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Barry Lane
9 August, 2006  
Re-assessing the contributory negligence caper

Despite the High Court’s lecture about appeal judges fiddling with jury apportionments for contributory negligence, the Victorian landscape is littered with the Court of Appeal’s handiwork at improving jurors’ thinking

imageJuries possess, we are constantly told by barristers and judges, lakes of wisdom and oceans of experience and commonsense. How is it then that they get the contributory negligence caper so wrong, according to some appeal court judges?

Justice Harper of the Victorian Court of Appeal in Moller v Trollope Silverwood and Beck Pty Ltd [2004] VSCA 22 explained that contributory negligence at common law:

”[C]onsisted in the failure of a plaintiff to take reasonable care for the protection of his or her person or property. A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent person, he would expose himself to risk of injury. But his conduct must be judged in the context of a finding that the employer has by failing to use reasonable care exposed him to unnecessary risks. The question will often be, and in this case the appellant insisted that it was, whether – in the circumstances and under the conditions in which he was required to work – the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage.”

When a jury has to decide between the negligence of the defendant and any contributory negligence of the plaintiff, a finding of apportionment is involved. On this issue HH went on to quote from the leading High Court authority of Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 A.L.J.R. 492 at 493-4:

“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’ ... Such a finding, if made by a judge, is not lightly reviewed. The task of an appellant is even more difficult when the apportionment has been made by a jury.”

With those statements of principle in mind, and with that well-known aphorism from Lord Denning (juries are as “inscrutable as the sphinx” – Ward v James [1966] 1 QB 273 at 301), it is natural to think that upsetting a jury verdict on contributory negligence would be pretty difficult.

In Moller, Justice Harper and his fellows in appeal (Batt and Vincent) were going to have none of it. The jury said that they found the worker-plaintiff 40 percent responsible for his injury and that was that.

However, the more one looks at this question the more intriguing and problematic it becomes. Judges can get themselves into a helluva muddle when they seek to upset the wisdom and commonsense of a jury.

Justice Harper gave as an example Liftronic Pty Ltd v Unver (2001) 179 ALR 321:

“Liftronic Pty Ltd v Unver was a case in which the respondent sustained injury to his back while lifting heavy rails in the course of his employment with the appellant. The jury found that he was contributorily negligent, and reflected this by a reduction of 60 percent in his damages. He appealed to the New South Wales Court of Appeal on the ground that the finding of contributory negligence to the extent of 60 percent was perverse.

The Court of Appeal by majority accepted this, and substituted a finding of contributory negligence of 20 percent in reduction of the respondent’s damages. The appellant having been granted special leave to appeal to the High Court, Gleeson CJ and McHugh, Gummow and Callinan JJ. (Kirby, J dissenting) allowed the appeal.

In their joint judgment, Gummow and Callinan JJ said:

‘The only ground of appeal in this court is that the Court of Appeal erred in substituting an assessment of 20 percent for contributory negligence for that of 60 percent by the jury.

‘In this case a properly instructed jury did exactly what the apportionment legislation required them to do, to apportion negligence between the parties on a just and equitable basis. It was not for the Court of Appeal to substitute its own opinion for that of the jury…

‘The apportionment of fault however was very much a matter for determination by the jury whose collective knowledge and experience of the workplace were unlikely to be inferior to those of judges. The different view of the majority of the Court of Appeal from the jury’s view is probably indicative of too ready a judicial inclination to absolve people in the workplace from the duty which they have to look out for their own safety which will often depend more, or as much, upon their own prudence and compliance with directions, as upon any measure that a careful employer may introduce and seek to maintain.

‘A jury is uniquely well qualified to decide, to use the language of Mason, Wilson and Dawson JJ in Braistina, ’[w]hat is considered to be reasonable in the circumstances of the case [according to] current community standards’.’ ”


Against that background it’s sobering to consider the recent occasions on which the Victorian Court of Appeal has jumped in and rewritten jury apportionments. A few examples in descending order of age are:

  • Paltidis v The State Council of the Young Men’s Christian Association of Victoria Inc [2006] VSCA 122 (verdict of 70 percent reduced to 25 percent).
  • Del Romano v Turner [2002] VSCA 166 (verdict of 90 percent reduced to 50 percent).
  • Kenyon v Barry Bros Specialised Services Pty Ltd [2001] VSCA 3 (verdict of 85 percent set aside and new trial ordered).
  • Butler v Rick Cuneen Logging Pty Ltd [1997] 2 VR 99 (verdict of 87 percent set aside and new trial ordered).
  • Kulczycki v Metalex Pty Ltd [1995] 2 VR 377 (verdict of 75 percent set aside and new trial ordered).

    The usual justification relied on to set aside a jury’s verdict is that the trial judge misdirected the jury on some question or other. However, it occurs to me that the real reason is that appeal courts simply don’t like the assessments.

    It can also be observed that the higher the assessment against plaintiffs, particularly if they are workers, the more likely it is that it will be set aside.

    Can’t say fairer than that, can you?


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