Where contributory negligence is directed to post-accident damage rather than the accident itself, the common law position on apportionment remains unresolved. The majority held that at common law, contributory negligence was a complete defence without apportionment, meaning a jury direction based on statutory apportionment was erroneous and required a retrial. The dissent (Santow JA) argued the common law should be understood to accommodate apportionment for contributory negligence as to damage. The question whether post-accident excessive alcohol consumption and eating is properly characterised as contributory negligence or failure to mitigate was left open as arguable.
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