ACKLAND v COMMONWEALTH OF AUSTRALIA

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 -

Civil Procedure Act 2005 (NSW) s56 LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1965 (NSW) Part IV, s8, s10(1), s56, s58, Law Reform (Miscellaneous Provisions) Act 2000 (NSW) Supreme Court Rules Pt 33 r8A

Alford v Magee (1952) 85 CLR 437 Astley v Austrust Limited (1999) 197 CLR 1 Carlsholm (Owners) v Calliope (Owners), "The Calliope" [1970] P 172 Caswell v Powell Duffryn Associated Collieries Limited [1940] AC 152 Commonwealth v McLean (1996) 41 NSWLR 389 Davies v Mann (1842) 152 ER 588 Davies v Swan Motors Co [1949] 2 KB 291; [1949] 1 All ER 629 Fazlic v Milingimbi Community Inc (1982) 150 CLR 345 Fontaine v Quality Platers (1994) 12 WAR 71 CASES CITED: Froom v Butcher [1976] QB 286 Goldsborough v O'Neill (1996) 131 FLR 104 Insurance Commissioner v Joyce (1948) 77 CLR 39 Jones v Livox Quarries Ltd [1952] 2 QB 608 Joslyn v Berryman (2003) 214 CLR 552 Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 O'Connell v Jackson (1972) 1 QB 270 Radley v London and North Western Railway Co (1876) 1 AC 754 Smith v Badenoch [1970] SASR 9 Tuff v Warman (1858) 141 ER 231 University of Wollongong v Metwally (No. 2) (1985) 59 ALJR 481

PARTIES: Michael Kenneth ACKLAND (Appellant) COMMONWEALTH OF AUSTRALIA (Respondent)

F M Douglas, QC/ K M Connor/ W D Walsh (Appellant) COUNSEL: P Menzies, QC/ S Woods (Respondent)

SOLICITORS: James Taylor & Co (Appellant) Australian Government Solicitors (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT DATE OF DECISION: 29 March 2005, 8 April 2005

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40636/05 SC 20078/99

SANTOW JA IPP JA McCOLL JA

Thursday 20 September 2007 Michael Kenneth ACKLAND v COMMONWEALTH OF AUSTRALIA Judgment 1 SANTOW JA: INTRODUCTION This appeal relates to a jury trial dealing with a claim for psychiatric injury and economic loss against the Commonwealth, arising from the collision of the HMAS VOYAGER and the HMAS MELBOURNE on 10 February 1964. The trial proceeded before Cooper AJ, and a jury. Liability was admitted leaving only damages in issue. The jury returned a verdict for the appellant, Mr Ackland, a crewmember on the MELBOURNE of 50% of $136,000.00 ($68,000.00). The jury were directed to consider whether there was contributory negligence on the appellant's part in relation to his claim for post-accident alcohol abuse said to be associated with psychiatric injury. The jury assessed the appellant's contributory negligence at 50% and reduced the verdict amount accordingly. 2 The appellant challenges that verdict on a number of grounds, essentially directed to the following: (a) the Commonwealth's pleaded defence was mitigation and remoteness yet the case as put to the jury was contributory negligence; (b) the way the jury were directed at trial by reference only to contributory negligence and apportionment under statute not common law; and (c) contributory negligence in relation to post-accident alcohol abuse was wrongly put to the jury as a statutory not common law defence and on the basis that statutory apportionment was available, when: (i) it was now common ground on appeal that the statutory defence (under Part IV of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) ("the 1965 Act")) was never available, as it post-dated the collision in February 1964, being the wrong sued upon, and (ii) common law contributory negligence did not permit of any apportionment of damage but operated, if at all, as an absolute bar to recovery (a proposition disputed by the respondent).

The appellant accordingly seeks either that the verdict be set aside and a new trial ordered, or that the allowance for contributory negligence of 50% be set aside. As I explain below, damages were dealt with at trial, first by the jury and then by the trial judge. In neither the verdict, nor the subsequent judgment was there ever any precise quantification of the appellant's claim for post-accident alcohol abuse, or the psychiatric injury with which it was said to be associated, the contributory negligence being put as a defence to the former. 3 Thus on 8 April 2005 the trial judge entered judgment in favour of the appellant in the amount of $108,145.00. This was the verdict amount inclusive of interest, as calculated by the trial judge in two judgments (that of 29 March 2005 and a correcting one of 8 April 2005). In doing these calculations the trial judge first took the original verdict of $136,000.00 (before the 50% discount was applied) and apportioned that figure between: (a) general damages totalling $80,000.00 ($70,000.00 for past general damages and $10,000.00 for future general damages); and (b) $32,464.00 for economic loss ($30,000.00 for past economic loss and $2,464 for future economic loss). His Honour then halved each item (for the 50% referred to above) and applied an interest component, thereby reaching the amount of $108,145.00. 4 The basis of these calculations does not appear to have lain in any determinations made by the jury as to the splitting of the lump sum award. The trial judge framed his task as follows: "I have to make a determination consistent with the jury's verdict as to how much, if anything, was allowed for general damages and how much for special damages" (Red, 108K-N). 5 At trial counsel for the appellant acknowledged that it fell to the trial judge after the jury verdict to apportion damages: "MELICK: Your Honour has to break it up. Because the jury wasn't asked to break it up. Juries are given no guidance as to general damages. Therefore to say that is all general damages because it is such a low amount. The jury may have decided to give a very low amount for damages. We just don't know." (Black, 1212H-J) 6 On that basis, and "[d]oing the best [he could]" (Red, 108R), the trial judge apportioned damages in the manner outlined above. After delivering his judgment on 29 March 2005, his Honour did acknowledge the lack of precise detail in the process, it being a rough and ready one as his Honour observed: "HIS HONOUR: That is why I made a rough and ready calculation which I consider appropriate to compensate the plaintiff. I agree one can go into great mathematical [sic], I think it is unnecessary to in the circumstances of this case. That is the way I have decided to compensate the plaintiff." (Black, 1217T-U). 7 Thus it was that damages were determined by the jury as a lump sum, undifferentiated between psychiatric injury and economic loss. The trial judge then made the limited differentiation set out above. There was still no quantification of the claim for psychiatric injury, or for the alcohol abuse said to be associated therewith, beyond the overall figure for general damages. 8 That lack of quantification, bears on whether the common law of contributory negligence, if able to apply at all, could permit apportionment of damage in the broad-brush way done here, namely a reduction of 50% of the undifferentiated verdict amount. 9 The respondent submitted at trial that the appellant's post-collision alcoholism (and binge eating) amounted to contributory negligence being self-induced injury, the result of the appellant's own deliberate choice. The appellant submitted to the contrary, contending that these claims were associated with psychiatric injury (post traumatic stress disorder and depression) which was the result of the accident. 10 The trial judge directed the jury on contributory negligence in the manner I later set out. Subsequent to the jury verdict, but before the trial concluded his Honour, by agreement, then determined the legal effect of the jury verdict. His Honour concluded that the 1965 Act not common law governed apportionment of damages based on contributory negligence, applying what he said were the principles in Commonwealth v McLean (1996) 41 NSWLR 389. It is not disputed on appeal that his Honour was here in error in so concluding. The respondent contends however that the same result arises at common law with the judge's directions and summing up therefore sufficing, even if not explicitly so based. The appellant contends to the contrary, challenging the directions and summing up as being based on the unavailable 1965 Act.

SALIENT FACTS AND TRIAL PROCESS 11 The appellant was a crewmember of HMAS MELBOURNE on the night of 10 February 1964. That night, HMAS MELBOURNE collided with HMAS VOYAGER on the high seas about 20 miles south-east of Jervis Bay, cutting the latter in two. In the time after the accident, the appellant claimed to have experienced marked psychiatric distress and to have engaged in destructive behaviours in relation to alcohol and food. 12 The appellant filed a statement of claim on 25 February 1999 and an amended statement of claim on 31 January 2005. The essential pleadings were identical in each, alleging negligence on the part of the respondent. Specifically, the appellant alleged negligent conduct by the officers and crew of the HMAS VOYAGER, and/or the officers and crew of the HMAS MELBOURNE, and other officers and servants of the respondent, in relation to the collision. The appellant sought to recover damages for psychiatric injury and associated conditions (excessive drinking, etc as described below) and for economic loss. 13 The appellant sought to particularise that damage in a series of statements of particulars. There was a statement of particulars filed on 19 May 2004, followed by an amended statement of particulars on 11 August 2004 and a further amended statement of particulars on 28 February 2005. At paragraph 1 of the further amended statement of particulars (Red, 50) the appellant alleged that, "as a consequence of the collision between HMAS VOYAGER and HMAS MELBOURNE", the appellant suffered damage in the nature of chronic mild to moderately severe post traumatic stress disorder [PTSD] and/or moderately severe depression and/or anxiety and, "associated with one or more of these, a severe substance abuse disorder (alcohol)". At paragraph 2 an extensive list of specific symptoms was provided as to the damage suffered. 14 The appellant alleged at paragraph 2 of the amended and further amended statements of particulars (but not in the original statement) that he also suffered from a nervous eating disorder. This condition had required him to undergo surgery in the form of a laparotomy and gastric banding. In addition, the appellant suffered from gastro-oesophageal reflux and, as a result of his obesity, had developed osteoarthritis in his knees. 15 All three statements of particulars included details (at paragraph 3) concerning the alleged deleterious effects of the appellant's alcohol abuse and social withdrawal, the abuse being stated to have been "caused by [the appellant's] psychiatric injuries" and the withdrawal "caused by his injuries". The abuse and withdrawal were alleged to have had a negative impact upon the appellant's marital relationship, initially involving separation from his wife and later reconciliation but with "the marriage remain[ing] under constant strain". 16 The appellant further claimed (at paragraph 4) that his career ambitions had been hampered by his illness. Subsequent to the collision, the appellant "had lost all trust in the Navy, was disillusioned, was continuously anxious and at times, depressed". This led the appellant not to re-enlist in the Navy after the completion of his initial 12-year term (his stated original intention having been to continue in the Navy for at least 20 years). Hence the appellant was discharged from the Navy on 7 January 1974, allegedly "therefore [losing] a Naval career because of his injuries". Details were provided at paragraphs 8 and following of the further amended statement of particulars of his history thereafter of both periodic unemployment and employment as a labourer, truck driver, hotel manager and officer with corrective services. The appellant ceased employment generally on 10 September 1997 and has been in receipt of the disability pension since that time. 17 The pleadings so particularised appear to attribute the abuse of alcohol (similarly excessive eating) to the psychiatric injury, and thus indirectly to the collision. It was said that the alcohol abuse was "associated with" his psychiatric injuries [PTSD] which were themselves "a consequence of" the collision. 18 In response to the appellant's pleadings, the respondent filed an initial defence on 2 November 2001 and an amended defence on 29 October 2004. The amended defence, in particular paragraph 10, is the critical pleading in this appeal. The amended defence relevantly states: " CAUSATION 8. Further, the Defendant says the Plaintiff's alleged injuries, loss and damage, which are not admitted, were not caused or materially contributed to by the collision. REMOTENESS 9. Further, the Defendant says that, if the Plaintiff did suffer the non-psychiatric injuries as alleged, being substance abuse disorder (alcohol), gastro-oesophageal reflux, obesity, osteo-arthritis, whether or not aggravated by the alleged stress disorder, all of which are not admitted, then these were not caused or materially contributed to by the collision; and a. were too remote to be a proper basis for recovery of damages; and b. were of a different kind from that which was reasonably foreseeable. FAILURE TO MITIGATE 10. Further and in answer to the whole of the Statement of Claim, the Defendant says that if the Plaintiff did suffer the injury, loss and damage alleged, which is not admitted, the Plaintiff had a duty to mitigate his loss and to take all reasonable steps to minimise the effects of those injuries, but did not do so. Particulars i. Consuming food and alcohol in excessive quantities; ii. Consuming alcohol and continuing to consume alcohol when he knew or ought to have known it was injurious to his health; iii. Consuming food in excessive quantities and continuing to consume food in an excessive amount when he knew or ought to have known it was injurious to his health; iv. Failing to reduce or at least control his eating; v. Failing to take reasonable steps to seek advice on and/or heed advice on the injuries alleged to have been suffered; and vi. Failing to seek treatment or any appropriate treatment when he knew or ought to have known that such treatment was required." 19 There was no express mention in the respondent's pleaded defence of contributory negligence either at common law or by statute. The pleaded defence was expressly based on causation, remoteness and mitigation. Yet as the matter was argued at trial, attention was exclusively focused on contributory negligence by counsel on both sides and by the trial judge. Argument on appeal centred on divergence between pleading and argument and as to what in consequence was and should have been put to the jury. 20 At the appeal hearing, the respondent sought to file a further amended defence expressly pleading common law contributory negligence by the appellant, and in the alternative mitigation. The text of the proposed pleading as to contributory negligence under the further amended defence was as follows: "CONTRIBUTORY NEGLIGENCE 10. Further and in answer to the whole of the Statement of Claim, the Defendant says that if the Plaintiff did suffer any injury, loss and damage alleged, which is not admitted, then the injury loss and/or damage, was caused, or materially contributed to, by the Plaintiff. Particulars a. Consuming food and alcohol in excessive quantities; b. Consuming alcohol and continuing to consume alcohol when he knew or ought to have known it was injurious to his health; c. Consuming food in excessive quantities and continuing to consume food in an excessive amount when he knew or ought to have known it was injurious to his health; d. Failing to reduce or at least control his eating; e. Failing to take reasonable steps to seek advice on and/or to heed advice on the injuries alleged to have been suffered; and f. Failing to seek treatment or any appropriate treatment when he knew or ought to have known that such treatment was required." 21 The decision whether to grant or deny leave to file the further amended defence comprises one aspect of this appeal.

