Risky business – when obvious is not inherent – The Nominal Defendant v Buck Cooper [2017] NSWCA 280

Author: Zeb Holmes

Judgement Date: 3rd November, 2017

Citation: The Nominal Defendant v Buck Cooper [2017] NSWCA 280

Jurisdiction: Supreme Court of New South Wales [1]


  • An apportionment finding will only be set aside where it could be characterised as unreasonable or plainly unjust or outside an appropriate range.
  • For the manifestation of a risk which may occur in the future, a risk which can be avoided by the exercise of reasonable care and skill is not an inherent risk.
  • It is only in ‘special and exceptional’ circumstances that a driver will not owe another road user a duty of care. Such circumstances would ordinarily be limited to those cases involving a joint criminal enterprise.


The plaintiff sustained injuries in a motor vehicle accident on 16 October 2013. The plaintiff and his friend, Mr Lamont, were drinking heavily together the night preceding the accident. At some stage during the night, the two started riding their motorcycles along Lake Conjola Entrance Road. While driving in opposite directions, Mr Lamont drove over the centre line of the road and collided with the plaintiff, who was travelling in the opposite direction.

The plaintiff claimed damages against Mr Lamont, who was uninsured and unregistered at the time of the accident, invoking the involvement of the Nominal Defendant (the defendant).

The primary judge apportioned liability for the accident – Mr Lamont (67%) and the plaintiff (33%). The defendant appealed that apportionment, on the basis of erroneous factual findings by the trial judge.

The defendant also appealed the finding of liability on the basis that the harm suffered by the plaintiff was the materialisation of an inherent risk, which the plaintiff would not be liable for under s 5l of the Civil Liability Act 2002 (NSW) (the CLA). Similarly, in the circumstances of their involvement and the plaintiff’s own negligence, the defendant submitted that the plaintiff was not owed a duty of care as a road user.


Payne JA, with McColl JA and Garling J in agreement, dismissed the defendant’s appeal. His Honour upheld the decision of the trial judge, despite two errors of fact, as these did not materially alter the apportionment of blame for the cause of this accident.

His Honour held that the trial judge’s finding of apportionment was not outside an appropriate range. The parties were both found to have been intoxicated, fatigued, driving without headlights and at a similar speed. The divergence in apportionment was primarily due to the fact that the accident had occurred in the plaintiff’s lane and the 67% to 33% split was upheld as appropriate in these circumstances.

His Honour found that, while the plaintiff entered into a dangerous situation, the damage which eventuated was not an inherent risk. Therefore, s 5l of the CLA did not apply. His Honour also found that the involvement of the plaintiff in this activity, despite his own negligence, did not warrant a finding of ‘special and exceptional circumstances’ where a duty of care could be abrogated.

Why this case is important

This case is important as it clarifies the circumstances in which a finding of apportionment will be set aside, specifically in situations characterised as unreasonable, plainly unjust, or outside an appropriate range.

This case also clarifies the distinction between an obvious risk of an activity and an inherent risk. An activity can involve some inherent risks by way of the nature of that activity, but that does not mean that every harm is the manifestation of an inherent risk.

A future risk is only an inherent risk if it cannot be avoided by the exercise of reasonable care and skill. Therefore, the question was whether the plaintiff faced the same inevitable risk even if Mr Lamont exercised reasonable care and skill. As Mr Lamont was capable of exercising this reasonable care and skill in riding on the correct side of the road, complying with the speed limit and keeping a proper lookout, the eventual harm was not the manifestation of an inherent risk.

This case affirms the rule in Joslyn v Berryman[2] that only ‘special and exceptional’ circumstances would remove the duty of care owed by one road user to another. Examples cited by the primary judge included those involving a joint criminal enterprise, such as a game of ‘chicken’ or illegal drag racing. Cases where the victim is merely a fatigued and intoxicated driver do not equate to special and exceptional circumstances.



[1] McColl and Payne JJA and Garling J.
[2] (2003) 214 CLR 552.