(a) relevant principles
79The appellant submitted that the case must be decided by reference to s 5R of the Civil Liability Act 2002 (NSW). That section provides:
5R Standard of contributory negligence
(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose:
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
80The appellant further submitted that the relevant principles had been summarised by Beazley JA (with whom McColl JA agreed) in Council of the City of Greater Taree v Wells [2010] NSWCA 147 in the following terms:
"[82] In Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815 at [67] and [68], Ipp JA (Giles JA and Hunt AJA agreeing) noted that in determining whether a plaintiff has been contributorily negligent it is necessary to have regard to the plaintiff's personal responsibility for his or her own safety. As Callinan and Heydon JJ remarked in Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, at [220] 483, a person owes a duty:
'... not just to look out for himself, but not to act in a way which may put him at risk, in the knowledge that society may come under obligations of various kinds to him if the risk is realized.'
These remarks are consistent with the provisions of the Civil Liability Act, s 5R(1): Consolidated Broken Hill per Ipp JA at [67] 558-559.
[83] Contributory negligence is determined objectively from the facts and circumstances of a case, which includes what the plaintiff knew or ought to have known at the time: s 5R(2)(b); Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 at [16]."
81The appellant referred to the statement of the High Court in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at 494 that:
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682 ...."
82The respondent adopted the same passage from Podrebersek, but added a reference to Talbot-Butt v Holloway (1990) 12 MVR 70, where Handley JA stated at 88, reflecting the reasoning in Pennington v Norris [1956] HCA 26; 96 CLR 10:
"The evaluation and assessment of the culpability of the plaintiff and the defendant must take proper account of the fact that ... the plaintiff's conduct posed no danger to anyone but herself, while the defendant who was driving (the vehicle) ... was in charge of a machine that was capable of doing great damage to any human being who got in its way."
83One feature of recent case law is the frequent reference to the "common law rules of contributory negligence". (Even under the common law it was rarely helpful to refer to 'rules' as opposed to 'principles': see Alford v Magee [1952] HCA 3; 85 CLR 437 at 456 and 460.) However, were it not for the terms of the Motor Accidents Compensation Act 1999 (NSW) and the Civil Liability Act, contributory negligence would be assessed in accordance with s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) ("the 1965 Act"). That section relevantly provides:
9 Apportionment of liability in cases of contributory negligence
(1) If a person (the claimant) suffers damage as the result partly of the claimant's failure to take reasonable care (contributory negligence) and partly of the wrong of any other person:
...
(b) the damages recoverable in respect of the wrong are to 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.
84The Motor Accidents Compensation Act provides that "[t]he common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section": s 138(1). The section then provides that findings of contributory negligence must be made in particular cases, but expressly preserves any other ground: s 138(2) and (6). Section 138(3) states that "[t]he damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case." Although this last provision is not identical in terms to s 9(1)(b) of the 1965 Act, because s 138 does not purport to impinge on the obligation to have regard to the injured person's share in the responsibility for the damage, it should not be read as an exception to which s 9(1) is made subject by s 138(1) of the Motor Accidents Compensation Act.
85Section 5R of the Civil Liability Act is found in Div 8 of Pt 1A. Those provisions expressly apply to motor accidents: Civil Liability Act, s 3B(2)(a). The Civil Liability Act being enacted later than the Motor Accidents Compensation Act, and making specific provision in s 3B for its operation with respect to motor accidents, should not be taken as subject to s 138. Rather, it should be given operation according to its terms.
86In this somewhat complex statutory scheme it is not clear what role is to be played by the "common law", including the reference in s 138(1) of the Motor Accidents Compensation Act. If (as must be the case) it means no more than the way courts have construed the statutory provisions, it is not only otiose, but "is apt to distract attention from the supreme importance of statute law", to adopt the language of Gummow J in Sons of Gwalia Ltd v Margaretic [2007] HCA 1; 231 CLR 160 at [35]; and see Walker Corporation v Sydney Harbour Foreshore Authority [2008] HCA 5; 233 CLR 259 at [30]-[31] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ); Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd [2013] HCA 50; 304 ALR 1 at [18] (French CJ). For example, s 5R(2) of the Civil Liability Act deals with the "standard of care", which may or may not affect the "just and equitable" test in s 9 of the 1965 Act.
