Naturally, the primary focus of any defendant arguing contributory negligence is on the conduct of the plaintiff. At its heart however, contributory negligence is an apportionment exercise. That is, one requiring the conduct of both plaintiff and defendant to be placed alongside each other and examined.
Then the alchemical process of comparing the behaviour of each litigant is undertaken, a pair of percentages produced and ultimately, if made out, an amount by which the plaintiff’s claim should be reduced.
Basten and Macfarlan JJA’s judgments in Gordon v Truong  NSWCA 97 highlight two important aspects of this process.
In Gordon the defendant collided with a pedestrian and admitted liability in negligence pre-trial. However, on the question of liability there still remained the issue of the plaintiff’s alleged contributory negligence for failure to keep a proper lookout. The trial judge assessed this at zero and the defendant appealed.
The plaintiff, Mr Truong was about half way across three traffic lanes when he was hit. Upon Basten JA’s calculation, he had more than enough time to see the defendant’s car and take evasive action. This was enough for his Honour to vary the trial judge’s decision and make a finding there should be a 35% reduction to the plaintiff’s award due to his contributory negligence.
However, Basten JA had a problem with the dearth of evidence and submissions regarding the driver’s breach of duty at the first instance trial; a somewhat natural consequence of his liability having been admitted. This gave his Honour cause to offer the salutary reminder (at ):
…the plaintiff could fairly submit [t]hat because the proof of contributory negligence lay with the driver, who had an interest diminishing his degree of responsibility, to the extent that he did not undertake that task, he could not be heard to complain if the assessment of contributory negligence was less than it should have been.
Therefore the first learning Gordon offersis that where the defendant’s liability is admitted and contributory negligence is alleged, the court must still be given the opportunity to assess the extent of the defendant’s culpability through sufficient evidence and submissions; rather than putting it to one side as it was in this case.
The Court of Appeal in Gordon was still comfortable to infer the driver’s culpability from the surrounding facts and found him similarly responsible for failing to keep a proper lookout.
Then came the mysterious process of determining the percentages of blame. In NSW section 9(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1965 says the apportionment is based upon what the court thinks is ‘just and equitable having regard to the claimant’s share in the responsibility for the damage’. Yet the standard of reasonableness applicable to the assessment of the claimant’s conduct is said to be the same as that defendant, ie. the ‘reasonable person’ (per s5R of the Civil Liability Act 2002). However the content of that hypothetical standard would obviously be different.
What’s interesting is the different way the majority of Basten and Macfarlan JJA dealt with the apportionment exercise.
Basten JA picked up some passages from the Review of the Law of Negligence: Final Report (September 2002) a document which provided key background and rationale for the Civil Liability Act 2002. These parts of that document seem to discourage (as by implication does perhaps section 5R) treating the obligation of motorists and pedestrians to keep a proper lookout any differently based upon for example, the greater potential of the motorist to cause serious harm.
Instead Basten JA simply made a less than resolute assessment of what he thought each party’s role in the accident would have been and agreed with Macfarlan JA’s apportionment of 35% contributory negligence.
Macfarlan JA however, did not feel so constrained and picking up the observations of the High Court in Pennington v Norris (1956) 96 CLR 10 at 16, noted at :
Relevant to the apportionment exercise in this case is in my view the fact that the appellant was in charge of a fast moving vehicle that had the potential to do great harm to people or things in its path, whereas the consequence of carelessness on the part of the plaintiff was more likely to be, as it was, only harm to himself.
The common law most certainly permits this kind of approach to contributory negligence apportionment, ie. looking at broader concepts of blameworthiness (including by implication at least, public policy matters). However, Basten JA’s restraint provides some food for thought. His Honour’s approach seems to imply that any justification for an approach by which motorist and pedestrian should be treated differently simply because of the former’s greater propensity to cause harm is not necessarily borne out in the relevant legislative provisions.
This is of particular interest in light of Basten JA’s observation at  that contributory negligence is ‘a creature of statute in this jurisdiction’.