The Verdict and Surrounding Matters 22 I turn now to the course of the proceedings below, starting with verdict and the matters immediately surrounding it. At 10.30am on Thursday, 24 March 2005, the jury retired to consider its verdict (Black 1182J). Prior to this, the primary judge summed up to the jury as to the questions it was to consider and answer during its deliberations. These included alleged contributory negligence on the part of the appellant. The primary judge framed his remarks as to contributory negligence relevantly in these two passages: "Now, the defendant also says - and I referred to this yesterday - that the fact that he drank so much and became an abuser of the substance, even if it was a symptom of a psychiatric illness, was nonetheless contributory negligence on his part; that is, it was an act or a series of acts or conduct in which he failed to take reasonable care for his own welfare. Now let me just say this about that: contributory negligence is a failure to take reasonable care for one's own welfare or safety, but it must be what is reasonable in all of the circumstances then existing; and so you have to look at all the circumstances." (Black 1172F-N) "The next question you will be asked is "What is the amount of damages?" To that you will respond with the lump sum damages that you have assessed in this case. We haven't finished yet. There are two more questions. The next question will be "Was the plaintiff guilty of contributory negligence?" I've already explained that to you. If you answer that yes, you will be then asked "By what percentage or fraction do you consider it just and equitable, having regard to the plaintiff's share in the responsibility for the damage, that the amount of damages ought to be reduced?" Now, what you then do is if you are satisfied there was contributory negligence on the part of the plaintiff, you then nominate a fraction or a percentage that you think is just and equitable that the damages to the plaintiff should be reduced, having regard to the plaintiff's share in the responsibility of the damages." (Black 1181G-R) 23 The above makes no express reference to the 1965 Act, and in particular s10(1). The most it could be said was that the trial judge directed apportionment be considered and used the expression "just and equitable" in relation to apportionment of damages which is to be found in s10(1) of that Act, quoted below: "10(1) Where any person suffers damages as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage …" 24 This summing up refers to contributory negligence in the conventional common law (or statutory) terms of failure by the appellant to take reasonable care for his own welfare, that is to say failure on his part to protect his person against damage. Contributory negligence is put only in relation to damages, not as whether contributory negligence contributed to the accident itself. That last is wholly understandable. It was never in dispute that the Commonwealth was responsible for the collision, or the accident as such; its negligence was not disputed. Contribution to the accident and contribution to the damage are both categories of contributory negligence at common law as is explained in Astley v Austrust Limited (1999) 197 CLR 1 at 11 [21], discussed later. 25 No ruling was made at that time as to whether contributory negligence under the 1965 Act applied or at common law. This is because one day previously (Wednesday 23 March 2005) an exchange had occurred between counsel and the trial judge. It led to the agreed result that consideration of the legal effect of a jury finding of contributory negligence would be deferred until after the jury had deliberated and returned a verdict. This strategy had been adopted in order to allow the jury to undertake its deliberations prior to Good Friday, which fell on 25 March 2005. 26 The trial judge sets out the relevant parts of the exchange in his post-verdict judgment of 29 March 2005 (Red 99E-101I): "So that the jury could retire to consider its verdict last Thursday, that is the day before Good Friday, the questions of contributory negligence and the legal effects of a finding of contributory negligence were left for argument and determination until after the verdict had been delivered. At page 1074 of the transcript [Black 1074] I am recorded as saying, "One thing I am waiting to hear, and I don't want to hear you now, is how you are putting the contributory negligence case." Mr Jones, on behalf of the defendant said, "A similar thing occurred in McLean v the Commonwealth, where the issue was not alcohol, principally, but smoking, and the Court of Appeal specifically held it is a matter that should have gone to the jury in terms of the contributory negligence." At page 1075 [Black 1075] Mr Melick on behalf of the plaintiff pointed out, "There is a problem with contributory negligence, but it probably has to be left. One has to bear in mind, of course, the evidence in relation to alcohol is that it is used for self medication, whereas cigarettes weren't. It was not a question of self medication in McLean." At page 1075 I noted, "Incidentally, if the jury were to find contributory negligence, what do you say is the consequence of that? There is a pro rata - that they assess an amount by which it should be reduced or it is a complete defence in view of the fact that the 1995 [sic] Law Reform (Miscellaneous Provisions) Act came into force on 1 January 1966." I also said, "I am going to leave it to the jury and then we can argue. If they find contributory negligence I will get them to assess a proportion and then we will argue it afterwards, what the legal effect of that is. Let's not worry about it now," Mr Jones, Senior Counsel for the defendant, said, "We are happy enough with that course, they are all that we have at this stage." … In the absence of the jury on the second day of the summing-up Mr Melick said, "Your Honour, there are two very brief matters. The Law Reform (Miscellaneous Provisions) Act was amended after the decision of McLean and the provisions in relation to contributory negligence are slightly different. At first blush it may have an effect. I am not sure, and I submit that the appropriate thing to do is not to change it in relation to the charge with the jury, and that is a matter we can raise with your Honour later when the jury has returned its verdict." I said, "I think it is the most time effective course to take, everybody's rights are reserved." As I mentioned earlier, the jury did return a verdict which included a finding of contributory negligence and an apportionment of 50 per cent." 27 In that judgment of 29 March 2005, the trial judge then set out to deal more definitively with the deferred legal issues (Red, 101J-107J). The first question his Honour set out to determine was the applicability and scope of the provisions of the 1965 Act, particularly s10(1), to this case. Having considered the decision of the Court of Appeal in McLean and having considered himself bound by that decision (Red, 105Q-S), the trial judge set out to summarise and follow the principles said to arise from McLean (Red, 105D-P): "1 Acts of negligence on the part of the plaintiff subsequent to the negligent acts of the defendant sued upon and which merely aggravate or increase his injuries and losses can constitute contributory negligence within the meaning of the Law Reform (Miscellaneous Provisions) Act 1965. 2 The provisions of that Act apply even though the negligence [sic] acts and/or omissions giving rise to the event which caused the plaintiff's injuries occurred before 1 January 1966. 3 The effects of a finding by the jury of contributory negligence and the apportionment of damages are those prescribed in the Law Reform (Miscellaneous Provisions Act) [sic] 1965 and not the law as it stood as at 10 February 1964." 28 The trial judge in reliance on McLean thus concluded that the 1965 Act had retrospective effect to the events of 10 February 1964 so far as contributory negligence was concerned, with the consequence that damages were to be apportioned on that basis. 29 On the basis of that conclusion, the trial judge considered next certain submissions made by the plaintiff (appellant) that the common law of contributory negligence did not extend to "the negligence of the plaintiff occurring after the alleged negligence of the defendant and which is claimed merely to increase the damages flowing from that negligence of the defendant" (Red, 105W-106C). The trial judge appeared to consider that the binding nature of the decision in McLean took care of such questions. 30 The trial judge did, however, provide an indication as to how the proceedings would have been viewed had his Honour not considered McLean binding upon him. The trial judge appeared by his analysis (at Red, 106L-107J) to consider that the common law would then have applied to the proceedings, rather than the provisions of s10(1) of the 1965 Act. His Honour considered that, prior to the 1965 Act, the common law regarded as contributory negligence, "a negligent act or omission of the plaintiff which was proximate to the negligent act or omission of the defendant and which contributed to the event or events which caused the plaintiff's damage. It would not have extended to subsequent acts or omissions of the plaintiff which unreasonably and unforeseeably increased the plaintiff's injuries and losses" (Red, 106N-S). In that event, the trial judge would not have directed a jury to consider contributory negligence, rather the jury "would have been directed that the plaintiff was under a duty to mitigate his damages" (Red, 107F-G). This direction, the trial judge considered, could well have produced the same result from the jury (Red, 107G-I). 31 I observe three things at this point. First, while it is true that contributory negligence in relation to the accident would need to be proximate to it, if it was to have any relevant causal effect, contributory negligence in relation to the damage would be expected to be proximate rather to the relevant item of damage. (I put to one side damage having long latency such as mesothelioma where specific considerations apply.) 32 Second, this shows that the trial judge did not see himself as having given any direction or summing up concerning mitigation as distinct from contributory negligence. Nonetheless like the person in Molière's play, "Le Bourgeois Gentilhomme" who spoke prose without knowing it, to the extent mitigation is a subset of the wider category of contributory negligence (see [97]-[98]) the same directions will be appropriate. 33 Third, by referring to acts or omissions of the plaintiff, post-collision, which "unreasonably and unforeseeably increased the plaintiff's injuries and losses" his Honour was thereby correctly and conventionally ruling these out as incapable in damage terms to be sheeted home to the defendant being classically contributory negligence on the part of the plaintiff going to damage, not the accident. In doing so, his Honour was drawing on the touchstone of reasonableness, common to both mitigation and contributory negligence whether at common law or statute.

The appellant's challenge 34 It is principally with the above sequence of directions, and determinations made by the trial judge that the appellant takes issue on appeal. The appellant submits that: (a) the trial judge wrongly allowed the defence of contributory negligence to be put to the jury; (b) the 1965 Act was not applicable to the earlier events; (c) the trial judge should have ruled that the jury's finding of contributory negligence was insupportable in law and should be disregarded; and (d) mitigation, though pleaded, was never argued and so could not be taken into account. 35 The appeal was originally undertaken on eight separate grounds pursuant to a Notice of Appeal filed on 8 August 2005. By an Amended Notice of Appeal, filed without objection at the appeal hearing of 14 February 2007 (appeal transcript T3.33-37, T30.51), four of those grounds were removed from consideration and a further ground amended in certain respects. The Cross-Appeal initially pursued by the respondent had been abandoned by the time of the appeal hearing (see appeal transcript T20.38-43, T42.39-40, 51). The appeal is thus concerned with the following matters (as under the Amended Notice of Appeal): "5. His Honour erred by directing the jury that they could find contributory negligence on the part of the appellant when such a defence was not pleaded at any time by the respondent. 6. His Honour erred by directing the jury that they could find contributory negligence on the part of the appellant despite the fact that his actions in no way contributed to damage or injury of the plaintiff as pleaded. 7. His Honour erred by failing to rule that the jury's finding of contributory negligence was not sustainable in law and should be disregarded. … 10. The appellant seeks leave to reargue the principle in McLean v Commonwealth 41 NSWLR 239 re contributory negligence post the tort." 36 The orders sought by the appellant on appeal are that the appeal be allowed, that the contributory negligence "discount" of 50% to the judgment sum awarded by the jury be set aside, and costs. In the alternative, the appellant seeks a new trial.

