Date: Thu, 20 Sep 2007 05:55

From: Harold Luntz

Subject: Mitigation and Contributory Negligence

It would be interesting to have the views of the members of the ODG on the relationship between mitigation of damage and contributory negligence at common law. It was raised, but not resolved, in Ackland v Commonwealth of Australia [2007] NSWCA 250 (20 September 2007).

Let me provide some background. In 1964, in what is often described as Australia's worst naval disaster, HMAS Melbourne collided with HMAS Voyager, cutting the latter in two. For a long time it was thought that serving members of the armed forces could not sue the Commonwealth, even for injuries sustained in peacetime activities. When that was shown to be wrong, hundreds of actions were instituted by survivors. Eventually, the Commonwealth was forced to concede liability to sailors aboard the Voyager who suffered injury. Some of you may be familiar with Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394 (5 September 1990) on estoppel and waiver. After some further litigation, the Commonwealth did proceed to settle many of the claims by those who were aboard the Voyager. Subsequent developments in relation to psychiatric injury opened the way to claims by those aboard the Melbourne. Many of the claimants had to overcome limitation of actions problems and the Commonwealth has been fighting these claims through the courts. A recent one is Commonwealth of Australia v Smith [2007] NSWCA 168 (13 July 2007).

Many of the claimants have sought damages for alcoholism and similar conditions alleged to have been consequent on their psychiatric injury. In the Ackland case the trial judge, in directing the jury, followed Commonwealth v McLean (1996) 41 NSWLR 389 (CA), where the contributory negligence apportionment statute was applied in such a case. After the trial in Ackland it was realised on all sides that, NSW being a relative latecomer to the apportionment regime, the statute did not apply. The issues therefore had to be determined at common law. The majority (Ipp and McColl JJA) held that there had to be a new trial, at which the relationship between mitigation of damage and contributory negligence at common law could be argued. Santow JA dissented on the issue of whether a new trial was required, quoting at [97]-[98] Glanville Williams's view in Joint Torts and Contributory Negligence that mitigation is a species of contributory negligence. He also discussed at [95]-[96] a South Australian case where the plaintiff failed to call the fire brigade after a fire had begun to damage his property, which was decided on the basis of contributory negligence, but could, he said, equally have been decided on the basis of failure to mitigate.

What are the views of members on the relationship between the two doctrines?

Harold Luntz.

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