Contributory negligence and the ‘Powerful Vehicle’ principle

Motor Vehicle Directions

Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139

The New South Wales Court of Appeal reconsiders the principles governing contributory negligence in motor vehicle accidents in light of s5R of the Civil Liability Act 2002.

The Respondent delivered a tanker load of fuel to the Appellant’s premises. While walking back to his tanker after completing the delivery, he was struck from behind by a forklift and suffered significant injuries. The Respondent brought an action for negligence.

In the District Court, Levy DCJ held, amongst other things, that the Respondent was not guilty of contributory negligence. The Court of Appeal set aside his findings on that issue.

In its deliberations, the Court of Appeal considered a line of authority stemming from the decision in Pennington v Norris (1956) 96 CLR 10 which placed emphasis on the causal potency of the conduct of motorists in the assessment of the culpability of the plaintiff and the defendant. The law was to the effect that the assessment should take into account ‘the fact that… the plaintiff’s conduct posed no danger to anyone but herself, while the defendant who was driving… was in charge of a machine that was capable of doing great damage to any human being who got in its way’ (per Handley JA in Talbot-Butt v Holloway (1990) 12 MVR 70).

Majority Judgment – Basten JA (Emmett JA agreeing):

Basten JA rejected the statement of Handley JA in Talbot-Butt as reflecting the law of contributory negligence in NSW and held that the correct approach to the assessment was to consider the relative culpability of the parties in accordance with the test for liability in s5B of the Civil Liability Act 2002.

Basten JA noted that the effect of s5R of the Civil Liability Act 2002 (which applies in motor accident cases) was to apply the same standard of care to the conduct of defendants as to victims, thus ‘… no distinction is made between the fact that … from one perspective the driver is in control of a vehicle that could cause serious harm to a pedestrian, whilst from the perspective of the pedestrian, it was the likelihood of serious harm which was to be considered’ [at 99].

He considered that the principle relied upon by the Respondent (echoing Pennington and Talbot-Butt) which assigned a more stringent duty of care to the defendant driver than to the victim was an approach at odds with s5R and was rejected.

Basten JA noted that in this case the Respondent was careless because he was, or ought to have been aware of, the presence of the forklift. Balancing that carelessness against the carelessness of the forklift operator, and the failure of the Appellant occupier to institute a safe system of work on the premises, he assessed contributory negligence at 30%.

Dissenting – McColl JA:

McColl JA applied the ‘just and equitable’ test in s138(3) of the Motor Accidents Compensation Act 1999 (NSW), with her assessment relying in part upon the fact that the Appellant was ‘in charge of a powerful vehicle’ while the Respondent did not ‘endanger the driver of the vehicle’. She assessed contributory negligence at 10%.


Taking into account that s5R reflects the requirement that individuals are expected to take reasonable care for their own safety, this decision confirms that the Civil Liability Act 2002 approaches the assessment of contributory negligence by requiring the same standard of care to be applied to a defendant as to a victim. As a result, it has implications for all claims in which contributory negligence is in issue and to which the Civil Liability Act 2002 applies but especially in the context of motor accidents involving pedestrians, cyclists or motorbikes, making it clear that in cases where the parties ‘… each were equally careless, liability should be shared equally’ (per Basten JA at [99]).

Authored by Mark Malley, Partner, Newcastle.

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