The earlier conduct of the trial 37 In what follows, I deal so far as relevant with the earlier conduct of the trial before the earlier quoted summing up and how the parties in submission dealt with the issue of contributory negligence and related matters. As the record shows, the case was conducted below by both sides on the basis that contributory negligence from excessive alcohol consumption bore on the claim for damages. Much of the debate was on causality; did the drinking result from the accident or independently of it from the appellant's own positive choice. 38 It was brought to the trial judge's attention on Monday, 21 March 2005 (day 15 of the trial) by Mr Jones (counsel below for the respondent) that there was "an issue about contributory negligence … pleaded specifically in relation to the consumption of alcohol", and concerning which the trial judge would need to direct the jury (Black, 993H-I). The trial judge conceded at that time that he had overlooked that point completely and that it would be necessary to explain those matters to the jury (Black, 993J). 39 On Tuesday, 22 March 2005, the manner in which the contributory negligence argument was to be put by the respondent had not been specified (Black, 1074K-L): "[HIS HONOUR:] One thing I am waiting to hear - and I don't want to hear you now - is how you are putting the contributory negligence case. I am sure Mr Coleman [also counsel below for the respondent] will enlighten me in due course." 40 Mr Jones informed the trial judge once again that it would be put specifically in relation to the appellant's consumption of alcohol, drawing the following response from His Honour (Black, 1074N-O): "It just seemed to me that if the alcohol is a consequence of the collision, it is a bit hard to see how it could be contributory negligence, and if it is not a consequence of the collision, then he gets no damages for it." 41 Reference was made at that time to the decision in McLean. The trial judge observed that, in accordance with that decision, the matter of contributory negligence by reason of the appellant's alcohol consumption was to be left to the jury (Black, 1074P-T). Shortly thereafter (Black, 1075W-1076D), the more specific issue was raised by the trial judge as to the correct legal regime to be applied to any question of contributory negligence. In particular, the issue was whether the provisions of the 1965 Act applied so as to enable an apportionment of liability by the jury, or whether instead the common law applied, with the trial judge suggesting that any successful argument of contributory negligence afforded the respondent a complete defence (at least in relation to those aspects of the appellant's claim relating to alcohol consumption). Mr Jones indicated this was something to which the respondent would have to turn its mind (Black, 1076E, I). In the event the trial judge determined the following course (Black, 1076J-K): "I am going to leave it to the jury, and then we can argue. If they find contributory negligence, I will get them to assess a proportion and then we will argue it afterwards, what the legal effect of that is. Let's not worry about it now." 42 Mr Melick (counsel below for Mr Ackland) made no comment at that time concerning that course of action. The trial judge later affirmed that he would be seeking guidance from counsel as to contributory negligence, having agreed that the matter should be left to the jury, but not having determined precisely how it should be left (Black, 1093C-I). 43 These passages are important. They demonstrate an awareness on all sides, prior to addresses by counsel to the jury and the summing up of the trial judge, that issues in relation to contributory negligence were up in the air, and that it lay to a large extent in counsel's hands to provide guidance to the trial judge as to how contributory negligence should properly be framed before the jury. 44 Later on 22 March 2005, Mr Coleman for the Commonwealth addressed the jury. The relevant part of his submissions (extracted below), was directed at that part of the appellant's conduct said to have been relevant to the contributory negligence defence. It was directed more towards questions of causation, to the effect that the collision did not lead to the drinking and obesity because the former at least was the result of deliberate and conscious decision (Black, 1098H-Q): "If, after all of that, you come to award the plaintiff some damages - and again, it is up to you as to how much and how you do it - the Commonwealth says that you have to take into regard the plaintiff's own conduct following the collision in what's called contributory negligence, and particularly in relation to his drinking, members of the jury. I took you briefly to the evidence that he drank because he enjoyed it. He enjoyed drinking more than he enjoyed giving it up. He knew, when he continued to drink, that it potentially had an adverse impact on his health. He didn't consider himself to be addicted to the alcohol. It smacks, I want to suggest to you, of someone who had deliberately and consciously chosen to undertake that course of conduct over the years, and it may be the same with his obesity. You will need to find, if you link the obesity to the collision, that it was because of the collision that he either drank too much and got fat or ate to [sic] much, or whatever. There may be other reasons. Without being unkind, there may be a family history of obesity and poor diet, and these are matters you might want to take into account. You saw his daughter as well." 45 Mr Melick (for Mr Ackland) sought to counter that submission as to causation in his own address to the jury. Significantly though, he did not seek to disturb the assumption that contributory negligence was available to be put to the jury, including in the form of the 1965 Act. He sought to accommodate that by attributing the drinking to Mr Ackland's distressing memories of the collision. He stated relevantly as follows (Black, 1111P-V): "In relation to contributory negligence. Ladies and gentlemen, I have a little bit of difficulty with that. The Commonwealth's position is that he contributes to his own problems at the moment because he had a choice whether to drink or not, but he continues to drink. Mr Ackland demonstrated some will power - he managed to stop smoking, but he can't stop drinking. He's not an alcoholic, in a general sense. He's not a person that has to get out of bed and start drinking straightaway … He's a person that drinks to forget his distressing memories. He's a person that drinks to get some peace of mind and to help him to get to sleep. Do you really think he has much choice as to whether he drinks or not?" 46 It was submitted by the appellant on appeal that these observations were properly to be characterised as causation-related (see appeal transcript T12.2-.3). Earlier, Mr Melick had already foreshadowed in submissions before the trial judge that the attitude of the appellant to the contributory negligence argument would be to argue, on the basis of the supporting evidence of a Professor McFarlane, that the appellant's alcohol consumption, as a form of self-medication in this case, did not involve the exercise of positive choice on the part of the appellant (Black, 1075C-H). 47 Such had been the manner in which counsel themselves had put the matter before the jury. It is significant to note that, at this point, all appeared to proceed on two (ultimately incorrect) assumptions, namely: (a) that contributory negligence had been pleaded; and (b) that the 1965 Act applied. 48 On Wednesday, 23 March 2005, the trial judge gave directions to the jury concerning contributory negligence. It is useful to quote the relevant parts in full in order to demonstrate the precise nature of their framing (Black, 1153H-1154O): "The plaintiff alleges that amongst the symptoms of the psychiatric illness he suffered was an associated alcohol abuse. In other words, he was so affected by the trauma of the collision that he, in effect, self-medicated and used alcohol as a means to enable him to get to sleep and to relieve him of the memories of what he had seen on that night of 10 February. It is a question of fact for you to decide whether you accept that, but the defendant says that, first of all, it was not a psychiatric illness caused or materially contributed to by the collision; it was, in fact, a self-induced condition caused by the plaintiff's own conduct, and by continuing to drink, when he ought to have been aware, or was in fact aware, that drinking alcohol to excess was not doing his health any good, he was failing to take reasonable care for his own safety. In other words, that he was guilty of contributory negligence . The onus of proving that the plaintiff was guilty of contributory negligence is upon the defendant; it is not on the plaintiff to negate it. Of course, the plaintiff's case, in a nutshell, is, "Yes, I was drinking a lot, I was drinking heavily, but that was to help me overcome the effects of the depression, the anxiety, the stress disorder which I suffered as a result of the collision." The defendant says, "Well, no, you were drinking in a way that you, with the exercise of reasonable care, ought to have known was harmful to you, therefore, you are guilty of contributory negligence. Now, if you do find that the plaintiff was guilty of contributory negligence, I will ask you to nominate, by way of a percentage or fraction, the extent to which you consider it just and equitable, having regard to the plaintiff's share in the responsibility for the damage, that the amount of damages ought to be reduced , but, of course, you do not get to contributory negligence unless you are satisfied on the balance of probabilities that the plaintiff suffered a psychiatric injury as a result of the collision between the two vessels." [emphasis added] 49 No objection was made to these directions. They were framed by reference to contributory negligence and quite possibly with the 1965 Act in mind (see the emphasised sections in the third extracted paragraph). But it does not follow that the directions were inappropriate for common law negligence. The appellant on appeal (appeal transcript T12.5-T14.9) argued that the emphasis was principally if not exclusively on causation. However, while causality was covered, reference was clearly being made to contributory negligence. This was in the common law sense of "failing to take reasonable care for his own safety", by reason of his excessive drinking. 50 Reference was made also to these comments by the trial judge in his judgment of 29 March 2005 concerning contributory negligence issues (Red, 98O-U, extracted earlier above): "The defendant alleges that the plaintiff's excessive consumption of alcohol and/or food since February 1964 to the present caused him to suffer further injuries which were not the consequence of the collision . It is further alleged that such conduct amounts to negligence on the part of plaintiff which has contributed to his damages." [emphasis added] 51 Again this is in relation to damages, not in relation to the accident per se. The trial judge did seek guidance from counsel in the absence of the jury as to foreseeability. Thus at Black, 1163V-1164D: "What I want to know is exactly what you [the Commonwealth] want me to put to the jury. That's what I am trying to write down. So I have "The Commonwealth accepts the psychiatric injury was a foreseeable result of the collision, but it does not accept that the alcohol abuse or the eating disorder was a reasonably foreseeable consequence of the collision"?" 52 Mr Coleman confirmed that had been his intended position (Black, 1164D-E). His Honour's eventual direction to the jury concerning foreseeability (as well as causation) (made next day on 24 March 2005) comprised the following (Black, 1170N-1174C). The excessive consumption of alcohol and eating disorder was put to be considered by the jury as "a symptom of psychiatric illness", in terms of contributory negligence ("an act or series of acts in which he failed to take reasonable care for his own welfare", or "welfare safety"). Again no reference is made to contributory negligence in relation to the accident itself. The direction continued in these terms: "Now, another matter I wanted to go to was the question of what I said to you, that the consequences of the accident have to be reasonably foreseeable; that is, the consequences quoted by the plaintiff. I put something to you yesterday which was pointed out to me was not quite correct, and I want to correct it. The Commonwealth accepts that psychiatric injury is a reasonably foreseeable result of the collision, but it does not accept that the alcohol abuse or the eating disorder was a reasonably foreseeable result of the collision. Now, let me just say something about that, and it brings us to this whole question of alcohol or substance abuse. Professor MacFarlane [sic] said in his evidence - page 539: "Having given relevant weight to the history I obtained from the documents that were placed before me, it was my view that he suffered from post-traumatic stress disorder, recurrent panic attacks with agoraphobia, recurrent major depressive disorder and alcohol abuse." Now, that is correct; that someone who abuses alcohol, of itself, with nothing else, is not a psychiatric injury. You'll notice there that the professor has given not just one but a number of psychiatric illnesses which he says the plaintiff suffers; post-traumatic stress disorder, recurrent panic attacks with agoraphobia, recurrent major depressive disorder and alcohol abuse. Now, as I said, alcohol abuse, alone, is not a psychiatric disorder. But if you are satisfied on the balance of probabilities that the plaintiff suffered any one of those psychiatric illnesses that Professor McFarlane referred to, and that it was a consequence of the collision, then the plaintiff would be entitled to succeed and have you assess damages for that. Now let me just explain this, going into that question of alcohol abuse and eating disorder. What the plaintiff says, or his claim is, is that alcohol abuse, of itself, may not constitute a psychiatric illness, but in this particular case it was a symptom of a psychiatric illness; that it was a symptom which was suffered because the plaintiff used alcohol to dull or quash the memories of the incident and/or to allow him to get some extra sleep. And it's put to you - and Professor McFarlane gave evidence to the effect - that that type of use of alcohol to dull the effects of a nervous or a psychiatric problem is not uncommon and, indeed, is what has happened in this case - that it is a reasonably foreseeable symptom of a psychiatric illness. Now, the defendant also says - and I referred to this yesterday - that the fact that he drank so much and became an abuser of the substance, even if it was a symptom of a psychiatric illness, was nonetheless contributory negligence on his part; that is, it was an act or a series of acts or conduct in which he failed to take reasonable care for his own welfare. Now let me just say this about that: contributory negligence is a failure to take reasonable care for one's own welfare or safety, but it must be what is reasonable in all of the circumstances then existing; and so you have to look at all the circumstances. I suppose, in an ideal world, in an ideal situation, if a person realised he was unable to sleep, realised that he was having memories and flashbacks and nightmares of an incident, he or she would go to the doctor, be referred to a psychiatrist, and be prescribed treatment in the form of prescription drugs or other form of therapy - in an ideal situation. But we've got to look at the situation that existed back at that time, in the 1960s and '70s, of this particular plaintiff. He was there, well down in the totem pole of the hierarchy in the Navy. He was, at the time of the collision, 18. He didn't realise, he said, that what he was experiencing was a psychiatric problem. He did what his mates did - went out and drank to relieve the symptoms. That's his case. So, it's put to you that in the circumstances then existing, his drinking or excessive eating was not a failure to take reasonable care on his part in the circumstances in which he found himself. You see, it may well be that he's told us, and he told other people, that he drank because of peer pressure. That's one of the possible reasons. Another possible reason is that he drank because he liked the effects of it, or liked drinking. But what's put to you on behalf of the plaintiff is that may be some of the reasons, but the material contributing factor was the psychiatric illness which he suffered which caused him to like the affects [sic] of the alcohol on him, or led him to take alcohol, and which caused him to succumb to peer pressure; that being a materially contributing cause of his consumption of alcohol, he says, was the fact that he suffered from a psychiatric illness which, in the circumstances then existing, he didn't appreciate as an illness, and so he used what everybody used, namely alcohol to dull. Now that's what he says, and that question of whether you are satisfied or whether the defendant has satisfied you in all the circumstances that his conduct in drinking to excess was contributory negligence, was a failure to take reasonable care on his part. That's something you will have to determine ." [emphasis added] 53 The trial judge and Mr Melick had engaged shortly before in the following exchange in the absence of the jury, which serves to highlight most clearly the attitude adopted to the legal questions regarding contributory negligence (Black, 1166K-O): "MELICK: Your Honour, there are two very brief matters. The Law Reform Miscellaneous Provisions Act [sic] was amended after the decision of McLean, and the provisions in relation to contributory negligence are slightly different. At first blush it may have an effect. I am not sure and I submit that the appropriate things to do is not to change anything in relation to the charge with the jury, and that's a matter that we can raise with the jury, and that's a matter that we can raise with your Honour later, when the jury has returned it's verdict. HIS HONOUR: I think that's the most time-effective course to take. Everybody's rights are reserved ." [emphasis added] 54 The appellant submitted on appeal (see appeal transcript T15.23-25) that these comments of the trial judge were indeed to be understood to mean that rights were reserved specifically in relation to the issue of contributory negligence, a reading that I consider justified. 55 After making various comments to the jury concerning medical evidence and the assessment of damages (Black, 1174ff), which are not relevant to the issues on this appeal, the trial judge came to explain the specific questions the jury would be asked to answer on the basis of its deliberations. These remarks were referred to by the trial judge in his earlier quoted judgment of 29 March 2005, and I quote them verbatim below (Black, 1180S-1181U): "Now, when you come back your foreperson will be asked to stand. He or she will be asked "Have you agreed upon your verdict?" The significance of that question is that your verdict has to be unanimous. The he or she will be asked "How do you find; for the plaintiff or for the defendant?" As I mentioned to you earlier, you find for the defendant only if the plaintiff has failed to satisfy you, on the balance of probabilities, that the collision caused or materially contributed to a psychiatric injury which he suffered. If you find for the defendant, there'll be no further questions. The next question you will be asked is "What is the amount of damages?" To that you will respond with the lump sum damages that you have assessed in this case. We haven't finished yet. There are two more questions. The next question will be "Was the plaintiff guilty of contributory negligence?" I've already explained that to you. If you answer that yes, you will be then asked " By what percentage or fraction do you consider it just and equitable, having regard to the plaintiff's share in the responsibility for the damage, that the amount of damages ought to be reduced ?" Now, what you then do is if you are satisfied there was contributory negligence on the part of the plaintiff, you then nominate a fraction or percentage that you think is just and equitable that the damages to the plaintiff should be reduced, having regard to the plaintiff's share in the responsibility of the damages. Your answer could then be, if you find contributory negligence, 5 per cent, 95 per cent, anything like that. Please don't take those figures as being what I tell you they should be. I'm just taking them out of the air." [emphasis added] 56 The jury retired, deliberated and then returned its verdict on liability and contributory negligence apportioning damages at 50%. It then came time for counsel and the trial judge to consider the deferred legal issues relating to contributory negligence. This they undertook at some length (see generally Black, 1192-1217), with challenges being made by counsel on either side concerning various disparate unresolved points. Key parts of the discussion are extracted below. 57 The trial judge commenced by stating a preliminary position that, on his Honour's reading, the decision in McLean was binding, such that the 1965 Act applied (Black, 1192I-J). In the ensuing discussion, concerned in substance largely with the correctness or otherwise of that position, it emerged that Mr Jones for the respondent, considered the position to be the opposite, namely that the common law applied. He tendered written submissions (Black, 1199H) on the issue of contributory negligence, paragraph 6 of which read relevantly: "6. … because the wrong here occurred in 1964, before the commencement of Part III of the Act, the old common law position applies and, subject to further legislative amendment, contributory negligence is a defence to the plaintiff's claim." 58 Later amendments to the 1965 Act under the Law Reform (Miscellaneous Provisions) Act 2000 (NSW) ("2000 Act") were considered by the respondent not to alter the position. By virtue of the operation of the savings and transitional provisions of the 2000 Act, it was submitted that at common law a complete defence for contributory negligence remained the correct formulation in the present case (see paragraphs 7-11). The following exchange between the trial judge and Mr Jones makes clear the position ultimately adopted by the defendant after the jury had delivered its verdict (Black, 1201M-1202U). It was that, at the relevant time, contributory negligence at common law applied and was a complete defence, submitting that the common law did not provide for apportionment. No distinction was drawn between contributory negligence in relation to the accident as compared to contributory negligence in relation to damage. "[JONES:] We know that the 1965 Act which commenced on 1 January 1966 does not apply because the collision occurred before the commencement, so we are back in the position whereby if there is a finding of contributory negligence, then there should be a verdict for the defendant because the 1965 legislation does not apply . HIS HONOUR: Well, the only thing against you is that the Court of Appeal has said to the contrary. JONES: I don't know if they have said the contrary. I understand what your Honour is saying. What they said, and this is at page 3978 [sic] of McLean, 41, NSWLR. We can hand up a copy if your Honour ignores the highlighting, but it is a photocopy of that decision. The relevant part is at page 398, your Honour. HIS HONOUR: Under the heading Contributory Negligence Available in Law. JONES: Mr Joseph argued, counsel for the plaintiff in the case, "That the proposed defence was misconceived… contributory negligence." This is the same argument that Mr Melick advanced before you today. HIS HONOUR: It did not mention anything about retrospective operation. It doesn't seem that he argued that the Act was not in force as at 1964. There is nothing in the judgment to indicate the Court even looked at that question . JONES: We say it matters not in any event because what your Honour has to consider is whether contributory negligence, that the consent of the plaintiff through his drinking contributed to his injury, was available. That does not depend on whether or not the 1965 legislation applied . Whether it applied. HIS HONOUR: It might well do the way that contributory negligence was considered to exist pre 1965 was different to what was looked at afterwards, pre 1965. It was negligence that contributed to the event giving rise to the cause of action, negligence which might subsequently, negligence that might aggravate an injury that was dealt with separately, not as contributory negligence, but as either a matter of failure to litigate or as breaking the chain of causation. JONES: We say looking at this decision, just dealing with that concept, when the Court of Appeal looked at it, true it is they looked at The Law Reform Miscellaneous Act 1965 [sic], in particular s10. That may be because their attention was not drawn to section 8, and I am not sure when the proceedings were actually filed. HIS HONOUR: Section 8 is no longer considered in 1965, in the Act, once they look at the general law as to whether these provisions can operate retrospectively. I have some difficulty about that. JONES: We say that the law to be applied is no different before the Act, that is the 1965 Act to after the Act . HIS HONOUR: The law of what ? JONES: The law in relation to the contributory negligence, with the exception of the effect . HIS HONOUR: You are saying that the definition of contributory negligence was the same before 1965 as afterwards . JONES: We say the principles . HIS HONOUR: Which principles? This is where all the confusion arises . JONES: We say the principles that if the actions of the plaintiff contributed to his damage it matters not whether that occurred, when one looks at the consideration of those principles in 1965 or 1966 ." [emphasis added] 59 The trial judge and Mr Jones continued to discuss the precise interrelation of McLean with the question of the differences, if any, in the basic principles of contributory negligence pre and post the 1965 Act. What emerged after the jury verdict, was thus a forensic decision by the respondent to argue for the complete common law defence based on contributory negligence as opposed to apportionment under the 1965 Act being available. 60 On Mr Jones' construction, the only difference between the two regimes was the effect of any finding of contributory negligence; otherwise the principles remained the same. He asserted that a finding by the jury of contributory negligence with apportionment under the 1965 Act had the legal result that the verdict of contributory negligence stood, but that its legal consequence was not apportionment but entire defeat of the plaintiff's claim, by reason of his common law contributory negligence found by the jury. 61 Objection was taken on appeal (see appeal transcript T21.34-48, T22.42-57) to the manner in which the respondent thereby appeared to have changed tack in its argument before and after the jury's deliberations. First the respondent acquiesced, it was said, in the trial judge's summation based on the 1965 Act, then sought to argue for the complete defence. By the time the jury had returned its verdict, it was submitted, it was simply too late to put the complete defence, it being the duty of counsel to put all the available arguments then, so available to be considered after the jury's deliberation. Mr Jones was submitted to have made a forensic decision, comprising a deliberate choice (though not made with misleading intention) to opt for the 1965 Act to be put to the jury by trial judge, rather than the complete defence (see appeal transcript T20.57-T21.10, T22.5-14, T23.1-8). 62 I do not agree. The short answer is that the legal issues regarding contributory negligence had been expressly deferred for consideration until after the jury's deliberation with "everybody's rights reserved". The defendant (as also the plaintiff) was entitled at trial to take the opportunity, after the jury's deliberation, to make submissions on the legal effect of the jury's verdict. 63 I turn now to the divergence said to exist between the pleaded defence and the way the matter was argued; that is as a pleaded defence based on failure to mitigate (and remoteness) but argued on the basis of contributory negligence. Mr Jones first raised the issue with the trial judge, asserting that the apparent pleading discrepancy was a matter of form only as contributory negligence and failure to mitigate were co-extensive in substance in this case (Black, 1205F-K): "Could I move on to make submissions in relation to, I should raise one thing to your Honour. It was raised to my attention over the weekend. If your Honour looks at the amended [sic], your Honour will recall that I raised earlier on in the proceedings the issue of contributory negligence. It went to the jury and was, subject to submissions by both the defendant and the plaintiff, to the jury. If your Honour looks at the amended defence, your Honour will see that the, indeed the contributory negligence is under the heading of "Failure to Mitigate". Nevertheless, we say that it is in reality a pleading of contributory negligence ." [emphasis added] 64 Mr Melick in response took the trial judge to the relevant parts of the respondent's amended defence, reiterating his own prior ignorance of the pleading problem (having not been in possession of the amended defence). He submitted as I would infer (though the argument is not expressed with great clarity), that the finding of the jury in relation to apportioned damages could not, in the appellant's view, stand on contributory negligence, it not having been pleaded, nor on mitigation, as what the jury did was apportion the damages based on the statute, whereas mitigation does not involve apportionment. I quote from the transcript (at Black, 1211L-1212E): "[MELICK:] In relation to the plea contributory negligence, the submission is this. Mr Jones indicated in reply to an amended defence to, because contributory negligence was now pleaded my instructor indicated to me that was the case. The defence doesn't talk about contributory negligence. It talks about failure to mitigate. HIS HONOUR: It just referred to contributory negligence, the defence, does it not? MELICK: Now [sic] it doesn't. I thought it did. Those were my instructions. I recall my instructor… HIS HONOUR: Well, the defence that I have, which is dated 29 October 2004, that was the date, 20 October, it is the 29th, that is in paragraph 8, says that the defendant's losses were not caused or materially contributed by the deletion [scil collision] that the non-psychiatric injuries being substance abuse…obesity were too remote for proper recovery of damages…foreseeable." In paragraph 10, "If he suffered injury the plaintiff had a duty to mitigate his loss…but did not do so." The word contributory negligence is not mentioned in the copy on file . MELICK: That what [sic] failure to mitigate refers to is the very matter spoken about in McLean. That is, the defendant is entitled have [sic] his damage reduced because of the plaintiff's failure to mitigate, not because he contributed to the injury which he suffered at the time of the collision. It could only go as to the reduction because of the plaintiff's failure to mitigate. HIS HONOUR: So what do you say, you say that there is no defence? MELICK: Contributory negligence per se. You could not argue the jury was entitled to reduce the damages because the plaintiffs failed to mitigate ." [emphasis added] 65 Mr Coleman in reply pressed the acquiescence of the appellant in the case as argued, rather than pleaded (Black, 1216H-I): "In terms of the defence … That defence referred to failure to mitigate. The case was run with the acquiescence of the plaintiff that it was a contributory negligence case." 66 Shortly after this point in argument, the trial judge delivered his judgment of 29 March 2005 in relation to contributory negligence; the relevant parts of this I have earlier outlined.

