Joslyn v Berryman; Wentworth Shire Council v Berryman

[2003] HCA 34

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(Judgment by: Gummow J, Callinan J)

Joslyn
vBerryman; Wentworth Shire Council v Berryman

Court:

Judges: Mchugh J

Gummow JKirby J
Hayne J

Callinan 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

Hearing date:
Judgment date: 18 June 2003

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Judgment by:
Gummow J
Callinan J

[51] This case is concerned with the application of s74 of the Motor Accidents Act 1988 (NSW) ("the Act") to a case in which an intoxicated owner of a motor vehicle who relinquished its management to a similarly inebriated person suffered injuries as a result of the latter's negligent driving.

The facts

[52] Mr Berryman who was then 22 years of age, drank sufficient alcohol in the company of Sally Inch Joslyn on Friday evening, 25 October 1996, to be so intoxicated as to feel "fairly crook" on the following morning. He worked during the day on Saturday, rested for a time, and then, at about 9pm went to a party at a property near Dareton in south-western New South Wales. With one interruption, at about 11.30pm, Mr Berryman spent his time at the party, until about 4am, drinking alcohol. By that hour he must have been, indeed he admitted that he was, and as the objective evidence of the amount of alcohol in his bloodstream some hours later established, beyond doubt, quite drunk. He went to sleep on the front seat of his utility motor vehicle. In his evidence he claimed to have no further recollection until he heard a scream, and realized that he was a passenger in his vehicle which was turning over.

[53] Mr Berryman had been friendly with Ms Joslyn before the Friday night preceding the accident. He was aware that she had lost her driving licence on her conviction for driving a motor vehicle with a blood alcohol content of 0.15g/100ml.

[54] Ms Joslyn said that she and Mr Berryman spent the Friday evening drinking together until after midnight at hotels in Wentworth. Afterwards they returned to Ms Joslyn's residence where they continued drinking.

[55] Ms Joslyn took a bottle of whisky with her to the party on the following Saturday evening. She travelled as a passenger in a car with three other women. Ms Joslyn drank from the bottle at the party. Whether anyone else also did so she was unable to say. Again, as the objective evidence of alcohol in her blood showed, she too must have been seriously adversely affected by the consumption of it. The reading, some hours later, was in her case, 0.102g/100ml. Indeed Ms Joslyn was observed by others at the party to be "quite drunk and staggering about" at 4.30am.

[56] Early in the morning of the Sunday Ms Joslyn had placed her swag on the ground beside Mr Berryman's vehicle and had gone to sleep. Ms Joslyn said she did not know where the keys to the vehicle were when she fell asleep but she knew she had them when she woke not long after daylight, having heard Mr Berryman moving about in his vehicle. No one else was up at that time. There was a discussion between her and Mr Berryman, to whom she gave the keys to his vehicle which he drove, with Ms Joslyn as a passenger into Mildura, along the road upon which the vehicle was later to overturn. The journey took some 15 to 20 minutes. When they arrived at a McDonald's café, Mr Berryman entered, ordered food, paid, drove towards the river, stopped and ate the food. He did not drink alcohol in that time.

[57] Ms Joslyn said Mr Berryman had commenced the drive back to Dareton, but, at some time after they entered Hollands Lake Road she noticed he was dozing off. She must have reproached him for doing so for he said, "Well, you drive the car then." He stopped the vehicle and exchanged places with Ms Joslyn. She then commenced to drive it and did so to the point of the accident.

[58] Ms Joslyn had last driven a vehicle three years earlier. She had at some time previously told Mr Berryman of that. She did not see the curve until the last minute. "It was just there all of a sudden and it turned really sharply and the car wouldn't go round the bend."

[59] By the time the vehicle entered the curve Ms Joslyn had been driving, she estimated, for a couple of minutes at most. She could not say at what speed she travelled as the speedometer of the vehicle was broken.

[60] Describing the curve where the vehicle left the road and overturned, she said that it looked as if it were just a simple curve "and then it goes right back around sharply". That was something she realized when she was already in the curve. Mr Berryman suffered serious injuries in the accident.

