The Facts
Intoxicated friends ride trail bikes on public road and crash into each other
At 5:15 in the morning following a night of heavy drinking, the plaintiff and defendant (who were friends) each rode unregistered off-road motorcycles (trail bikes) on a public road in New South Wales. Neither motorcycle was fitted with a headlight.
While travelling in opposite directions along the road, the two trail bikes were involved in what was effectively a head-on collision.
The collision occurred on the plaintiff’s side of the road, about 1.5 metres from the centre line on the road. The bikes collided both on their left sides, which meant that the defendant’s bike had to have crossed the path of the plaintiff’s bike before they collided.
The plaintiff was wearing a motorcycle helmet, but the defendant was not. While the plaintiff was unlicensed, he did have considerable experience riding trail bikes.
Blood-alcohol content of defendant three times the legal limit
Both the plaintiff and the defendant were intoxicated. The plaintiff’s blood-alcohol content (BAC) was undetermined. The defendant’s BAC was estimated by a forensic pharmacologist to be 0.156 at the time of the accident, which is over three times the legal limit for driving a motor vehicle.
The evidence established that the defendant was travelling in excess of the speed limit, while the plaintiff was travelling at or below the speed limit.
Plaintiff suffers serious injuries and sues Nominal Defendant
The plaintiff suffered very significant injuries, including the amputation of his left leg and the loss of effective use of his left arm, among others.
The plaintiff sued “the Nominal Defendant”, the entity which is taken to be the insurer of unregistered or uninsured vehicles for the purposes of a compensation claim arising from accidents which occur on the roads in New South Wales.
Expert commentary on the court's decision
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.