Summing Up 67 This review of the proceedings below makes clear a number of points: (a) There existed in relation to contributory negligence a divergence between: (i) the respondent's pleaded defence below based on failure to mitigate, remoteness and causation, but making no mention of contributory negligence either at common law or statute; and (ii) the arguments and addresses by counsel followed by the directions and summing up by the trial judge to the jury; The latter were framed solely in terms of contributory negligence, though necessarily dealing with the related causation issues; (b) This divergence between pleading and argument had arisen unbeknown to counsel on both sides and to the trial judge, all of whom proceeded on the assumption, till after the jury verdict, that contributory negligence had been pleaded; (c) There was awareness on all sides that the applicable regime in relation to contributory negligence was a matter of uncertainty, by reason of the effect of the decision in McLean and the fact that the 1965 Act post-dated the collision; (d) A decision was taken by the trial judge, acquiesced in by counsel on both sides, to allow the question of contributory negligence to go to the jury in the way I have set out, with discussion to be undertaken after the jury had returned its verdict concerning the legal effect of whatever decision was reached; (e) Subsequent to the verdict and before the judgment of 29 March 2005, the positions of the respective counsel were put. Mr Jones and Mr Coleman for the Commonwealth argued for the applicability of the common law contributory negligence defence, not considering McLean to bind the Court as to the 1965 Act. The effect of this argument was said to be that contributory negligence was a complete defence to the appellant's claim on the basis of the jury's findings, with its apportionment finding being able to be disregarded, as the 1965 Act did not apply retrospectively to these events. Mr Melick for Mr Ackland, on the other hand, argued that contributory negligence was unavailable as it had not been pleaded but only mitigation, and even if available could not ground apportionment of damages; accordingly the jury's finding could not stand as it was.

