Mikaera v Newman Transport Pty Ltd  NSWCA 464
McColl JA at , Basten JA at , Macfarlan JA at 
33 Section 5R of the Civil Liability Act provides:
“5R Standard of contributory negligence
(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose:
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.”
34 Section 5R(2)(a) reflects the position under the common law as stated by McHugh J in Joslyn v Berryman  HCA 34; (2003) 214 CLR 552 (at  – ): Smith v Zhang  NSWCA 142; (2012) 60 MVR 525 (at ) per Meagher JA (Tobias AJA agreeing). The correct legal question in determining the issue of contributory negligence in accordance with s 5R is “whether a reasonable person in the position of the respondents, i.e. having the knowledge which the respondents had or ought to have had, was negligent”: Origin Energy LPG Ltd v BestCare Foods Ltd  NSWCA 407 (at ) per Hoeben JA (Macfarlan and Ward JJA agreeing); see also Council of the City of Greater Taree v Wells  NSWCA 147; (2010) 174 LGERA 208 (at  – ) per Basten JA.
35 In Ghunaim v Bart  NSWCA 28; (2004) Aust Torts Reports ¶81-731, I summarised the principles concerning the review of a finding of contributory negligence as follows:
“ A finding of contributory negligence is no different to a finding of negligence and may be reviewed on appeal. While an appeal court must pay appropriate deference to the advantages the trial judge enjoyed in deciding whether or not a person was guilty of contributory negligence, it must not shirk its statutory obligation to conduct a rehearing and, where error is found, must substitute its own conclusion on the issue: s 75A(5) Supreme Court Act 1970 (NSW), see Fox v Percy  HCA 22; (2003) 77 ALJR 989 at 993-994, esp at ,  per Gleeson CJ, Gummow and Kirby JJ; Callinan J at 1015-1017  – . As was said in Warren v Coombes  HCA 9; (1979) 142 CLR 531 at 552 per Gibbs ACJ, Jacobs and Murphy JJ, ‘[T]here is … no reason in logic or policy to regard the question whether the facts found do or do not give rise to the inference that a party was negligent as one which should be treated as peculiarly within the province of the trial judge’: see also Fox v Percy at 1005  per McHugh J.
 Appellate review of a trial judge’s apportionment of liability as between respectively culpable parties, however, is governed by the stringent tests which limit appellate review of discretionary decisions.
 In Podrebersek v Australian Iron & Steel Pty Ltd  HCA 34; (1985) 59 ALJR 492 at 493 – 494 Gibbs CJ, Mason, Wilson, Brennan and Deane JJ in their joint judgment said: ‘[a] finding on the issue 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.’
 This Court has frequently reminded itself of the necessity to exercise restraint in reviewing a trial judge’s decision on apportionment. As Sheller JA (with whom Powell and Heydon JJA agreed) said in Mousa v Marsh  NSWCA 317 at :
It is well established that since a court’s apportionment of the degree of liability due to the plaintiff’s contributory negligence is 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 all of which involve an individual choice or discretion as to which there may well be differences of opinion by different minds (see British Fame (Owners) v Macgregor (Owners)  AC 197 at 201), such a finding, if made by a judge, is not lightly reviewed.
 To set aside an apportionment of liability it must be shown that the failure to exercise the discretion involved in the apportionment exercise properly was unreasonable or plainly unjust: Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd (2001) 53 NSWLR 626 at 637  per Stein JA with whom Davies A-JA agreed (655 at ). Fitzgerald A-JA was of the view that an appeal court was not entitled to interfere ‘if the trial judge’s apportionment was reasonably open.’ (653 at ). Rolls Royce was appealed to the High Court as Amaca Pty Ltd v State of New South Wales  HCA 44; (2003) 77 ALJR 1509. As Tobias JA (with whom Sheller and Foster AJA agreed) recently observed, the appeal was allowed on an issue which did not affect the correctness of Stein JA’s statement of principle: Rexstraw v Johnson  NSWCA 287.”
36 I would add to the observations from Ghunaim v Bart (at ) a reference to Basten JA’s recent statement in Nominal Defendant v Green  NSWCA 219; (2013) 64 MVR 354 (at ) recognising the importance of the principle of restraint, but emphasising that its operation may vary depending on the circumstances. As his Honour also said, where an apportionment finding “is outside an appropriate range, this Court, on an appeal governed by s 75A of the Supreme Court Act 1970 (NSW), should usually intervene.”
Reproduced with permission of Robert Sheldon SC
Brisbane Barrister – David Cormack