[co-author: Rose Bollard]
In the Nominal Defendant v Ross  NSWCA 212, the NSW Court of Appeal increased the contributory negligence assessment, reducing the Respondent’s award of damages from $328,000 to $266,939. The basis for this decision was two-fold: revised factual findings by the Court and further consideration of how the standard of care should be applied to pedestrians and drivers.
In 2008, Dr Ysaisah Ross, the Respondent, was injured when an unidentified minibus collided with him outside Terminal 2 at Sydney Airport. He sued the Nominal Defendant, the Applicant, for damages for serious injuries to his right leg and a fracture of his right foot.
The Respondent alleged that the driver of the minibus was negligent in failing to keep a proper look-out for pedestrians, failing to break earlier than he did and by driving so closely to the kerb. The Appellant did not dispute that the collision occurred, but denied that the driver was negligent. It also alleged that the contributory negligence of the Respondent should be assessed at 60%. This was on the basis that the Respondent failed to keep a proper lookout for himself when crossing the road, failed to use a nearby crossing and walked in the path of the minibus.
At first instance, the primary judge in the District Court found that the driver had been negligent and assessed the contributory negligence of the Respondent at 20%. He was awarded $328,000. He also found that the Respondent had satisfied his duty of due search and inquiry.
The Nominal Defendant appealed all three findings. On appeal, the percentage of contributory negligence on the part of the Respondent was increased from 20% to 35%. The main reason for this was that Hoeban J disagreed with key factual findings of the primary judge which affected the assessment of contributory negligence. Hoeban J refuted the finding that the Nominal Defendant’s actions constituted “separate instances of negligence.” He found that the driver’s failure to keep a proper lookout was the particular of negligence and that the actions he could have taken to avoid the accident (eg adjust the speed, driver further from the kerb, etc) were not separate instances of negligence. The Court rejected the primary judge’s findings that the Respondent had kept a proper lookout initially, as they were found to be inconsistent with the evidence.
The Court highlighted the difficulty in assessing contributory negligence when the plaintiff is a pedestrian and the defendant is a driver. Whilst the driver and the pedestrian must both protect against the risk of harm to the pedestrian, “the precautions which each should reasonably take will be different in kind.” In many cases, the actions of the driver and the pedestrian may have contributed roughly equally to the accident, however, in many cases the driver has been held to be more culpable as the standard of care and skill required of drivers is higher due to the potentially serious harm caused by vehicles.
This case highlights the difficulty in assessing claims of contributory negligence and confirms that in cases where two persons must take precautions against the same risk of harm, they may be held to different standards depending on the impact of their individual actions.