MENDE v LEIGHTON CONTRACTORS PTY LTD [1993] NSWCA 178

MENDE v LEIGHTON CONTRACTORS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, HANDLEY and Cripps JJA 22, and 23 March 1993, 23 March 1993

[1993] NSWCA 178

The issues for appeal were, first, whether the jury was entitled to make a finding of contributory negligence and, second, if they were, was the apportionment of 40% blame a finding that was not reasonably open on the evidence.

Held: No contributory negligence was proved and, even if it was, no jury would find the appellant's actions contributed 40% to the accident. Illiopoulos v Victorian Railways Board (1981) 55 ALJR 668 Kondis v State Transport Authority (1984) 154 CLR 672 Commissioner for Railways (NSW) v O'Brien (1958) 100 CLR 211 O'Connor v Commissioner for Government Transport (1954) 100 CLR 225 Pateman v Higgin (1957) 97 CLR 521 Hampton Court Ltd v Crooks (1957) 97 CLR 367

Cripps JA This is an appeal from the verdict of a jury in favour of the appellant on 19 July 1991. The jury found for the appellant on liability and assessed damages in the sum of $235,000. It also found the appellant guilty of contributory negligence and apportioned liability as to sixty per cent blame to the respondent and forty per cent to the appellant. The only issues in this appeal are whether the jury was entitled to make a finding that the appellant was guilty of contributory negligence and, if it was, whether the apportionment of forty per cent blame was a finding that was not reasonably open on the evidence.

At the trial the appellant did not ask the judge to take the issue of contributory negligence away from the jury. The first question that arises, therefore, is whether this Court should entertain the appeal on the ground that there was no evidence entitling the jury to come to the conclusion it did. The Court has the power to entertain such appeal and I am of the opinion, in the circumstances of this case, that it should exercise the power. In my opinion, a finding of forty per cent contributory negligence could not, on any view of the evidence, possibly be justified and would have resulted, in any event, in a new trial being ordered.