Mackenzie v The Nominal Defendant [2005] NSWCA 180

New South Wales Court of Appeal

CITATION: Mackenzie v The Nominal Defendant [2005] NSWCA 180

HEARING DATE(S): 7 April 2005

JUDGMENT DATE: 7 June 2005

JUDGMENT OF: Giles JA at 1; Stein AJA at 120; Gzell J at 121

DECISION: (1) Grant leave to the appellant to join Aaron Brown as respondent; dispense with service of the notice of appeal and appeal books upon him; (2) Appeal allowed; (3) Set aside the orders of Cooper ADCJ made following publication of his reasons on 8 July 2004, save as to the order as to the costs occasioned by proving that Mr Brown was the rider of the motor cycle at the time the plaintiff was injured; (4) Remit the proceedings to the District Court for further hearing; (5) Save as to the costs the subject of the order mentioned in 3, costs of the trial before Cooper ADCJ to be paid as ordered by the judge conducting the further hearing; (6) Respondent to pay the appellant's costs of the appeal.

CATCHWORDS: Motor cycle accident - uninsured motor cycle - pillion passenger injured - sues Nominal Defendant - rider and pillion passenger both heavily intoxicated - contributory negligence - statutory additions to common law - objective standard for contributory negligence - reduction according to what is just and equitable - role of pillion passenger's intoxication in what is just and equitable - depending on the circumstances, may ameliorate culpability.

Andrews v Nominal Defendant [1963] SR (NSW) 110; Bradshaw v Wallis (CA, 1 April 1996, unreported); Eastern Extension Australasia and China Telegraph Co Ltd v Federal Commissioner of Taxation (1923) 33 CLR 426; Fox v Percy (2003) 214 CLR 118; House v The King (1936) 55 CLR 499; Imperial Furniture Pty Ltd v Automotive Fire Sprinklers Pty Ltd [1967] 1 NSWR 29; Insurance Commissioner v Joyce (1948) 77 CLR 39; Joslyn v Berryman (2003) 214 CLR 552; McCamley v Harris (Young J, 2 September 1997, unreported); McPherson v Whitfield (1996) 1 Qd R 474; CASES CITED: Mendola v Warren (1993) 19 MVR 385; Miraflores v Livianos (1967) AC 826; Morton v Knight [1990] 2 Qd R 419; Nicholson v Nicholson (1994) 35 NSWLR 308; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; Smith v McIntyre (1958) Tas SR 36; Talbot-Butt v Holloway (1990) 12 MVR 70; Tasita Pty Ltd v Sovereign State of Papua New Guinea (1991) 34 NSWLR 691; Williams v Government Insurance Office (NSW) (1995) 21 MVR 148; Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25.