. The court reasoned that Ms. Wardle, by continuing to travel in a vehicle driven by someone she knew to be intoxicated and driving erratically, had failed to take reasonable care for her own safety. Accordingly, the court varied the judgment of the District Court by reducing the award of damages to reflect a 50% apportionment of blame.