'State of Origin' – competing constructions on civil liability – Chu v Russell [2016] TASFC 1

The plaintiff was riding his bicycle along the left-hand side of a country road in Tasmania with a friend. He was approaching a T-junction where he intended to turn right. At this point in the road, a turn out lane on the left side of the road begins to open so that by the time travellers reach the T-junction there are two separate lanes. The plaintiff checked the road behind him and saw the defendant driving towards him. The road approaching the T-junction is a long, straight and unobstructed road. The defendant was travelling at approximately 100km per hour when he first noticed the plaintiff and his friend about 100m ahead. He slowed to 90km per hour and then sped up again slightly as he began to pass the plaintiff.

Without signalling to the oncoming traffic, the plaintiff began crossing the road at an angle of 20 degrees and a speed of 15km per hour. The plaintiff was struck by the defendant's vehicle causing serious injury. The defendant alleged the plaintiff moved suddenly into the path of his vehicle.

Wood J, in the primary decision, cited Teubner v Humble [1963] HCA 11; (1961) 108 CLR 491 at 504:

Her Honour went on to discuss the vulnerability of the plaintiff in the situation.² She compared the respective duties of a motor vehicle driver departing from the standard of care of a reasonable motor vehicle driver and a cyclist departing from the standard of care of a reasonable cyclist.

Her Honour reasoned that the extent to which the defendant departed from the requisite standard was substantial, considering the combination of speed in the vicinity of a vulnerable road user and inattention. In contrast, the plaintiff's departure from the requisite standard was significant but not substantial.

Her Honour found the defendant negligent and the plaintiff contributorily negligent in the order of 30%.

Tasmania's corresponding legislative enactment to the Motor Accidents Compensation Act 1999 (NSW) is the Motor Accidents (Liabilities and Compensation) Act 1973 (TAS). However, in respect of apportionment of liability, only a provision for the contravention of not wearing a seatbelt is dealt with in that legislation.

Section 4(1) of the Wrongs Act 1954 (TAS) provides a more general power to courts that damages may be reduced up to 100% as the court thinks just and equitable, having regard to the claimant's share in the responsibility for the damage.

Section 23 of the Civil Liability Act 2002 (TAS) sets the standard of care which applies equally to determining whether a plaintiff has been contributory negligent. It is in near identical terms to s 5R of the CLA NSW.

The Full Bench of the Tasmanian Supreme Court was split in its decision. In the majority judgment, Blow CJ (with Porter J agreeing) determined that a more appropriate finding was that the parties equally contributed to the accident and, accordingly, a finding of 50% contributory negligence was made.

Blow CJ believed the primary judge erred by "reaching a conclusion to the effect that the respondent's departure from the standard of care required of a reasonable cyclist was not as substantial as the appellant's departure from the standard of care required of a reasonable motorist".³ His Honour explained:

His Honour cited the High Court of Australia's decision of Cocks v Sheppard⁵ which determined the driver of a semi-trailer was more culpable than a motorcyclist because his vehicle was capable of causing great damage. Consideration to other decisions such as Watt v Bretag⁶ and Neumann v The Ship 'Palsaert'⁷ was also undertaken which followed that authority.

Importantly, no reference to the recent New South Wales Court of Appeal (NSWCA) decisions where s 5R of the CLA NSW was invoked in conducting the weighing of culpability exercise.

In coming to the 50% figure, his Honour, after making some important distinguishing observations of the facts, deemed the plaintiff had departed from his duty more than the defendant had departed from his duty. However, an equal contribution was settled upon when the plaintiffs' conduct was counter-weighted by his vulnerability and the defendant's status as a 'lethal weapon'.

The NSWCA decisions in Cosimidis⁸ and T and X Company⁹ have arguably seen a shift in the way contributory negligence is determined in motor vehicle accidents involving pedestrians and cyclists. However, despite the reforms of civil liability in all states and territories in 2002 following the recommendations in the Ipp report¹⁰, the nuances between states is illustrated in the approach to such accidents.

In New South Wales, the recent primacy of the principle of self-responsibility has heralded an era which promotes parties to take better care of their own safety. The approach to contributory negligence requires a weighing of a parties contribution to the accident and not the ability to inflict harm through their negligence.

We highlight that it is still likely that there will be challenges to the NSWCA's approach, both Cosmidis and T and X Company being majority decisions of the Court. Nevertheless, the principles espoused by the majority have unanimously been accepted by the Australian Capital Territory Court of Appeal in applying New South Wales law in Steen v Senton¹¹ and insurers should look to appellate court decisions on civil liability reform in delivering a consistent approach nationally.