Joslyn v Berryman; Wentworth Shire Council v Berryman
[2003] HCA 34(Decision by: Hayne J)
Joslyn
vBerryman; Wentworth Shire Council v Berryman
Judges:
Mchugh J
Gummow J
Kirby J
Hayne JCallinan J
Subject References:
aware or ought to have been aware
just and equitable in the circumstances of the case
responsibility for the damage
voluntary passenger
Legislative References:
Motor Accidents Act 1988 (NSW) - s 74(2)
Law Reform (Miscellaneous Provisions) Act 1965 (NSW) - s 10; Pt 3
Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA) - s4(1)
Wrongs Act 1954 (Tas) - s 4(1)
Law Reform (Miscellaneous Provisions) Act 1956 (NT) - s 16(1)
Wrongs Act 1958 (Vic) - s 26(1)
Wrongs Act 1936 (SA) - s 24K
Transport Accidents Compensation Act 1987 (NSW) - The Act
Judgment date: 18 June 2003
Decision by:
Hayne J
[153] The facts and circumstances giving rise to these appeals are set out in the joint reasons of Gummow and Callinan JJ. I do not repeat them. I agree that each of the appeals to this Court should be allowed with costs. I do not agree, however, that the primary judge was shown to have erred in assessing the level of contributory negligence as he did. I would therefore restore the judgment of the primary judge.
[154] As the reasons of the other members of the Court demonstrate, the evidence at trial warranted, indeed compelled, the conclusion that Mr Berryman was contributorily negligent. The primary judge found the ability of the driver of the vehicle at the time of the accident, Ms Joslyn, to drive the vehicle was impaired as a consequence of her consumption of alcohol. (He found as a fact that her blood alcohol level at the time of the accident was about 0.138 grams per 100 millilitres.)
[155] On these findings of fact, s74(2)(b) of the Motor Accidents Act 1988 (NSW) was engaged. S74(2) required the primary judge to make a finding of contributory negligence. The question was then what reduction in damages recoverable did the court think "just and equitable in the circumstances of the case" [153] . The primary judge gave careful attention to this question and concluded that a reduction of 25 per cent was appropriate.
[156] There is no basis for concluding that the primary judge erred in making the factual findings which he did. The Court of Appeal did not expressly say that the primary judge had erred in this way. Rather, the Court of Appeal addressed a different question: one which it was said [154] the primary judge did not. The question which the Court of Appeal appears to have considered to be determinative was whether, at the time he handed control of the car to Ms Joslyn, Mr Berryman should have observed that she was affected by intoxication. That is a narrower and different question from the question presented by s74(2)(b) of the Act. The relevant statutory question - ought the injured person to have been aware of the impairment of the driver's ability to drive as a consequence of the consumption of alcohol - invited attention to wider considerations. They included all matters reasonably bearing upon the injured person's knowledge of impairment, not just observations which it was open to the injured person to make at the time of handing over control of the vehicle or getting into the vehicle as a passenger. The primary judge considered these matters. The Court of Appeal did not.
[157] Findings about apportionment of responsibility are not lightly to be disturbed [155] . In Podrebersek v Australian Iron & Steel Pty Ltd [156] , five members of the Court said:
"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': British Fame (Owners) v Macgregor (Owners) [157] . 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: Zoukra v Lowenstern [158] ."
So much follows from the nature of the task that is undertaken in making such an apportionment. As was said in Podrebersek [159] :
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris [160] ) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [161] ; Smith v McIntyre [162] and Broadhurst v Millman [163] and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."
S74(3) of the Motor Accidents Act required the primary judge to undertake this process. No error is shown in his Honour's conclusion.
[158] As Kirby J pointed out in Liftronic Pty Ltd v Unver [164] , contributory negligence and apportionment are always questions of fact. It is, therefore, wrong to elevate what was said in past cases about the facts of those cases to any principle of law [165] . That is, it is wrong to attempt to deduce from what has been said in such cases, often decided in a different legal context from that provided in this case by the Motor Accidents Act, any general principles to be applied in cases where passengers suffer injury as a result of the negligence of a drunken driver. Each case turns on its own special facts. It is, therefore, neither necessary nor appropriate to review any of the regrettably large number of decisions, in Australia and elsewhere, in which factual issues of that kind have been decided. The applicable rule is that prescribed by the Motor Accidents Act. The manner of making the necessary apportionment is described in Podrebersek.
[159] I would, therefore, order, in each appeal:
- 1.
- Appeal allowed with costs.
- 2.
- Set aside para2 of the orders of the Court of Appeal of New South Wales made on 11 April 2001 and in its place order that the appeal in Allan Troy Berryman v Sally Inch Joslyn & Anor be dismissed with costs.