DISPOSITION 68 The resolution of this appeal depends on the answers to these three questions dealt with below. Question 1 : Having regard to the way the case was conducted by both sides, did the trial miscarry because the jury were directed to consider contributory negligence when it had not been expressly or in terms pleaded below ? Question 2: Was the trial judge in error in concluding that McLean grounded the legal availability of the statutory defence of contributory negligence under the 1965 Act? Question 3: Is the jury's verdict to be treated as a final and not provisional verdict and binding on the parties with its assessment of the appellant's contributory negligence at 50% taking into account the directions to the jury and notwithstanding that the common law doctrine of contributory negligence was applicable in this case and not the provisions of the 1965 Act? 69 I start with:

Question 1 : Having regard to the way the case was conducted by both sides, did the trial miscarry because the jury were directed to consider contributory negligence when it had not been expressly or in terms pleaded below ? 70 The appellant submits on appeal that the respondent, by its conduct below in relation to contributory negligence, caused the trial to miscarry. On the basis of the objections raised by Mr Melick (at Black 1075C-H, 1166K-N), the trial judge is said to have determined "that any argument on whether contributory negligence applied or not should be heard after the jury had been discharged" (Orange, 21R). 71 The relevant part of the appellant's written submissions puts the argument thus (Orange 23E-O): "29. This [Black, 1211M-1212E, quoted at [sic 46] above] was an objection by the plaintiff's counsel to the defendant relying on a plea of contributory negligence when no such defence had been pleaded. In light of that objection his Honour should have ignored the jury's verdict as to contributory negligence and not applied the 50% discount. 30. Contributory negligence was never pleaded nor particularised by the defendant … No application was made to amend the defence to plead contributory negligence. If such an application had been made it would have been objected to. Further any proposed defence of contributory negligence based on conduct of the plaintiff after the collision would have been struck out as futile. 31. The defendant by maintaining its reliance on a defence of contributory negligence, a defence which had never been pleaded has caused the miscarriage of the first trial." 72 The respondent's answer to these submissions (Orange, 29-31) was that, regardless of the state of the pleadings, the issue of contributory fault (whether phrased as mitigation or contributory negligence) was clearly in issue in the proceedings below. Fatal to the appellant's argument in my judgment was the fact that the respondent's Counsel Mr Melick ran the appellant's case below on the basis that contributory negligence specifically was in issue in the way I have earlier set out. Mr Melick did not object to the suggestion by the trial judge that contributory negligence should be put to the jury in the way it was. It was only the legal effect of any finding by the jury of contributory negligence that was to be determined at a later point. Mr Melick himself had maintained that contributory negligence should be left to the jury, and addressed the jury on that issue. He at no time suggested that contributory negligence ought not to have been left to the jury on the basis that the respondent's case below had not been conducted on that basis. 73 Mr Melick's later objection to the respondent's reliance on the contributory negligence defence was that it was not available as a matter of law, and was not available on the facts; the pleading point was only taken at the heel of the hunt. I would agree with the respondent's submission that the absence of any express pleading as to contributory negligence cannot be taken to have resulted in any prejudice to the appellant during the proceedings below, given the way the proceedings were thereafter conducted. 74 The appellant relied during the appeal hearing on the principle that parties are bound by their conduct of proceedings. This was to argue that it was too late, after the jury had returned its verdict, for Mr Jones for the respondent to put the case of common law contributory negligence, and then to argue that that defence was co-extensive with an argument of failure to mitigate. The appellant pointed to the responsibilities of the respondent, as a model litigant, to have ensured that the proceedings had been conducted on their proper footing, that is, in accordance with the pleadings. 75 Yet as the respondent pointed out in the appeal hearing, rightly in my view, the fact of parties' being bound by counsel's conduct of proceedings cuts both ways (appeal transcript T39.23-27). That principle was stated succinctly by the High Court in University of Wollongong v Metwally (No. 2) (1985) 59 ALJR 481 at 483: "It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence , he failed to put during the hearing when he had an opportunity to do so." [emphasis added] 76 The respondent thus correctly submitted that the appellant too was bound by its conduct of the case below, specifically by Mr Melick's acquiescence in putting the contributory negligence defence. It is not sufficient for the appellant to rely on the responsibilities of the respondent as a model litigant to escape the responsibility of its own counsel to ensure that there is proper awareness of something as basic as the pleadings in the case. As was pointed out and accepted on a number of occasions during the appeal hearing, all persons involved - counsel on both sides and the trial judge - operated under a simple misapprehension as to the state of the pleadings until after the jury delivered its verdict. There was no suggestion pressed on appeal, nor could there have been, that either the trial judge or Mr Melick had been deliberately misled by Mr Jones or Mr Coleman. 77 Without in any way criticising counsel involved, it is clear that Mr Melick would have had the opportunity prior to the jury retiring to deal with any issue on the pleadings, had he been aware of the contents of the amended defence and any divergence between it and the respondent's arguments. Inadvertence is no answer as Metwally (supra) makes clear. The real miscarriage of justice at this stage would be to permit the jury's verdict to be altered in such a way that it no longer reflected the manner in which the case was run before it (Orange, 31M-O).

