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.