Blameless accidents: findings of 100% contributory negligence reserved for worst category of cases – Davis v Swift [2014] NSWCA 458

Author: Laura D'Alessandri

Judgement Date: 22nd December, 2014

Citation: Davis v Swift [2014] NSWCA 458

Jurisdiction: Court of Appeal[1]

In Brief


  • Contributory negligence in a blameless accident is determined by the plaintiff’s departure from what would be expected from a reasonable person in the plaintiff’s position.
  • A reduction of 100% is reserved for contributory negligence of the worst category.

Background

The plaintiff sustained injuries on 20 March 2009 when her right leg was struck by the defendant’s vehicle as the defendant pulled away from the parking lane. The plaintiff commenced proceedings for damages in negligence. The District Court accepted the defendant’s version of events that the plaintiff had stepped backwards from the middle of the road into the path of the defendant’s vehicle. The trial judge held there was no breach of duty of care by the defendant, but accepted that the plaintiff was injured in a blameless accident. The trial judge determined that the plaintiff’s damages should be reduced by 100% for her contributory negligence.  Our case note of the District Court decision can be found here.

The plaintiff challenged the primary judge’s findings as to liability, contributory negligence and assessment of damages.


Court of Appeal decision

Justice Meagher handed down the majority judgment with Leeming J agreeing. The Court of Appeal maintained the trial judge’s finding of no breach of duty of care by the defendant, but agreed that the accident was blameless.

The Court of Appeal determined that the trial judge erred in assessing the plaintiff’s degree of contributory negligence. The trial judge described the plaintiff’s conduct as the ‘sole cause of the accident’. In doing this, the trial judge took into account impermissible considerations, which the Court of Appeal determined would mandate a finding of contributory negligence of 100% in all blameless accident cases because by definition, the defendant would never be culpable.

However, the Court of Appeal determined that the plaintiff’s conduct was not an example of a worst possible case. It was not inevitable that the defendant’s vehicle would run over the plaintiff’s foot and the plaintiff did not consciously place herself in a position of danger or attempt to cross the road when her judgment was affected by alcohol or drugs. Accordingly the Court of Appeal found 80% contributory negligence.

Justice Adamson provided a dissenting judgment in relation to contributory negligence. Her Honour considered the trial judge’s phrase of the plaintiff being ‘the sole cause of the accident’ was only an expression that the plaintiff’s conduct amounted to the only cause that involved culpable conduct. Her Honour would have maintained a 100% reduction for contributory negligence.


Implications

This case demonstrates that the Court is wary of making reductions of 100% contributory negligence in blameless accidents. This case suggests a reduction of 100% contributory negligence in a blameless accident is reserved for those actions involving a plaintiff’s conscious decision to place him or herself in a position of danger or when the plaintiff’s judgment was affected by alcohol or drugs.

Citing Axiak V Ingram[2], Justice Adamson noted that the court’s construction of s 7A of the Motor Accidents Compensation Act 1999 was to obliterate any distinction between contributory negligence which was causal of the event (such as a pedestrian walking backwards on a busy road) and contributory negligence which aggravated the damage suffered (such as a passenger failing to wear a seatbelt). Her Honour said that had the word ‘person’ been construed to include the plaintiff then s 7F (the provision which allows a reduction for contributory negligence) would only apply to the second category.

As the parties did not invite the Court of Appeal to reconsider the correctness of Axiak v Ingram, Justice Adamson did not take this any further.

Justice Meagher hypothesized that in circumstances where the driver’s actions, whilst not negligent, may have contributed to the accident, a different approach to contributory negligence may need to be taken to that adopted in Axiak v Ingram.

There appears to be some disagreement in the Court of Appeal as to the methodology and reasoning adopted in Axiak v Ingram regarding blameless accidents and contributory negligence. The Court of Appeal appears quite willing to revisit this decision, if invited to do so.

If this were pursued further and a determination made, it would result in significantly reducing the opportunity for insurers to argue for a reduction in damages. Such a situation would challenge s 5R of the Civil Liability Act 2002.


  1. Meagher, Leeming JJA and Adamson J
  2. Axiak v Ingram [2012] NSWCA 311