Conclusion 78 The answer to question 1 is "no". 79 Question 2: Was the trial judge in error in concluding that McLean grounded the legal availability of the statutory defence of contributory negligence under the 1965 Act? 80 The answer to this question is not in dispute. It is common ground that the trial judge was in error in so concluding. Nonetheless it is relevant to the remaining questions to explain why. 81 From the passages quoted earlier, the trial judge clearly considered that he was bound by the decision of this Court in McLean in relation to the applicability of the 1965 Act to the present case. I repeat the trial judge's summation of the relevant principles, as his Honour derived them from McLean (Red, 105D-P): "1 Acts of negligence on the part of the plaintiff subsequent to the negligent acts of the defendant sued upon and which merely aggravate or increase his injuries and losses can constitute contributory negligence within the meaning of the Law Reform (Miscellaneous Provisions) Act 1965. 2 The provisions of that Act apply even though the negligence [sic] acts and/or omissions giving rise to the event which caused the plaintiff's injuries occurred before 1 January 1966. 3 The effects of a finding by the jury of contributory negligence and the apportionment of damages are those prescribed in the Law Reform (Miscellaneous Provisions Act) [sic] 1965 and not the law as it stood as at 10 February 1964." 82 The ultimate determination of the trial judge on the basis of McLean, that the 1965 Act applied in this case, was incorrect. The common law doctrine of contributory negligence applied, not the provisions of the 1965 Act. 83 The reason derives from s58 of Pt 3 of the 1965 Act which provided that: "This Part shall not apply to any case in which the acts or omissions giving rise to the claim occurred before the commencement of this Part." [emphasis added] 84 Section 58 of Part 3 of the 1965 Act was not however drawn to the attention of the Court which decided McLean. 85 So much was submitted by Mr Jones for the respondent during argument before the trial judge after the jury had returned its verdict; clearly the events giving rise to the proceedings in this case had occurred prior to the commencement of the 1965 Act (see earlier). 86 The trial judge recognised that the issue of retrospective operation had not been considered by, indeed appeared not to have been before, the Court of Appeal in McLean (Black, 1201V-W). 87 When s10(1) of the 1965 Act was considered in McLean, with specific regard to the scope of the defence of contributory negligence under the 1965 Act, its applicability was simply assumed. The McLean judgments were entirely silent on there being any issue on that score. That being the case, some inference (one way or the other) needed to be drawn by the trial judge as to whether that silence left open the question of the applicability of the 1965 Act, or whether on the other hand it merely indicated that the correct assumption was that the 1965 Act applied retrospectively. 88 The trial judge drew the latter inference, as demonstrated by point 2 under his Honour's summary of McLean. That summary is, perhaps revealingly, phrased as an outline of the "effects" (Red, 104X) of that decision. On the basis, therefore, of what he considered to be the "effects" of the decision, in particular given its status as a determination of a superior court, the trial judge followed McLean and upheld his directions to the jury on the basis of s10(1) of the 1965 Act. 89 Notwithstanding the understandable nature of the trial judge's decision in those circumstances, it is open to this Court to conclude, and I do conclude, that the opposite is the correct position. Further, the appellant pointed out during the appeal hearing (see appeal transcript T24.17-22) that it would have been open to the trial judge not to rely on McLean, on the basis that any observations to the contrary were made per incuriam, given that the court's attention was not directed to s8 of the 1965 Act. 90 The result of this is plain, namely that, notwithstanding the decision in McLean, it was available to the trial judge to draw the (correct) conclusion that the common law, and not the 1965 Act, was applicable in the present case. The trial judge would then have been required to consider more closely the consequences of that conclusion in relation to his earlier directions to the jury, as compared to what his Honour observed in his ex tempore judgment of 29 March 2005 at 106-7. It falls to this court to do so in considering how closely the common law of contributory negligence accords with the effect of the 1965 Act, in answering the final question below. 91 Question 3: Is the jury's verdict to be treated as a final and not provisional verdict and binding on the parties with its assessment of the appellant's contributory negligence at 50% taking into account the directions to the jury and notwithstanding that the common law doctrine of contributory negligence was applicable in this case and not the provisions of the 1965 Act? 92 One can put to one side any suggestion that the verdict of the jury could properly be described as "provisional", save in the limited sense that the parties agreed to defer consideration of its legal effect until after the verdict had been handed down. 93 In Astley v Austrust Limited (supra) at 11 [21], the majority (Gleeson CJ, McHugh, Gummow and Hayne JJ) drew a critical distinction concerning contributory negligence at common law. That distinction is between contributory negligence contributing to the accident, where proof of contributory negligence is a complete defence, and contributory negligence consisting in the failure of the plaintiff to protect his or her person or property against damage, where proof of contributory negligence relates only to that damage. 94 The critical passage in Astley is as follows: " Contributory negligence at common law [21] At common law, contributory negligence consisted in the failure of a plaintiff to take reasonable care for the protection of his or her person or property. Proof of contributory negligence defeated the plaintiff's cause of action in negligence. Although conduct amounting to contributory negligence may also constitute the breach of a duty which the plaintiff owes to the defendant, a plaintiff can be guilty of contributory negligence notwithstanding that he or she owes no duty to the defendant or any third person. A pedestrian, for example, owes no duty to a speeding driver to avoid being run down but is guilty of contributory negligence if he or she fails to take reasonable care to keep a proper lookout for speeding vehicles. Similarly, if a plaintiff fails to take care for its property, it may be guilty of contributory negligence although it owed no duty to the defendant in respect of the property. Thus, in Smith v Badenoch where a fire started by the defendant damaged an adjoining property, the Supreme Court of South Australia held that the plaintiff was guilty of contributory negligence because he had failed to call out the local fire service promptly. A person may also be guilty of contributory negligence even though the negligence of the plaintiff did not contribute to the accident which caused the damage. That is because contributory negligence is concerned with the failure of the plaintiff to protect his or her person or property against damage and not with whether the failure contributed to the accident ." [original italics] 95 Astley itself referred to and approved the South Australian decision in Smith v Badenoch [1970] SASR 9. That decision related to negligence by the plaintiff occurring after the immediate damage had been incurred (by reason of the incursion of a fire, lit by the defendant, onto the plaintiff's property at 11:45pm on the night in question). Damage continued as the incursion became steadily worse because no steps had been taken by the plaintiff to contact Emergency Fire Services until 7:30am the next day. Zelling J found there to be contributory negligence as was pleaded at common law (at 15): "I am … of opinion that the plaintiff was negligent in not seeking assistance at or immediately after 11.45 p.m. It is obvious from [the statement of a particular witness] that had the Emergency Fire Services been called at 11.45 p.m. or thereabouts they would have come and that they could have fought the fire effectively by night as well as by day. The plaintiff gives various reasons such as the difficulty of the terrain, the fact that the police had given him certain advice in previous cases, and that because the wind was dropping he had no real fear of the fire spreading. The third of these is I think probably his true reason, and it means to my mind that he decided to take a calculated risk of doing nothing before 7.30 the following morning. In doing so, in my opinion, he showed lack of proper care for the safety of his own property and he was guilty of contributory negligence . Had he summoned the Emergency Fire Services unit at near midnight the fire could have been confined to a very small area of the plaintiff's property." [emphasis added] 96 As an aside, albeit an important one, I would observe that the decision in Badenoch might equally have been reached by recourse to the doctrine of mitigation. This would have been in a context where the damage from the initial event, namely the fire, was continuing rather than had ceased. The latter typically would be the case where mitigation is in issue. Under mitigation the question becomes whether the plaintiff has, after the initial event, failed to act reasonably to mitigate ongoing damage. 97 This overlapping relationship between the two legal concepts is simply an illustration of the observations of Glanville Williams in his "Joint Torts and Contributory Negligence" (London: Stephens & Sons Limited, 1951). He begins by discussing the traditional perceived difference between the doctrines of contributory negligence and the mitigation of damage (at 282): "… two alternative distinctions may be suggested between contributory negligence and the duty to mitigate damages. First, the duty to mitigate damages may be said to arise only when the plaintiff's rights have been invaded. Before the wrong is committed the plaintiff's conduct is judged by the rules not of mitigation of damages but of contributory negligence. Secondly, and by way of qualification upon the first suggestion, the duty to mitigate damages may be said to arise not merely when the wrong is committed but when the wrong is committed and the plaintiff has notice of it. Before that, the law of contributory negligence applies." 98 Notwithstanding these traditional distinctions between the two concepts, based largely upon considerations of temporality, Glanville Williams concludes (at 282) that mitigation is "merely a species, a particular application, of the broad doctrine of contributory negligence". Those observations are to be borne in mind here, where much was made of the fact that separate concepts were respectively pleaded and argued below. Mitigation places its emphasis upon reasonableness as a decisive consideration whereas contributory negligence looks to both reasonableness and issues of causation. The divergence between pleading only mitigation (and remoteness) and then arguing on the basis of contributory negligence only, is not to be treated as of any great significance in terms of the conduct of the trial, more especially as no objection was taken to that course at trial.. 99 To return though to the issue at hand. The earlier authorities on common law contributory negligence dealt with contributory negligence bearing upon the accident itself, where it afforded a complete defence. The rigor of that rule was modified, as applicable to the accident itself, by what are sometimes referred to as the Alford qualifications, derived from Alford v Magee (1952) 85 CLR 437 where the plaintiff's role in causing the loss was minor and by the so-called "last opportunity rule". Post the 1965 Act, no longer is resort required to either for the purpose of alleviating the harshness of contributory negligence, as applicable to the accident itself, being at common law an absolute bar in that circumstance. 100 Astley however draws a clear distinction between contributory negligence as it bears upon the accident giving rise to liability and contributory negligence as it bears upon damage. The latter is in temporal terms a consequence of the accident and is capable of occurring not only contemporaneously with the accident but after it, as here. I do not consider authority directs an analogous all or nothing approach to damages as a whole, or precludes the kind of apportionment that here occurred. Indeed if the all or nothing approach did apply to damage, it could defeat the appellant's claim altogether. This is because there was no jury quantification of so much of the damage awarded as consisted of psychiatric injury or of the associated claim for alcohol abuse. Therefore on that premise it would follow that the common law of contributory negligence though applied to damages would operate as an absolute bar to the award of any damage at all. 101 In what follows by way of review of the authorities, I explain why I conclude otherwise. Essentially it is because, there being no common law decision to the contrary, it is open to conclude as I do that the common law on contributory negligence, when applied not to the accident but to damages, is capable of reducing damages overall to the extent contributory negligence is judged to have operated, doing so in much the same way as apportionment operated by statute under the 1965 Act. 102 That the 1965 Act mandated apportionment of damages does not mean that the common law needed to be altered to achieve that result, where dealing with the case of contributory negligence applied, not to the accident itself; but to damages. I consider that the common law, as understood in contemporary terms following Astley in 1999, should be taken to accommodate that result unaided, by statute. "The Calliope" [1970] P 172, explained in McLean at 398, strongly supports that conclusion. The effect of that decision was explained in McLean at 398: "The view that apportionment is available in cases such as the present is supported by Carlsholm (Owners) v Calliope (Owners), "The Calliope" [1970] P 172, where Brandon J held that if consequential damage was caused partly by the original casualty, and partly by the claimant's intervening negligence, the court can apportion on that basis …"

Brandon J in The Calliope was influenced no doubt by maritime law's long recognition of apportionment ("Prosser and Keeton on Torts" 5th ed (West Publishing Company, 1988) at 471), yet he drew support for his conclusion from statute as well (at 182): "This approach to the problem seems to me to be supported by the terms of the statutory provisions governing the apportionment of liability in maritime and other cases." 103 The influence of the UK apportionment legislation in the reformation of the common law approach to causation in contributory negligence was recognised by Patrick Atiyah ("Common Law and Statute Law" (1985) 48 MLR 1 at 22-23). As he puts it, there is the kind of case: "where the courts have shown willingness to regard legislative reversal of common law doctrines as justifying further re-adjustment of the common law, beyond the scope of the enactment itself. " 104 He illustrates that approach by reference to Denning LJ's decision as to causation in the contributory negligence context in Davies v Swan Motors Co [1949] 2 KB 291; [1949] 1 All ER 629. I would argue that a similar statutory influence in relation to apportionment would be both available and warranted. 105 While it was earlier held in Alford v Magee (supra at 460-1), a case that recognised the primacy, for purposes of causation, of damage as opposed to accident (see the preferred formulation at 451), that, "Apart from the new statutes, it is not, of course, legitimate to enter upon any comparison [between the negligence of the plaintiff and that of the defendant] in point of degree" [emphasis added]

