Nominal Defendant v Green; Nominal Defendant v Golding; Nominal Defendant v Campbell; [2013] NSWCA 219

Nominal Defendant v Green; Nominal Defendant v Golding; Nominal Defendant v Campbell; [2013] NSWCA 219

The trial judge's assessment that each respondent knew or ought to have known of the driver's impairment by alcohol and failed to wear seatbelts justified findings of contributory negligence at 35% and 40%, which were within the appropriate range. Comparison with other cases did not require a higher percentage, as the respondents did not exercise control over the driver nor actively invite the risk, and the degree of impairment was not extreme.

Jurisdiction
Australia
Judgment Date
17 July 2013
Procedural Posture
Appeal and Applications for Leave to Appeal / Judgment on Appeal and Applications for Leave
Outcome
Appeals dismissed, leave granted but no change to trial outcome
Legal Topics
['contributory Negligence' 'assessment of Damages' 'duty of Care' 'passenger Injury' 'costs Orders']
['torts' 'motor Accidents Compensation' 'civil Procedure'] ['contributory Negligence' 'assessment of Damages' 'duty of Care' 'passenger Injury' 'costs Orders']

Case Brief

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Procedural Posture

Appeal and Applications for Leave to Appeal / Judgment on Appeal and Applications for Leave

Legal Issues

  1. 1 ['Whether the trial judge correctly assessed the degree of contributory negligence for each respondent plaintiff' "Whether the appellant's proposed 80% contributory negligence apportionment should be followed" 'Whether comparison with other cases of contributory negligence is appropriate' 'Whether failure to wear seatbelts and knowledge of intoxication constitute basis for contributory negligence']

Ratio Decidendi

The trial judge's assessment that each respondent knew or ought to have known of the driver's impairment by alcohol and failed to wear seatbelts justified findings of contributory negligence at 35% and 40%, which were within the appropriate range. Comparison with other cases did not require a higher percentage, as the respondents did not exercise control over the driver nor actively invite the risk, and the degree of impairment was not extreme.

Court Disposition

Appeals dismissed, leave granted but no change to trial outcome

Orders

  • ["Nominal Defendant v Green: Appeal dismissed; appellant to pay respondent's costs, to be assessed on ordinary basis up to and including 3 September 2012 and thereafter on an indemnity basis" "Nominal Defendant v Golding: Leave to appeal granted; applicant to file draft notice of appeal within seven days; appeal...