WILLIAMS v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1995] NSWCA 516

WILLIAMS v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MEAGHER and COLE JJA 15 March 1995, 6 April 1995

[1995] NSWCA 516

NEGLIGENCE — contributory negligence apportionment — passenger/owner gives keys to intoxicated probationary driver — falls asleep on back seat — crash ensues — trial judge reduces — damages by 80 per cent — whether error — held: (by maj): Not. Suncorp Insurance and Finance v Blakeney (1993) 18 MVR 361 (CAQ) distd.

DAMAGES — video film — advantages of trial judge.

INSURANCE — compulsory motor vehicle third party insurance — relevance to operation of apportionment legislation- statutory contest of operation of apportionment. Mitchell vy GIO (NSW) (1992) 15 MVR 369 (NSWCA) consd.

WORDS and PHRASES — "just and equitable" — "responsibility for the damage".

NEGLIGENCE — contributory negligence — apportionment — reduction for contributory negligence — reduction for knowing conduct of owner of motor vehicle providing keys to fellow traveller known to be affected by alcohol owner proceeds to fall asleep on the backseat of a vehicle — driver known also to be a probationary driver — other passenger, supervising driver, known to be intoxicated by alcoholic liquor and prone to sleeping — vehicle driven out of control crashes and injures owner — owner sues and recovers damages of $137,641 — primary judge (Herron DCJ) reduces judgment by 80 per cent for contributory negligence — held: (Cole JA; Meagher JA concurring; Kirby P dissenting): The apportionment should not be disturbed by the Court of Appeal. Talbot-Butt v Holloway (1990) 12 MVR 70 (NSWCA), McGuire v Government Insurance Office (NSW) (1990) 11 MVR 385 (NSWCA); Suncorp Insurance and Finance v Blakeney (1993) 18 MVR 361 (QCA) considered; Pennington v Norris (1956) 96 CLR 10; Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492; 59 ALR 529 (HC) applied. Discussion by the Court of apportionment legislation and its operation in motor vehicle cases. Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369 (NSWCA) considered.