Nominal Defendant v Stephens [2011] NSWCA 312

Whealy JA

82 The statutory provisions relevant to the issue of contributory negligence are section 138 of the Motor Accidents Compensation Act 1999 and section 9 of the Law Reform (Miscellaneous Provisions) Act 1965 . There is no dispute that the primary judge recognised that the respondent’s damages recoverable in respect of the present motor accident were to be reduced by the percentage the court considered “just and equitable in the circumstances of the case”. The 1965 Act required that damages might be reduced “to such extent as the court thinks just and equitable, having regard to the claimant’s share in the responsibility for the damage”. Mr Rewell did not suggest that the primary judge had overlooked these provisions. Senior counsel also accepted that the authorities require that an appellant court be mindful of the need for restraint in disturbance of decisions about contributory negligence. As long ago as 1985, the High Court in Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALR 529 at 532 – 533 said:-

The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.

83 Their Honours had preceded this comment with the observation that:-

A finding on a question of apportionment is a finding upon a “question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds”: British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed.

The principle that intermediate and ultimate appellate courts must show restraint in reviewing a primary judge’s apportionment of contributory negligence remains steadfastly the position today (see Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330 at 379 per Kirby J; Turkmani v Visvalingam & Ors [2009] NSWCA 211; 53 MVR 176 per Beazley JA).

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