87The references in the case law are often to the "rules" identified by McHugh J in Joslyn v Berryman [2003] HCA 34; 214 CLR 552 at [16]ff. These references are curious for a number of reasons. First, Joslyn was concerned with the application of s 74(2) of the Motor Accidents Act 1988 (NSW), not the common law (assuming the intended distinction is between the common law and statute; cf Leeming JA in Frost v Kourouche [2014] NSWCA 39 at [31]). McHugh J was indeed conscious of that distinction, making clear the importance of the statutory test at [14]. The following paragraphs of his judgment involved an historical account of the "common law" of contributory negligence, at a time when contributory negligence was a complete defence and the common law devised a number of mechanisms to diminish the unsatisfactory consequences. Secondly, no other member of the Court expressly adopted the reasoning of McHugh J. Thirdly, whilst doubting the current applicability of the reasoning of the High Court in Cook v Cook [1986] HCA 73; 162 CLR 376 (in respect of the duty of a care owed by a learner driver to an instructor) Joslyn pre-dated the decision in Imbree v McNeilly [2008] HCA 40; 236 CLR 510 which overruled Cook.
88Finally, although there have been statements in this Court to the effect that s 5R(2) reflects the principle stated by McHugh J in Joslyn, the correctness of that statement is not self-evident and the reasoning underlying it has never been fully exposed, no doubt because it has been accorded the status of received wisdom. However, McHugh J described the test of contributory negligence as "an objective one": Joslyn, at [32]. He described it as one which "eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question", quoting Glasgow Corporation v Muir [1943] AC 448 at 457 (Lord Macmillan). McHugh J noted exceptions in respect of children and possibly certain other "special and exceptional circumstances" (referring to Cook) at [30] and [32]. The standard identified in s 5R(2)(a) is at best a qualified objective test: it is not one that conforms to the language adopted by McHugh J in Joslyn.
89For present purposes, it is not necessary to consider whether those statements remain correct, a matter which depends not at all on the common law, but on the meaning of the phrase "a reasonable person in the position of [the injured person]". However, what does need to be determined is the extent to which the approach adopted in Pennington v Norris, and relied on in Talbot-Butt, continues to operate.
90There are, as I sought to explain in Council of the City of Greater Taree v Wells at [107]-[108], considerable difficulties in applying the same legal principles in determining negligence of the defendant and determining whether the injured party was contributorily negligent in failing to take precautions "against the risk of that harm". Secondly, it is not entirely clear whether, by an implication from the statement in sub-s (1) that the principles applicable in determining negligence also apply in determining contributory negligence, the standard of care identified in sub-s (2) in relation to the injured person also applies to the person causing the injury: cf D Villa, Annotated Civil Liability Act 2002 (NSW) (2nd ed, 2013, Lawbook Co) at 247.
91Thus, in the present case, the appellant is vicariously liable for the negligent operation by the driver of the forklift, and is liable for any lack of reasonable care in providing a safe system of work as the operator of a commercial venture on land which it occupied and controlled. By contrast, the injured respondent was a visitor to the premises, with no control over the operation of vehicles (other than his own) on the premises and was a pedestrian when struck. In Pennington v Norris, the Court (Dixon CJ, Webb, Fullagar, Kitto JJ) said with respect to a pedestrian run down at night on a public road (at 16):
"The plaintiff's conduct was ex hypothesi careless and unreasonable but, after all, it was the sort of thing that is very commonly done: he simply did not look when a reasonably careful man would have looked. We think too that in this case the very fact that his conduct did not endanger the defendant or anybody else is a material consideration. The defendant's position was entirely different."
92The judgment then noted that the defendant did not merely fail to keep a proper lookout, but drove too fast in circumstances where it was a misty night, the road was wet and visibility was impaired in part by mistiness on the inside and outside of the windscreen. Driving at 30 miles per hour in a town at night under those circumstances was described as "an obviously dangerous thing": at 17.
93Findings of fact are not, of course, binding on this Court. It would be open to a court in such circumstances to find that a pedestrian walking carelessly across the road had endangered others, because of the very real risk that a car forced to swerve violently to miss a pedestrian might collide with another vehicle, or even another pedestrian. Further, although the Court eschewed any attribution of "moral blameworthiness" the assessment of "culpability" did not appear to involve markedly different considerations. If the respective dangerousness of a pedestrian's conduct and the conduct of a driver is always a substantial factor, the most careless pedestrian will recover a significant proportion of his loss even though the negligence of the driver was limited, because it is the latter who is driving, in the words of Handley JA, "a machine that was capable of doing great damage to any human being who got in its way".
