Which case won?

casea
The case for the defendant
  • The plaintiff knew that I was intoxicated. This means that I did not owe him a duty of care.
  • We both elected to ride unregistered trail bikes on a public road even though the plaintiff was unlicensed and we were both heavily intoxicated. This means that together, the plaintiff and I were involved in a breach of the criminal law, more specifically a “joint illegal enterprise”.
  • In these circumstances the plaintiff is not entitled to claim compensation.
  • Even if the plaintiff was owed a duty of care, his own contribution to the accident was so extensive that he should receive a 100% discount on his compensation.
caseb
The case for the plaintiff
  • I accept that we were both very foolish to ride the trail bikes at all in the circumstances. However, the defendant was more foolish than I was, and I am less to blame. Unlike me, the defendant failed to keep to the correct side of the road, did not wear a motorcycle helmet and was exceeding the speed limit at the time of the collision.
  • Despite all the surrounding circumstances, the defendant still owed me a duty of care.
  • He breached that duty of care by riding his motorcycle so negligently that he caused a collision between the two trail bikes. If he’d kept to his side of the road, the accident would never have happened.
  • I accept that I should receive a 25% discount on my compensation to reflect the extent of my contribution to the accident.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case B won. You were right!

How people voted
a46%
b54%

Expert commentary on the court's decision

Brett WattsAssociate
“It was clear from the facts of the case that the primary cause of the accident, whatever the surrounding circumstances, was the defendant’s failure to keep to his side of the roadway. Had he exercised reasonable care and skill in his riding of the motorcycle, the accident could have been avoided.”
District Court finds in favour of plaintiff

In the case Cooper v Nominal Defendant [2017] NSWDC 3, the District Court decided in favour of the plaintiff, Mr Buck Cooper. This decision was upheld on appeal to the Court of Appeal in The Nominal Defendant v Buck Cooper [2017] NSWCA 280.

The primary judge dismissed most of the submissions made by the defendant, Mr Timothy Lamont, as to the reasons why there was no duty of care owed by Mr Lamont to Mr Cooper, even in these very unfortunate circumstances.

It was clear from the facts of the case that the primary cause of the accident, whatever the surrounding circumstances, was Mr Lamont’s failure to keep to his side of the roadway. Had Mr Lamont exercised reasonable care and skill in his riding of the motorcycle, the accident could have been avoided.

In weighing up all of the relevant circumstances, the primary judge found that Mr Lamont had a greater share of the responsibility for the accident than Mr Cooper did. The primary judge found that Mr Cooper’s compensation should be reduced by one-third (33%) for his contributory negligence.

Court of Appeal upholds original decision and dismisses appeal

Mr Lamont appealed the decision of the primary judge to the Court of Appeal on several bases, arguing that the primary judge had made a number of important errors in relation to the facts of the case and the application of the law to those facts.

Mr Lamont argued that the primary judge had come to the wrong conclusion about whether Mr Lamont was entitled to rely on a number of defences.

Mr Cooper accepted that the primary judge had made some errors in his factual findings but submitted on appeal that these errors did not change the ultimate outcome of the case and that the primary judge had come to the correct conclusion.

The assessment of 33% for contributory negligence was upheld and the appeal was dismissed.

Have your say

Other cases