the subsequent developments in the common law approach to responsibility for damage and apportionment of damages, as disclosed in The Calliope , leave it open in my opinion to take now the approach I do. 106 Thus the fact that McLean itself drew on the common law of contributory negligence (as interpreted in The Calliope) to support apportionment being available in the statutory context of the 1965 Act does not detract from both cases (as expositions of the common law supporting statutory apportionment) standing as authority for apportionment being available at common law where contributory negligence is not being applied to the accident but to consequential damage. Indeed a contemporary common law of contributory negligence would not be expected, post Astley, to extend the draconian "all or nothing" approach applicable to the accident (widely criticised as one of the common law's "outstanding failures" as for example J Fleming in the 1962 edition of "The Law of Torts" at 214) to the separate and discrete consideration of contributory negligence applied to damage. 107 What statute did need to do was alleviate the harshness of contributory negligence as applied to the accident itself. The statute obviated recourse to the contrivance of devices like the last opportunity rule. 108 An example of earlier authority focussing upon contributory negligence as a cause of the accident itself is the judgment of Lord Penzance in Radley v London and North Western Railway Co (1876) 1 AC 754 at 759. It restated and affirmed the prevailing authority from earlier cases of Davies v Mann (1842) 152 ER 588 and Tuff v Warman (1858) 141 ER 231. The relevant passage in Radley is as follows: "The first proposition is a general one, to this effect, that the Plaintiff in an action for negligence cannot succeed if it is found by the jury that he has himself been guilty of any negligence or want of ordinary care which contributed to the cause of the accident . But there is another proposition equally well established, and it is a qualification upon the first, namely, that though the Plaintiff may have been guilty of negligence, and although that negligence may, in fact, have contributed to the accident, yet if the Defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the Plaintiff's negligence will not excuse him." [emphasis added] 109 There is a further line of authority, concerned with antecedent acts or omissions by the plaintiff in permitting himself to be driven by a person who is incompetent or intoxicated, or in failing to wear a seatbelt, or in the case of motorcyclists failing to wear a crash helmet. These in temporal terms all involve actions or omissions which predate the actual injury itself and may pertain either to the accident or to aggravation of injury from it, the latter being closer to this case. These were cases, not so much of direct causal contribution to the accident itself, but rather instances of allowing or helping a situation to arise in which injuries are rendered more foreseeable or likely and, relevantly, their injurious effects more serious in the case of failure to wear seatbelt or crash-helmet; compare Trindade, Cane and Lunney "The Law of Torts in Australia" (2007) 4th ed at 685 (and earlier on the Alford qualifications at 682). 110 These cases are not inconsistent with the distinction drawn in Astley between contributory negligence in relation to the accident and contributory negligence in relation to damage to the person following the accident. This earlier line of authority includes Insurance Commissioner v Joyce (1948) 77 CLR 39 and Joslyn v Berryman (2003) 214 CLR 552. In Joyce (supra) Dixon J, while dissenting in the ultimate result, stated the issue in these terms: "Contributory negligence certainly includes failure to adopt reasonable precautions or a reasonable course of action to avoid the consequences or risks which the defendant's negligence sets up" (at 56). 111 In Joslyn v Berryman (supra), McHugh J, referring to the British authorities of Nance v British Columbia Electric Railway Co Ltd [1951] AC 601, Jones v Livox Quarries Ltd [1952] 2 QB 608 and Froom v Butcher [1976] QB 286, observed: "At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which the plaintiff was exposed." (at 558) 112 Though decided on the UK statutory provisions equivalent to s10(1) of the 1965 Act, the observations of Lord Denning in Froom v Butcher (supra) have direct relevance. Lord Denning emphasised the primacy that should be accorded by contributory negligence to an examination of the cause of the damage, rather than the cause of the accident itself: "The question is not what was the cause of the accident. It is rather what was the cause of the damage. In most accidents on the road the bad driving, which causes the accident, also causes the ensuing damage. But in seat belt cases the cause of the accident is one thing. The cause of the damage is another. The accident is caused by the bad driving. The damage is caused in part by the bad driving of the defendant, and in part by the failure of the plaintiff to wear a seat belt. If the plaintiff was to blame in not wearing a seat belt, the damage is in part the result of his own fault. He must bear some share in the responsibility for the damage: and his damages fall to be reduced to such extent as the court thinks just and equitable." (at 292) 113 The relationship between the doctrine of remoteness and mitigation was discussed by the High Court in Fazlic v Milingimbi Community Inc (1982) 150 CLR 345. The circumstances were that a plaintiff worker, unreasonably on the defendant's case, refused medical treatment. The High Court concluded that the applicable defence in those circumstances was mitigation rather than remoteness, the latter being expressed in terms of causality, concluding as follows (at 353-4): "To regard the rule [as to unreasonable refusal of treatment] as founded upon causality is likely to distract attention from the true issue, the reasonableness of the refusal viewed in the light of the worker's knowledge, and at the same time to encourage investigation of what, at the trial, proves to be the best medical assessment of the reasonableness of the operation viewed in a quite objective sense. Yet one and the same ultimate physical state of disability can scarcely be said to have been "caused" by the initial injury if the refusing worker was at the time unaware of certain facts concerning a recommended treatment (and hence was not unreasonable in his refusal) but to lack the necessary causal relationship when his refusal was made with knowledge which should have led to his acceptance of that treatment. The doctrine of mitigation appears to us to provide a more rational basis for the rule … If the rule relating to unreasonable refusal is regarded as giving effect to the obligation to take reasonable steps to mitigate damage problems which otherwise arise may disappear, giving the rule a more certain operation." [emphasis added] 114 The present case is one where the contributory negligence alleged was concerned only with alleged failure of the plaintiff to protect his person against damage following the accident by reason of his excessive drinking and binge eating. The appellant's further statement of claim did not particularise this damage, beyond the generality of "pain, suffering, shock and loss of enjoyment of life" alongside some broad particulars relating to "special damage and loss of earning capacity". However further particulars of damage were contained in three consecutive sets of particulars and further particulars pursuant to Pt 33 r8A of the Supreme Court Rules to which I have earlier made reference. The first was dated 19 May 2004, the second was dated 11 August 2004 (the particulars pleaded to in the respondent's amended defence of 29 October 2004) and the third post-dating that defence, dated 28 February 2004. Each set of particulars in slightly different terms refers first to psychiatric injury and then to "associated severe substance abuse disorder (alcohol)". That head of claim is then elaborated by reference to a series of symptoms similar in each set of particulars. Finally and separately, particulars of economic loss including loss of earning capacity are elaborated and in that case only, quantified. 115 Psychiatric injury is dealt with at para 1 of those particulars as follows: "1. As a consequence of the collision between HMAS VOYAGER and HMAS MELBOURNE on the high seas on 10 February 1964, the plaintiff suffers from a chronic mild to moderately severe post-traumatic stress disorder and/or moderately severe depression and/or anxiety and associated with one or more of the aforegoing, he suffers from severe substance abuse disorder (alcohol) ." [emphasis added] 116 The third and final version of the particulars refers to the psychiatric injury claimed, and the associated substance abuse disorder (alcohol) as follows: "PARTICULARS OF INJURIES

1. As a consequence of the collision between HMAS VOYAGER and HMAS MELBOURNE on the high seas on 10 February 1964 the Plaintiff suffers from a chronic mild to moderately severe post traumatic stress disorder with associated severe substance abuse disorder (alcohol) . The Plaintiff suffers from moderately severe depression, and anxiety." [emphasis added] 117 From the statement of claim and particulars it is clear that: (a) a separate head of damage for psychiatric injury was claimed though not quantified, distinct from economic loss; and (b) within psychiatric injury was an associated severe substance abuse disorder, namely alcohol, said to be associated with both post traumatic stress disorder and depression, the latter being pleaded once one gets to the third set of particulars. In the earlier versions alcohol abuse was said to be associated with the post traumatic stress disorder only whilst severe depression was dealt with separately. 118 I do not consider anything hangs on these minor variations in the damages claim. The amended defence pleaded to the statement of claim so particularised. 119 Therefore, insofar as contributory negligence was in issue, it pertained specifically to a failure of the plaintiff to protect his person against damage from his alcohol abuse and binge eating. This was on the appellant's case a consequence of his post traumatic stress disorder and severe depression. That in turn was, on the appellant's case, a consequence of the collision. 120 Accordingly, the directions given by the trial judge and his Honour's summing up were directed not to contributory negligence in relation to the collision or the accident. Rather they were directed to contributory negligence in relation to the damages specified. The jury's attention was properly directed by the trial judge to decide whether: (a) the appellant had failed to protect himself against damage by bringing about " a self-induced condition caused by the plaintiff's own conduct "; or (b) the appellant's alcohol abuse was associated with psychiatric illness "caused or materially contributed to by the collision"; see directions of 23 March 2005 quoted earlier. In those directions, the trial judge refers to his continuing to drink. His Honour put to the jury the possibility that this was "when he ought to have been aware, or was in fact aware, that drinking alcohol to excess was not doing his health any good, he was failing to take reasonable care for his own safety. In other words, that he was guilty of contributory negligence". 121 The trial judge in those directions then invited the jury, if it found the plaintiff was guilty of contributory negligence, to nominate by way of a percentage the extent to which it was considered just and equitable, having regard to the plaintiff's share of responsibility "for the damage", that the amount of damages ought to be reduced. Importantly, the trial judge concludes, "You do not get to contributory negligence unless you are satisfied on the balance of probabilities that the plaintiff suffered a psychiatric injury as a result of the collision between the two vessels". 122 While therefore reading the directions as a whole, there was a strong emphasis on causation, it could not be said that the directions failed to deal with all the other related aspects of contributory negligence at common-law, even accepting that the trial judge had also the 1965 Act in mind. Thus the direction would have accorded with the 1965 Act as well as common law contributory negligence. I am satisfied that those directions concerning contributory negligence were never in relation to the accident itself, but rather to the damage claimed. They sufficed as common law directions, subject to the final matter of their specificity in relation to the damage suffered. 123 It might be argued that the contributory negligence direction was not able to be sufficiently specific in that it did not pertain to a separately quantified claim for psychiatric injury and the associated excessive alcohol intake where contributory negligence was evidently found. There was simply an overall and undifferentiated jury verdict of a single amount, reduced by 50%, the latter, it can be taken, reflecting the direction to the jury that "the damages should be reduced, having regard to the plaintiff's share in the responsibility of the damages" (Black, 1181O-R). It was only later that the trial judge separated an economic loss component from general damages encompassing psychiatric injury. I consider however that to the extent contributory negligence affected recovery for the excessive drinking and eating as items of damage associated with psychiatric injury, that was reflected in a broad-brush way in the reduction of 50% to the undifferentiated verdict. 124 I consider that no greater degree of precision in jury direction was feasible in the circumstances. It should be borne in mind that the pleadings were allowed to proceed by both parties without specific quantification of those items of damage. Though concerned with statutory apportionment I agree with the broad-brush approach adopted by the English Court of Appeal in O'Connell v Jackson (1972) 1 QB 270 as described by Edmund Davies LJ. It was a case where contributory negligence bore on the extent both of injury and damage: "The plaintiff being entirely innocent in relation to the collision without which he would not have been injured at all, the tests of blameworthiness and causative potency … are not entirely easy to apply to the injury which in fact followed. It seems to us that only a broad approach is possible. It must be borne in mind that, for so much of the injuries and damage as would have resulted from the accident even if a crash helmet had been worn, the defendant is wholly to blame, and the plaintiff not at all. For the additional injuries and damage which would not have occurred if a crash helmet had been worn, the defendant, as solely responsible for the accident, must continue in substantial measure to be held liable, and it is only in that last field of additional injuries and damage that the contributory negligence of the plaintiff has any relevance . It is not possible on the evidence to measure the extent of that field and then apportion that measure between the blameworthiness and causative potency of the acts and omissions of the parties. We can only cover the two stages in one stride and express the responsibility of the plaintiff in terms of a percentage of the whole. Giving the best consideration that we can to the whole matter, we assess the responsibility of the plaintiff in terms of 15 per cent. of the whole, and allow the appeal to the extent of reducing the damages to that extent." [emphasis added] (at 277-278) 125 Significantly Brandon J in The Calliope (at 181-2) posed the question of apportionment in terms which permitted such a division of damage from the negligence of A and B, post-accident to be determined at the detailed level of different heads of damage, but "where the facts justify it": " I should have thought that the court should ask itself the same questions in relation to each head of damage in dispute, namely, was the damage caused by the negligence of A or B of both; and if both, how should blame be divided; and that the court should be able, where the facts justify it, to answer those questions differently in relation to different heads of damage . To hold that the court has no power to act in this way involves, as it seems to me, perpetuating, in relation to part of the field of joint fault, the last-opportunity rule which has been discredited in relation to the remainder of that field. For my part, as a matter of principle, I cannot see any logical reason for such perpetuation.

This approach to the problem seems to me to be supported by the terms of the statutory provisions governing the apportionment of liability in maritime and other cases ." [emphasis added] 126 Here the facts, as presented and found, in the jury verdict do not permit greater precision than an adjustment to damages overall. The facts did not justify going further to drill down to the individual items of damage as these were not quantified till after the verdict. 127 I do not consider that the text of the 1965 Act in providing, inter alia, for statutory apportionment of damage, presupposed that the common law would in that respect have precluded an overall damages verdict where contributory negligence was allowed for in the broad-brush way here.

