City of Brimbank v Halilovic [2000] VSCA 12

Respondent's counsel argued that this Court should interfere with his Honour's finding of contributory negligence or the apportionment of 60% of the blame assessed to the respondent. It was, in my opinion, well open on the respondent's own evidence for the trial judge to conclude that he had failed to keep a proper lookout and that such failure amounted to contributory negligence. It was, as his Honour found, the failure of the respondent to see the jagged steel lying on the road surface until he was, in essence, "on top of it" that caused him to swing the car to the left, thus hitting the kerb and depriving him of control. In the light of the evidence that the weather was fine and that there was nothing to obstruct vision, the finding of failure to keep a proper lookout was, as it seems to me, almost inevitable. I do not accept the respondent's contention that his conduct ought to have been regarded by the judge as mere inadvertence or momentary inattention not amounting to contributory negligence. Nor do I accept the contention that it was the appellant's negligence which was "the real cause of the accident". It is true that in industrial accident cases where a breach of the employer's duty to provide a safe system of work has been established, inadvertence or momentary inattention on the part of the plaintiff may not necessarily amount to contributory negligence in a particular case (cf. Bankstown Foundry Pty Ltd v. Braistina [1986] HCA 20; (1986) 160 C.L.R. 301); but it is incorrect to assert that, even in those circumstances, such conduct can never amount to contributory negligence: Kakouris v. Gibbs Burge & Co. Pty.Ltd [1970] V.R.502 at 508-9. Even if such conduct could, in some circumstances, be said to be consistent with reasonable care, there was nothing in the evidence before his Honour which would enable this Court to interfere with his finding that the belated observation of the danger in front of the respondent amounted to negligence on his part. Nor, in my view, is it open to the respondent to challenge his Honour's apportionment of blame. Apportionment of responsibility or blame between two parties is an exercise very much in the nature of a value judgment with which an appellate court is, and ought to be, loath to interfere. It is well established that it is a difficult task to set aside a finding of apportionment of blame. That is so whether the finding is made by a judge or a jury (Rukavina v. Incorporated Nominal Defendant [1992] 1 V.R.677 at 685). In Podrebersek v. Australian Iron and Steel (1985) 59 A.L.R.529 the High Court said, at 532:

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