Tag Archives: civil liability act

Contributory Negligence: spotlight on both parties…and elsewhere?

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 [2014] 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 [19]):


…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 [50]:


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 [14] that contributory negligence is ‘a creature of statute in this jurisdiction’.

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High Court Decision in Strong v Woolworths – ‘probability theory’ vs common experience


Plaintiff personal injury lawyers are all agog over the recent High Court decision of Strong v Woolworths [2012] HCA 5. But has it really moved things much in their favour or was it simply a case of the best possible response to a difficult set of facts?

The facts themselves are straightforward: in an unfortunate accident, an amputee woman on crutches slipped on a hot chip dropped on the sidewalk of a shopping centre, which was property under the care and control of Woolworths. On the evidence, there was no way of determining when the chip had been dropped but it was agreed the accident took place at 12.30pm.

Woolworths conceded that it had no proper system of inspection in place to prevent this kind of accident, but argued that even if it did, the errant chip would not have been detected in time to prevent the accident.

This argument raised the question of causation under section 5D of the Civil Liability Act: was Woolworths’ negligence in failing to have a proper system of inspection and cleaning in place the cause of the harm suffered?

A key step in the reasoning process adopted by the majority of the High Court was to determine that a reasonable system of ‘inspection and removal’ would require intervals between checks of not more than 20 minutes.

Therefore, for Woolworths to succeed the Court would need to find that the chip was dropped after the time of the last hypothetical inspection at 12.10pm. If so, the argument holds true that the chip would not have been detected by the time of the accident at 12.30pm, regardless of whether or not there was a proper system of inspection in place.

Conversely, if the Court determined that the chip was dropped before 12.10pm the Woolworths argument would be defeated and the plaintiff would be entitled to succeed.

Given the supermarket had been open since the start of normal trading hours, the plaintiff’s counsel argued that by sheer dint of comparing the time frames involved, the chip was more likely to have been dropped in the period between 8am and 12.10pm rather than the much shorter period between 12.10 and 12.30pm.

This argument had been defeated in the NSW Court of Appeal decision by one based more upon common sense and experience than numbers. In the court below Woolworths’ counsel, Mr Maconachie QC argued that as hot chips are more likely to be eaten at lunch, and there are more people around at that time generally (among whom, there are presumably those eating hot chips), the chip was more likely to have been dropped in the period closest to lunchtime (ie- between 12.10 and 1230pm). That’s the beauty of the common law, it’s perhaps one of the last jurisdictions left where common sense and experience have a chance to have their say.

Each of these two reasoning processes (common experience vs numbers) have their difficulties but the NSW Appeal Court judges chose common experience. However, the majority of High Court overturned the Court of Appeal and went for the odds (at [38]):


“The probabilities favoured the conclusion that the chip was deposited in the longer period between 8am and 12.10pm and not the shorter period between 12.10pm and the time of the fall.”


Perhaps the High Court felt that to permit Woolworths to escape liability in the face of no proper inspection system would prevent justice being done.

In his dissenting judgment Justice Heydon took a more hardline approach – as the plaintiff hadn’t positively discharged the burden of proving her case she should lose. This seems in keeping with the requirements of section 5E of the Civil Liability which states that the plaintiff bears the onus of proof.

In other words, it was for the plaintiff to prove via the evidence that the chip was dropped before the moment at which the last hypothetical inspection prior to the accident would have taken place, and that her recourse to “probability theory” in attempting to do this was “unconvincing”. His Honour thought the plaintiff needed more than just favourable odds to make out her case.

It is rare that there will be no evidence at all before the court on a matter so crucial. Both the NSW Court of Appeal and High Court were faced with a difficult choice between what some might consider the lesser of two evils; both common sense and probabilities are an inexact means of deciding such a serious and unfortunate situation.

If there was anything more substantial in evidence the case would not have gone nearly this far, which begs the question whether the decision will be treated as one limited to its facts or whether it will see the unlikely proliferation of reasoning based on “probability theory” in our court system. Only time will tell.


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