The trial

[61] Mr Berryman sued for damages in the District Court of New South Wales. The action was tried by C J Boyd-Boland ADCJ. His Honour made these rather generous findings in favour of Mr Berryman:

"Having made the decision, along with others, before the party commenced, to stay overnight at the party, the Plaintiff should have had in contemplation that he might have to later become a passenger in his own motor vehicle because of the alcohol he anticipated consuming. Although I think he did not give the matter consideration, he should have contemplated his vehicle might be driven by Miss Joslyn who was his companion for the evening and ought to have considered the prospect of a journey such as that undertaken to Mildura. He did not do so. He had no regard to the consequences of his own alcohol consumption but more significantly, as it turned out, despite saying in evidence he would not have allowed Miss Joslyn to drive, because of his knowledge of her alcohol consumption, he did just that. It was obvious to him before he went to sleep that Miss Joslyn would not be fit to drive on the following morning. I believe, at the time of change over of drivers, he did not consider that issue, but should have done so and was capable of so doing. The failure to take these matters to account was contributory negligence. The Plaintiff ought also to have realised the lack of experience and qualifications of Miss Joslyn particularly given his knowledge of the propensity of his vehicle to roll over.

My assessment of the degree of the Plaintiff's contributory negligence has been reduced from what it would otherwise be because I find ... at the time of the hand-over Miss Joslyn exhibited none of the obvious signs of intoxication which one would expect to be present. That, it seems to me, could have influenced the Plaintiff if he had properly put his mind to the issue of Miss Joslyn's capacity. It warrants a reduction in the assessment of his contributory negligence which, but for that factor, I would have fixed at 331/3%. The level of reduction would be the same against [Ms Joslyn and the Council] there being no real difference in their arguments and in the defences pleaded on this issue. I find it appropriate to reduce the Plaintiff's verdict by virtue of his contributory negligence by 25%. His verdict against [Ms Joslyn and the Council] will be reduced accordingly."

[62] His Honour then turned to the case against the Wentworth Shire Council ("the Council") ^[57] :

"Having found, on a balance of probabilities, it was the Council who erected a sign which was inadequate and misleading, and failed to erect signs which were proper, given the nature of the curve, I find, in this instance, the Council carried out that work without due care and skill for the safety of the road users. The work which Council performed was not carried out in accordance with the standard at the time ...

We are not concerned, as the [Council] argues, with standards for road construction, nor whether this road was constructed to contemporary standards. We are not dealing with some very minor back road but one in use to the extent of 200 vehicles per day ... We are dealing with the failure by Council to properly signpost and warn of the danger of a road with a compound curve ... and I find that the Council failed to do that and was thus guilty of misfeasance. The primary cause of this accident remains the conduct of [Ms Joslyn] whose approach to the curve was nothing less than reckless, for the reasons already stated. However I find the [Council] to be liable to contribute an amount of 10% to the verdict of the Plaintiff and there will be a verdict in favour of the Plaintiff and [Ms Joslyn] accordingly."

[63] The trial judge next rejected a defence of joint illegal enterprise, a matter which is not the subject of an appeal to this Court. Judgment was entered for Mr Berryman with costs against Ms Joslyn for the sum of $1,496,314.77 and against the Council for the sum of $750,000. His Honour further ordered that Ms Joslyn have credit in respect of the first judgment sum for any amount paid by Ms Joslyn pursuant to s45 of the Act.

The appeal to the Court of Appeal

[64] Mr Berryman appealed to the Court of Appeal of New South Wales on the ground that the trial judge should either have not found any contributory negligence on his part, or ought to have found it in a smaller percentage than he did. Ms Joslyn and the Council each cross-appealed against the percentage of contributory negligence attributed to Mr Berryman, the Council asserting that it should have been up to 80%, and Ms Joslyn against the apportionment of liability against her of 90%.

[65] The Court of Appeal (Priestley JA, Meagher JA and Ipp AJA) ^[58] upheld Mr Berryman's appeal by holding that he was not guilty of any contributory negligence at all. The leading judgment was given by Meagher JA with whom the other members of the Court agreed.