OVERALL CONCLUSION 128 I consider that this appeal should fail as I conclude that the directions given by the trial judge, even if with the statutory provisions of the 1965 Act in mind, reflected the same principles and outcome at common law. In particular, I consider that where the contributory negligence is directed to an item of damage, the common law accommodates either that item of damage claim, if quantified, being reduced by the extent of the contribution to it of the plaintiff's contributory negligence or for that result to be reflected in a broad-brush approach reducing damages as a whole. Here the matter was properly put to the jury in that latter way. The trial it is true did not proceed in a way that was wholly ideal. I say this having regard to the trial judge's failure to appreciate the inapplicability of the 1965 Act, explicable as this was, due to the way McLean was decided in that respect per incuriam. Nonetheless I do not consider there is any sufficient basis in substantial injustice to the appellant warranting overturning the jury's verdict or directing a re-trial. Nor would such a result be just, quick and cheap in resolving the real issues in these proceedings so as to give effect to the overriding purpose found in s56 of the Civil Procedure Act 2005 (NSW).

ORDERS 129 I would propose orders as follows: (1) Appeal dismissed. (2) Appellant to pay the respondent's costs but to have a certificate under the Suitors' Fund Act 1951 (NSW), if qualified.

Addendum 130 Since dictating the foregoing I have had the benefit of reading Ipp JA's reasons for reaching, on the last question, a different answer. I wish to add the following by way of explanation for why, as I see matters, we reach a different result on that question only.

(1) I consider that the directions to the jury were in terms which would have satisfied both s10(1) of the 1965 Act had it been applicable and common law contributory negligence, understood as applicable to damages. I do not believe it is correct to say that the directions were " on the basis of s10(1) of the 1965 Act " and thus " erroneous ". Nowhere does the trial judge refer in the direction to the 1965 Act. Insofar as its terminology is used (see for example Black, 1181O-R) " you nominate a fraction or percentage that you think is just and equitable that the damages to the plaintiff should be reduced, having regard to the plaintiff's share in the responsibility for the damages "), I consider that terminology no less applicable to common law contributory negligence applicable to damage. It was only after the jury verdict that the trial judge, wrongly, concluded the 1965 Act, not the common law, applied, invoking McLean . This could have had no effect on the jury verdict.

(2) Mitigation, though pleaded, was never argued by the appellant, who must bear the consequence of his forensic choice.

(3) While it would have been possible in theory to put to the jury a case of quantified damage, for the item psychiatric injury with further quantification of the item " drinking to excess " (and binge eating), that was not how the appellant, as plaintiff, chose to put his case. Had statutory apportionment applied, or as here, common law contributory negligence applicable only to damage, in neither case could the jury do other than it did, namely reflect the plaintiff's share of responsibility for the damages in a broad-brush way.

(4) A contemporary, post Astley common law approach to contributory negligence applicable to damage, and not the original accident, would not be the much criticised " all or nothing " approach of the latter. That is so, whether applied to damage as a whole or to the item of damage to which contributory negligence was referable. Rather the common law should here be understood to operate essentially as the 1965 Act, reflecting the plaintiff's share in responsibility for the damage overall by reference to what is just and equitable. That approach does not demand that the relevant item of damage be separately quantified, if the parties chose not to take that course in putting their cases to the jury.

(5) The content of the common law of contributory negligence as applicable to damage was clearly before this Court and the subject of detailed argument. It remains an issue requiring resolution. This is because it is only by resolving that issue that one can answer the question whether the judge's directions to the jury were in error, and were such as to justify a new trial. For the reasons stated above, I do not consider a new trial justified. 131 IPP JA: I have had the benefit of reading the reasons to be published by Santow JA. 132 I agree that the resolution of the appeal depends on the answers to the three questions formulated by Santow JA in [68]. I agree with the answers given by Santow JA to questions one and two and the reasons his Honour has expressed for arriving at those answers. It follows that I agree that the trial did not miscarry because the jury were directed to consider contributory negligence even though it was not pleaded, and I agree that the trial judge was in error in concluding that the respondent was entitled to invoke the contributory negligence provisions of s 10(1) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) ("the 1965 Act"). 133 I have come to a different conclusion, however, as to the answer to question three. Question three, as posed by Santow JA, is as follows: "Is the jury's verdict to be treated as a final and not provisional verdict and binding on the parties with its assessment of the appellant's contributory negligence at 50% taking into account the directions to the jury and notwithstanding that the common law doctrine of contributory negligence was applicable in this case and not the provisions of the 1965 Act?" 134 I agree with Santow JA that the verdict of the jury is to be treated as final. 135 By the verdict, the appellant's damages were reduced by the jury's finding that he was guilty of contributory negligence to the extent of 50 per cent of his damages. This finding followed the erroneous directions of the trial judge that the jury were to consider the issue of contributory negligence on the basis of s 10(1) of the 1965 Act. This section, at the relevant time, provided: "Where any person suffers damages as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage …" 136 In so directing the jury, the trial judge wrongly rejected the contention of the appellant that the issue of contributory negligence was governed by the common law. 137 In addition to submitting to his Honour that the common law applied, the appellant submitted that contributory negligence should not be left to the jury "because the common law did not regard contributory negligence as extending to the negligence of the plaintiff occurring after the alleged negligence of the defendant and which is claimed merely to increase the damages flowing from that negligence of the defendant". This submission was without foundation. As Gleeson CJ, McHugh, Gummow and Hayne JJ stated in Astley v Austrust Limited (1999) 197 CLR 1 (at 11, [21]): "A person may also be guilty of contributory negligence even though the negligence of the plaintiff did not contribute to the accident which caused the damage. That is because contributory negligence is concerned with the failure of the plaintiff to protect his or her person or property against damage and not with whether the failure contributed to the accident ." 138 Apportionment of damage was not known to the common law. At common law, contributory negligence was a complete defence. Causation, however, was (and is) crucial to the defence of contributory negligence. Lord Atkin explained the position in Caswell v Powell Duffryn Associated Collieries Limited [1940] AC 152 (at 165): "[I]f the plaintiff were negligent, but his negligence was not a cause operating to produce the damage, there would be no defence. I find it impossible to divorce any theory of contributory negligence from the concept of causation …" 139 The appellant's damages fell, broadly speaking, into two categories. The first was post-traumatic stress disorder and its effects. The second was the appellant's excessive food and alcohol consumption and the effects of that. The contributory negligence alleged by the respondent related only to the second category. 140 It is arguable that, at common law, any contributory negligence on the part of the appellant would operate only to defeat that part of his damages claim that related to his drinking habits and binge eating. That is because his contributory negligence did not produce any of the other damage he sustained (namely, that falling within the first category I have mentioned). Whether this be correct or not, had contributory negligence been put to the jury in accordance with the common law, and had the jury found the appellant guilty of contributory negligence on that basis, the jury's verdict could not have been that which was in fact brought down (namely, a verdict based on 50 per cent apportionment of the entire global award of $136,000). Either the contributory negligence would completely defeat the appellant's claim or only that part relating to his excessive food and alcohol consumption. The verdict would have been arrived at in a very different way. 141 I have referred to the proposition that the appellant's contributory negligence would defeat the second category of his damages claim as being "arguable" as this issue was not properly ventilated before us in argument and I do not think it appropriate to express a final view on the question. 142 I would add that it is also arguable that the appellant's excessive consumption of alcohol and food is not a matter of contributory negligence but, rather, of a failure to mitigate damage. As Santow JA points out, the respondent had pleaded mitigation but at trial the parties forgot that and argued contributory negligence. 143 In Joslyn v Berryman (2003) 214 CLR 552, McHugh J said (at 558, [16]): "At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which the plaintiff was exposed." 144 On the appellant's case, the respondent's negligent conduct caused him to eat and drink excessively. The respondent denies this but says that if its negligence was a cause of the appellant's consumption habits, the appellant, had he taken reasonable care for his own health, would have eaten and drank less. The issues so raised, it seems to me, are more concerned with whether the appellant has taken all reasonable steps to mitigate the loss consequent on the respondent's negligence, rather than whether the appellant has exposed himself to a risk of injury that might reasonably have been foreseen and avoided. 145 The appellant's excessive drinking and eating bear close similarities to those cases where an injured plaintiff unreasonably refuses medical treatment. Generally, the doctrine of mitigation has been held to apply to cases of the latter kind: see Fazlic v Milingimbi Community Inc (1982) 150 CLR 345; Fontaine v Quality Platers (1994) 12 WAR 71 (FC); Goldsborough v O'Neill (1996) 131 FLR 104 (ACT FC). 146 The respondent submitted that had the issue of mitigation been put to the jury (and not contributory negligence) there would have been little difference in the jury's verdict. In my view, that is not correct. I have pointed out that, on common law principles of contributory negligence, the verdict would have been significantly different. Moreover, the concept of mitigation of damage is different in principle to that of contributory negligence. Mitigation of damage is concerned with whether a plaintiff has taken all reasonable steps to mitigate loss. Contributory negligence is determined by blameworthiness and causal potency. 147 By reason of the way the trial was conducted, the appellant cannot complain that, at trial, contributory negligence was argued and mitigation was not. But he can complain that the directions as to contributory negligence were not in accordance with law and, therefore, the verdict was not in accordance with law. 148 On a retrial, it would be open to the appellant to submit that his excessive intake of alcohol and food was a matter of mitigation and not contributory negligence (alternatively, that any contributory negligence would only defeat that part of his claim relating to his consumption habits). Were he to succeed in either of these submissions (which I consider to be arguable), he would have a reasonable prospect of recovering significantly more than the $68,000 verdict he was awarded. 149 The appellant, having correctly submitted that contributory negligence was to be determined in accordance with the common law, should not be held to a verdict based on his contributory negligence under the 1965 Act. In my opinion, the verdict in fact delivered has resulted in a miscarriage of justice. 150 The question arises: what orders should, in consequence, be made? I recognise that it is generally undesirable to order a retrial on all issues, but I see no alternative in this case. The problem is that there was no assessment of the amount of each category of damages awarded. Should the appellant succeed in either of the arguments (relating to mitigation, or alternatively, the limited application of contributory negligence) which he would be entitled to advance, it would not be possible to determine what the effect of that success would have on the global sum of damages assessed. Thus, not only must the issues of mitigation and contributory negligence be retried, but also the respective categories of damage claimed must be assessed. 151 I propose the following orders: (a) Appeal upheld.

(b) Judgment and verdict given below be set aside. (c) The case be remitted to the Common Law Division for retrial.

(d) The respondent to pay the appellant's costs of the appeal. (e) The costs of the first trial be reserved for the judge hearing the retrial. 152 McCOLL JA: I have had the benefit of reading the reasons to be published by Santow JA. 153 His Honour has set out the three questions which arise on the appeal. As his Honour's careful analysis of the progress of the trial makes plain, the case went to the jury on the basis that the respondent had pleaded a case of contributory negligence on the part of the appellant in relation to his post-collision alcoholism and binge eating, the respondent arguing that they amounted to a self-induced injury. 154 Although the respondent had not pleaded contributory negligence, the trial was conducted on the premise that contributory negligence was a live issue. The trial judge so directed the jury without complaint from either counsel, in particular counsel for the appellant. The appellant was bound by the manner in which his counsel conducted his case. The issue of contributory negligence had been fully explored in the evidence. There was no complaint by the appellant that he was caught by surprise in any respect in the matter being put forward to the jury. I agree, therefore, that the trial did not miscarry because the jury was directed to consider the issues relating to contributory negligence. 155 As to the second question I agree, too, with Santow JA's conclusion that the trial judge erred in concluding that Commonwealth of Australia v McLean (1996) 41 NSWLR 389 meant that the defence of contributory negligence pursuant to the Law Reform (Miscellaneous Provisions) Act 1965 applied. 156 I would merely add that it was common ground on appeal that the amendments effected to the 1965 Act by the Law Reform (Miscellaneous Provisions) Amendment Act 2000 did not apply to the appellant's proceedings, they having been pending at the time the 2000 Act was passed. 157 As to the third question, I agree with Ipp JA that the directions as to contributory negligence were not in accordance with the law and, accordingly, nor was the verdict and that there should be a retrial. I also agree with his Honour's reasons for so concluding and the orders his Honour proposes. **********

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