94The intended purpose of s 5R is clearer than its actual operation. It was intended to apply to the assessment of contributory negligence the general principles set out in s 5B (and arguably s 5C) in determining the negligence of the defendant. Like s 5B(1)(c), s 5R(2) adopts the qualified objective test of "a reasonable person in the position of [the plaintiff]".
95According to the final report entitled Review of the Law of Negligence (September 2002, commonly referred to as the Ipp Report) the provision was intended to change current practices. Somewhat rhetorically, the report asked at paragraph 8.7:
"Should the law allow people to take less care for their own safety than it requires others to take for their safety? ... Another way of putting this question is to ask whether the standard of care applicable to victims of the negligent conduct of others should be different from that applicable to the negligent person merely because they are victims?"
96The Report then stated at par 8.11:
"Leading text book writers have asserted that in practice, the standard of care applied to contributory negligence is lower than that applied to negligence despite the fact that, in theory, the standard should be the same. There is a perception (which may reflect the reality) that many lower courts are more indulgent to plaintiffs than to defendants. In some cases judges have expressly applied a lower standard of care for contributory negligence. This may result, for example, in motorists being required to keep a better lookout than pedestrians. In the Panel's view, this approach should not be supported."
97The penultimate sentence was supported by reference to three judgments in the High Court and two in the South Australian Supreme Court. The comments of Murphy J in Watt v Bretag (1982) 56 ALJR 760 at 762-763, are in point. Referring to the South Australian equivalent of the 1965 Act, s 9(1)(b), Murphy J stated:
"The speed and size and weight of the vehicles in contributing to the severity of the damage should be taken into account, not merely those factors which contributed to the collision. ... For example, where the collision is between a semi-trailer or other juggernaut vehicle and a pedal bicycle, even if the driver and the plaintiff rider each made an equal contribution to causing the collision, it would generally be just and equitable to reduce the plaintiff's damages not by half, but by much less. Similarly, excessive speed may greatly increase the damage, even though the fault of the other driver was the major cause of the collision."
98There is some irony in placing reliance on the reasoning of Handley JA in Talbot-Butt: his was a dissenting judgment. Further, in the following paragraph, he was inclined to diminish the weight to be given to the factor which he had identified. On the other hand, Clarke JA (who, with Kirby P, constituted the majority) expressed a similar view at 78(45). Clarke JA described this factor as being of "primary relevance" in determining the relative responsibilities, referring to Evers v Bennett (1982) 31 SASR 228 at 234, where Zelling J stated that "[t]he train of authority over many years is to hold the motorist, who is capable of doing considerable injury to a pedestrian, more culpable than the pedestrian in such circumstances." Evers was one of the cases identified in the Ipp Report as expressly applying a lower standard of care to plaintiffs.
99Assuming that the requirement that people should take responsibility for their own lives and safety is now reflected in s 5R, and was intended to override the approach of Murphy J in Watt, there is a question as to whether the statements in Talbot-Butt still reflect the law in this State. The potential dangerousness of heavy machinery and fast vehicles can no doubt be applied universally, although the consequence of its application will vary depending on whether one, both or neither party is in control of such a vehicle. On the other hand, applying the general principles in s 5B(2) one could approach the matter differently. Thus, the probability that harm would occur if care were not taken and the likely seriousness of the harm would operate differentially with respect to the driver of the forklift and the pedestrian, but with the same result. That is, no distinction is made between the fact that from one perspective the driver is in control of a vehicle that could cause serious harm to a pedestrian, whilst from the perspective of the pedestrian, it was the likelihood of serious harm which was to be considered. If the plaintiff were aware, or ought to have been aware, of the presence of a large forklift operating in the area and if the forklift driver were aware, or should have been aware, of the likely presence of pedestrians, and if each were equally careless, liability should be shared equally.
100A purposive approach to the operation of s 5R (and s 5B) requires that this approach be adopted. To approach the matter in this way is not to decline to follow applicable earlier authority of this Court. Talbot-Butt long pre-dated the Civil Liability Act; it also pre-dated s 74 of the Motor Accidents Act, the forebear of s 138 of the Motor Accidents Compensation Act.