NSW Caselaw
Reported Decision: (2007) Aust Torts Reports 81-916 Appeal Outcome: Special leave refused with costs by the High Court - 18 April 2008
New South Wales Court of Appeal
CITATION: ACKLAND v COMMONWEALTH OF AUSTRALIA [2007] NSWCA 250
HEARING DATE(S): 14 February 2007
JUDGMENT DATE: 20 September 2007
JUDGMENT OF: Santow JA at 1; Ipp JA at 131; McColl JA at 152
DECISION: (1) Appeal upheld. (2) Judgment and verdict given below be set aside. (3) The case be remitted to the Common Law Division for retrial. (4) The respondent to pay the appellant's costs of the appeal. (5) The costs of the first trial be reserved for the judge hearing the retrial.
CATCHWORDS: TORTS - Contributory negligence at common law as applicable to damages as distinct from applicability to original accident - Availability of apportionment of damages in relation to contributory negligence at common law - Unavailability of s 10(1) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (the "1965 Act") as events pre-dated its coming into force - Events concerned collision of VOYAGER and MELBOURNE in 1964 with crew member (the plaintiff/appellant) subsequently bringing an action in negligence against the Commonwealth (the defendant/respondent) for damage including for subsequent psychiatric injury and associated excess alcohol abuse and binge eating - Allegation of contributory negligence on part of the plaintiff/appellant in alcohol abuse being self-induced and not caused by the accident - Jury assessed appellant's contributory negligence at 50% of the overall verdict in circumstances where there was no quantification given to or determined by the jury of damage attributable to the alcohol abuse or the psychiatric injury - Trial judge's directions to the jury challenged as requiring new trial and by reason of trial judge's subsequent erroneous determination after the jury verdict that the 1965 Act applied to require apportionment of damage - availability of new trial or verdict to be upheld. D -
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