Liftronic Pty Ltd v Unver
[2001] HCA 24(2001) 75 ALJR 867
[2001] Aust Torts Reports 81-604
(2001) 179 ALR 321
(Judgment by: Gleeson CJ)
Liftronic Pty Ltd
vUnver
Judges:
Gleeson CJMcHugh J
Gummow J
Kirby J
Callinan J
Legislative References:
Law Reform (Miscellaneous Provisions) Act 1965 (NSW) - s 10(1)
Judgment date: 3 May 2001
Judgment by:
Gleeson CJ
[1] The issue in this appeal is whether the Court of Appeal of New South Wales erred in setting aside, as perverse, a jury's apportionment of responsibility between plaintiff and defendant in a case where there was an admittedly justifiable finding of contributory negligence.
[2] In Podrebersek v Australian Iron and Steel Pty Ltd, this Court said [1] :
"A finding on a question of apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds' ... Such a finding, if made by a judge, is not lightly reviewed. The task of an appellant is even more difficult when the apportionment has been made by a jury."
[3] I agree with McHugh J that, having regard to the manner in which the case was conducted and left to the jury at trial, it is not possible to say that it was unreasonable for the jury to place the responsibility on the plaintiff to the extent found, and to make the apportionment that they made.
[4] I agree that the appeal should be allowed and the proceedings remitted to the Court of Appeal as proposed by Gummow and Callinan JJ.