“Drink and Ride at Your Peril – 80% Contributory Negligence”: Mackenzie -v- The Nominal Defendant [2005] NSWCA 180

Author: Peter Hunt

Judgement Date: 7th June, 2005

Citation: Mackenzie -v- The Nominal Defendant [2005] NSWCA 180

Jurisdiction: NSW Court of Appeal

In Brief

  • In assessing whether an intoxicated Plaintiff is guilty of contributory negligence, the Court must consider how a reasonable sober person would have acted in the circumstances.
  • However, once a finding of contributory negligence is made, the Court is permitted to take into account the Plaintiff’s intoxication in assessing what reduction should be made for that contributory negligence.


The NSW Court of Appeal handed down its decision in Mackenzie v The Nominal Defendant on 7 June 2005.

The appeal was from the only judgment of which we are aware in which the Trial Judge found breach of duty of care, but reduced the Plaintiff’s damages by 100% for contributory negligence.

The Plaintiff was the pillion passenger on a uninsured motor cycle ridden by Mr Aaron Brown. Mr Brown and the appellant were both heavily affected by alcohol. The motor cycle ran off the road and the appellant was severely injured.

At first instance, Cooper ADCJ found that Mr Brown had breached his duty of care to the Plaintiff. He had clearly done so by riding the motorcycle whilst intoxicated and subsequently losing control.

However, in finding 100% contributory negligence, Cooper ADCJ found that the Plaintiff was the author of his own misfortune. The motor cycle was owned by the Plaintiff. He had control over it at all times. Nevertheless, he gave Mr Brown the keys to the bike and decided to ride with him even though he knew Mr Brown had no experience in riding motor bikes, was unlicensed and was affected by alcohol.

The Plaintiff appealed against the finding of 100% contributory negligence and contended that 25% was a more reasonable reduction.

Court of Appeal

In the Court of Appeal, Giles JA delivered the leading judgment. Short concurring judgments were delivered by Stein AJA and Gzell J.

Three grounds of appeal were argued in the Court of Appeal. The Plaintiff contended that the Trial Judge erred:

  • In accepting Mr Brown’s evidence of the events leading up to the use of the motor cycle;
  • In determining what was just and equitable, on an objective standard, of a reasonable person in the position of the Plaintiff, without regard t his intoxication; and
  • In failing to have regard to the whole of the conduct of the Plaintiff and Mr Brown, including the Plaintiff’s intoxication rendering him incapable of knowing that Mr Brown was unlicensed, inexperienced and intoxicated.

The Court of Appeal held that there was no error in the Trial Judge’s findings of fact.

In assessing the Trial Judge’s decision on contributory negligence, Giles JA drew a distinction between:

  • Applying an objective test in determining whether the plaintiff was guilty of contributory negligence (what would an ordinary sober person have done in the circumstances); and
  • Applying a subjective test in assessing the appropriate percentage reduction for contributory negligence.

His Honour observed, at paragraph 88, however, that it was inappropriate to talk solely of objective and subjective tests:

“While the terms are convenient, it can be misleading to refer to an objective test and a subjective test, and to draw a sharp line between them. In determining contributory negligence there must be regard to the circumstances of the plaintiff whose conduct is in question, because the ordinary reasonable man is engaged in the person’s conduct. Under s 5R of the Civil Liability Act, the standard of care required of the person who suffered harm is “that of a reasonable person in the position of that person”, and contributory negligence is determined subjectively so far as it is to be determined “on the basis of what that person knew or ought to have known at the time” (emphasis added). Section 138(2)(b) of the Motor Accidents Compensation Act refers to impaired driving ability of which the injured person “was aware, or ought to have been aware” (emphasis added). Further, referring to a wholesale objective test or subjective test overlooks that in determining what percentage reduction is just and equitable there may be reference to the subjective (the plaintiff’s conduct) and the objective (the reasonable man’s conduct)”.

In holding that the Trial Judge applied the correct test, his Honour reasoned at paragraph 93, as follows:

“When arriving at his assessment of 100 percent contributory negligence, the judge proceeded upon his findings as to the appellant’s conduct and his actual knowledge. He did not exclude from his consideration that the appellant was intoxicated, or the circumstances in which he came to be intoxicated. His attention was drawn to those matters in the appellant’s submission recorded in his [165], and he did not reject them as irrelevant. Rather, given his findings as to the appellant’s conduct and knowledge, he did not think they took the case out of a worst situation of contributory negligence.

The appellant’s complaint should not have been that the judge applied an objective test in determining a just and equitable percentage reduction, but that his subjective basis in the appellant’s conduct and knowledge was flawed because not tempered by regard to whether in acting as he did, and with the knowledge found, the appellant’s intoxication caused him to act impulsively and without full consideration of what might occur.”

Ultimately, Giles JA held that the Trial Judge erred in finding 100% contributory negligence, by failing to give sufficient weight to the Plaintiff’s own intoxication which caused him to be incapable of fully processing the danger presented by riding with an unlicensed, inexperienced and intoxicated rider. His Honour held that contributory negligence should have been assessed at 80%.

His Honour concluded, at paragraphs 111 and 112, as follows:

“In the present case Mr Coles’ (sic) house seems to have been within walking distance of the appellant’s house, and the drinking was done without any driving or riding in contemplation. On the other hand, the appellant let himself get into a thoroughly intoxicated condition which, on any consideration before he did so, would have been seen as inimical to any rational and well thought out decision, whether as to riding the motor cycle or anything else. Deliberate drinking to the point of severe intoxication exposed him to acting impulsively and without full consideration of what might occur, which happened to occur in relation to riding the motor cycle. The departure from the standard of care of the reasonable man at this point cannot be ignored in the degree of departure in putting Mr Brown in the driver’s seat.

“I do not think the justice and equity of the reduction in damages is, in these circumstances, significantly moved in the appellant’s favour. He did put Mr Brown in the driver’s seat, knowing that he was unlicensed, inexperienced and intoxicated; and acting irrationally and without well thought out decision was to be expected when he began and maintained his drinking. In my opinion, the just and equitable reduction in all the circumstances is 80 per cent.”


For these reasons, the Court of Appeal allowed the Plaintiff’s appeal.

Rather than reducing the Plaintiff’s damages (agreed at $4.75 million) by 100% for contributory negligence, the Court of Appeal substituted a reduction of 80%.