[66] In giving his judgment Meagher JA made no reference to the Act. His Honour's conclusions are to be found in the following passage ^[59] :

"His Honour, as I have said, made a finding of 25% contributory negligence against the plaintiff. The only action of his which could possibly have amounted to contributory negligence was permitting Miss Joslyn to drive instead of him. In this regard, one must view matters as they stood at the time of handing over control of the car, (not as they were in the previous 24 hours), a task which his Honour did not really undertake. One must also, if one concludes that at the time of handing over Mr Berryman was too drunk to appreciate what was happening, a situation as to which there is no evidence in the present case, judge the question of contributory negligence on the hypothesis that the plaintiff did have sufficient foresight to make reasonable judgments. But, although at the time of the accident the blood alcohol levels of Miss Joslyn and Mr Berryman were estimated as being 0.138g/100ml and 0.19g/100ml respectively, there is no evidence that either of them were drunk at the time, and certainly no evidence that at the time Mr Berryman had any reason to think that Miss Joslyn was affected by intoxication. Indeed, quite to the contrary. Of the people who were present who gave evidence, all said that Miss Joslyn showed no signs of intoxication. His Honour so found. Despite, therefore, one's reluctance to overrule a trial judge's finding on apportionment (Podrebersek v Australian Iron and Steel Pty Ltd ^[60] ), it seems quite impossible to justify his Honour's conclusion on contributory negligence. I would be in favour of reducing it from 25% to 0%."

[67] The Court of Appeal entered judgment, of $1,995,086.36 and $750,000 against Ms Joslyn and the Council respectively. The Council's appeal against Ms Joslyn was dismissed with costs. The Court of Appeal held that the maintenance and control of the road resided in the Council: accordingly there was no basis for a review of the trial judge's finding of negligence against the Council for failing to erect adequate signage. The Council's defence of "joint illegal activity" asserted against Mr Berryman and Ms Joslyn was again rejected.

The appeal to this Court

[68] The grants of special leave to Ms Joslyn and the Council to appeal to this Court were confined to the question whether the Court of Appeal was justified in holding that Mr Berryman was not guilty of contributory negligence.

[69] In 1988 important changes were made to the law relating to contributory negligence in New South Wales by the enactment of the Act. S74 deals as follows with contributory negligence in respect of motor accidents. Subs(1) states:

"The common law and enacted law as to contributory negligence apply to claims in respect of motor accidents, except as provided by this section."

The "enacted law" included at the time of trial s10(1) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) which introduced the principle of apportionment. Subs(2) of s74 requires that a finding of contributory negligence be made in the cases enumerated in para(a)-para(d) of that sub-section. Para(c) and para(d) deal with failures to wear seat belts and protective helmets. Para(a) requires a finding of contributory negligence:

"where the injured person or deceased person has been convicted of an offence in relation to the motor accident under [specified road transport legislation] unless the plaintiff satisfies the court that the concentration of alcohol in the person's blood or the alcohol or other drug, as the case requires, involved in the commission of the offence did not contribute in any way to the accident".

It is para(b) which speaks to the facts of the present appeals by providing:

"where:

(i)

the injured person (not being a minor) or the deceased person was, at the time of the motor accident, a voluntary passenger in or on a motor vehicle, and

(ii)

the driver's ability to drive the motor vehicle was impaired as a consequence of the consumption of alcohol or any other drug and the injured person or the deceased person was aware, or ought to have been aware, of the impairment".

This is to be read with s74(6) which states:

"A person shall not be regarded as a voluntary passenger in or on a motor vehicle for the purposes of subs(2)(b) if, in the circumstances of the case, the person could not reasonably be expected to have declined to become a passenger in or on the vehicle."

Finally, s74(8) provides:

"This sdoes not exclude any other ground on which a finding of contributory negligence may be made."

[70] The reference in s74(2)(b) to the impairment by alcohol of the ability of the driver to drive as something of which the injured person "was aware, or ought to have been aware" reflects the common law requirement that the standard of care expected of the plaintiff be measured against that of a person of ordinary prudence and not merely by reference to subjective attitudes of the particular plaintiff ^[61] . Suggestions to the contrary, apparently made by the Full Court of the Federal Court in Nominal Defendant v Saunders ^[62] were in error.

[71] S76 abolished the defence of volenti non fit injuria except with respect to motor racing.

