Author: Laura D'Alessandri   
Judgment Date: 22 July 2014
Citation: The Court of Appeal has implemented a new test for contributory negligence, particularly when considering accidents involving pedestrians.
Jurisdiction: Court of Appeal, New South Wales
In Brief

Since 1975, the ‘Podrebersek test’ called for the respective carelessness of each party to be weighed up against the potential for a driver to cause significant harm by virtue of controlling a ‘lethal weapon’.

The Court of Appeal now suggests that s 5R of the Civil Liability Act 2002 (CLA) calls for a test whereby only the parties’ respective carelessness is compared. The potential for harm is no longer a relevant consideration.

The Decisions

Until recently, the test which has been applied since 1985 was the ‘Podrebersek test’ (see Podrebersek v Australian Iron and Steel Pty Limited [1]), that is, the respective carelessness of each party was weighed up against the potential for a driver to cause significant harm by virtue of controlling a ‘lethal weapon’.

Since then, s 5R of the CLA was enacted to provide the ‘Standard of Contributory Negligence’. Section 5R provides that “the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person”

Three recent cases have looked at the interplay of s5R and the caselaw and found the following:

  1. Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139; The Court of Appeal did away with the Podrebersek test, replacing it with a test whereby the parties’ respective carelessness is compared;
  2. The Nominal Defendant v Ross [2014] NSWCA 212; The Court of Appeal upheld the Podrebersek test which looked at the potential for harm;
  3. T and X Company Pty Ltd v Chivas [2014] NSWCA 235; The Court of Appeal supported the new test.
Implications

It is clear there is disagreement within the Court of Appeal on this point. It is likely the issue will be considered by a full bench in the future.

In the meantime, however, the result of this new test should see higher reductions against careless pedestrians.

Insurers should not shy away from alleging contributory negligence in accident cases involving pedestrians.

Matters are no longer eligible for mandatory exemption if contributory negligence is alleged at greater than 25%. As such, in CARS matters, Submissions should be made drawing the CARS Assessor’s attention to the intention of the draftsmen of the CLA, which was to ensure that people take responsibility for their own safety, therefore, this purpose should be read into s5R. In litigated matter these issues should be raised in the Defence.

  1. (1985) 59 ALJR 492)

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