"76 Defence of voluntary assumption of risk

(1)

Except as provided by subs(2), the defence of volenti non fit injuria is not available in proceedings for damages arising from a motor accident but, where that defence would otherwise have been available, the amount of any damages shall be reduced to such extent as is just and equitable on the presumption that the injured person or deceased person was negligent in failing to take sufficient care for his or her own safety.

(2)

If a motor accident occurs while a motor vehicle is engaged in motor racing, the defence of volenti non fit injuria is available in proceedings for damages brought in respect of the death of or injury to:

(a)

the driver of the vehicle so engaged, or

(b)

a passenger in the vehicle so engaged, other than a passenger who is less than 18 years of age or who otherwise lacked capacity to consent to be a voluntary passenger.

(3)

For the purposes of subs(2), a motor vehicle is engaged in motor racing if it is participating in an organised motor sports event or an activity that is an offence under [specified road transport legislation]."

[72] That the defence of volenti non fit injuria was abolished is not without significance. Its abolition requires, as no doubt the legislature intended, that courts focus on the question whether there has been any, and if any, how much contributory negligence.

[73] To decide the appeals without reference to the Act, in particular, the key provision, s74, as the Court of Appeal did, necessarily involved an error of law calling for the intervention of this Court. But that is not the only error of law. To have regard to the alleged absence of indicia of intoxication at the time of the relinquishment of the steering wheel by Mr Berryman to Ms Joslyn only, and as if it were conclusive of what the former knew or ought to have known of the latter's condition, was to substitute a subjective test of the reasonableness of Mr Berryman's conduct for the objective test that s74(2)(b) of the Act requires and the common law, which posited the standards of a reasonable person, formerly required in New South Wales in motor vehicle accident cases.

[74] In our opinion the Court of Appeal also manifestly erred in fact. This is therefore a case in which this Court should intervene to review the factual findings both at first instance and in the Court of Appeal.

[75] Both Mr Berryman and Ms Joslyn were undoubtedly intoxicated from at least 4am on the day of the accident until, and after the accident. Despite that evidence was given that Ms Joslyn was not in fact manifesting obvious signs of intoxication not long after the accident, it seems to us to be highly unlikely that signs would not have been there to be seen by those able to see, or not otherwise distracted by more pressing concerns. However, in view of the clearly objective test posed by s74(2)(b) of the Act, of what the injured person "ought" to have known, it is unnecessary to explore that matter any further.

[76] Of what ought Mr Berryman have been aware? Clearly he ought to have been aware of all of the matters to which we referred in outlining the facts of this case, which include, as a matter of irresistible inference, that he must have set out to become, and did become intoxicated, in company with others of a similar mind and of whom Ms Joslyn was one. What a person ought to have known is not comprehended simply by what a person knew or observed at the moment before an accident, or at the moment at which that person became a passenger in a vehicle in the charge of, or driven by an intoxicated person. A person in the position of Mr Berryman ought to have known, and in fact would have known (if he had not precluded himself from knowing by his own conduct) that Ms Joslyn's capacity must have been impaired, and probably grossly so, by the amount of alcohol she had drunk, not only during the immediately preceding evening, but also on the night before that. Furthermore Mr Berryman either knew, or ought to have known that the effects of two consecutive evenings of immoderate consumption would have had a compounding effect of tiredness and reduced attentiveness upon both of them.

[77] The Court of Appeal erred in failing to have regard to, and to apply s74 of the Act. It further erred in looking to Ms Joslyn's condition as it momentarily appeared to others after the accident. The Court of Appeal should have had regard to the events in which the passenger and the driver had participated over the preceding 36 or so hours before the accident.

[78] Factually the Court of Appeal erred in not finding that Mr Berryman's and Ms Joslyn's faculties, and accordingly their capacities to observe, react, assimilate, and deal with information and to drive a motor vehicle must have been seriously impaired by the consumption of alcohol.

[79] The appeals to this Court by Ms Joslyn and the Council have been heard together. The appeals should be allowed with costs. O1, O2 and O3 made by the Court of Appeal on 11 April 2001 should be set aside. Each matter should be remitted to the Court of Appeal to deal with the issues not so far dealt with as well as Ms Joslyn's appeal respecting the assessment of only 25% contributory negligence against Mr Berryman.