Joslyn v Berryman; Wentworth Shire Council v Berryman

[2003] HCA 34

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(Decision by: Mchugh J)

Joslyn
vBerryman; Wentworth Shire Council v Berryman

Court:

Judges:
Mchugh JGummow J
Kirby 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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Decision by:
Mchugh J

[1] When Sally Inch Joslyn noticed that the first respondent, Allan Troy Berryman, was falling asleep at the wheel of the vehicle in which they were travelling, she insisted that she drive the vehicle. Shortly after Ms Joslyn commenced to drive, the vehicle overturned causing injury to Mr Berryman. The accident occurred at about 8.45am. The driving capacity of both parties was affected by their intoxication. They had been drinking at a party until about 4.00am. The vehicle also had a propensity to roll over, and its speedometer was broken. S74(2) of the Motor Accidents Act 1988 (NSW) requires a finding of contributory negligence if an injured person was a voluntary passenger in a motor vehicle and "was aware, or ought to have been aware" that the driver's ability to drive was impaired by alcohol. S74(6) of the Act declares that a person "shall not be regarded as a voluntary passenger ... 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." However, s74 does not otherwise affect the common law rules of contributory negligence.

[2] The issues in these appeals are:

•

whether Mr Berryman was guilty of contributory negligence at common law;

•

whether, within the meaning of s74(6), Mr Berryman was a "voluntary passenger" in the vehicle;

•

whether, in determining for the purposes of s74(2) that a passenger was or ought to have been aware that the driver's ability was impaired by alcohol, regard can be had to facts and circumstances occurring before the passenger entered the vehicle;

•

whether Mr Berryman was aware, or ought to have been aware, that Ms Joslyn was incapacitated by reason of her intoxication.

[3] In my opinion, Mr Berryman was guilty of contributory negligence at common law and by reason of the direction in s74 independently of the common law. He was guilty of contributory negligence at common law because a reasonable person in his position would have known that Ms Joslyn was affected by alcohol by reason of her drinking during the previous 12 hours, that the vehicle was defective and that, by becoming a passenger, he was exposing himself to the risk of injury. He was guilty of contributory negligence by reason of the direction in s74 because he was a voluntary passenger and ought to have been aware that Ms Joslyn's ability to drive was impaired by alcohol.

Statement of the case

[4] Allan Troy Berryman suffered severe injuries when a utility motor vehicle in which he was a passenger, but which he owned, left the road and overturned on a country road in New South Wales. He sued the driver, Sally Inch Joslyn, and the Wentworth Shire Council for damages in the District Court of New South Wales, claiming that Ms Joslyn had driven negligently and that the Council was negligent in failing to provide proper warning signs ^[1] . The action was heard by Boyd-Boland ADCJ. His Honour found Ms Joslyn guilty of negligence. He also found that the Council was guilty of negligence in not erecting a sign that adequately warned of the danger of the curve where the accident occurred. He held Ms Joslyn 90% and the Council 10% responsible for the accident. However, his Honour reduced the damages by 25% because of the contributory negligence of Mr Berryman in allowing Ms Joslyn to drive when he ought to have been aware that she was unfit to drive.

[5] Mr Berryman appealed to the Court of Appeal of New South Wales contending that the trial judge erred in finding that he was guilty of contributory negligence. Alternatively, he contended that the trial judge should have found a smaller percentage of contributory negligence. Ms Joslyn and the Council cross-appealed against the percentage of contributory negligence attributed to Mr Berryman. They contended that the trial judge should have made a finding of up to 80% contributory negligence. The Court of Appeal (Priestley JA, Meagher JA and Ipp AJA) allowed Mr Berryman's appeal, holding that he was not guilty of contributory negligence ^[2] .

[6] This Court gave special leave to Ms Joslyn and the Council to appeal against the judgment of the Court of Appeal.

The material facts

[7] The accident occurred at about 8.45am on a Sunday. Shortly before the accident Mr Berryman had been driving the vehicle. Ms Joslyn noticed that he was dozing off. She must have remonstrated with him for doing so because he said to her, "well, you drive the car then." She then took over the driving. Ms Joslyn did not have a driver's licence, having lost her licence after being convicted for driving while under the influence of intoxicating liquor. Mr Berryman knew that she had lost her licence and, according to Ms Joslyn, she had told him that she had not driven for over three years. However, the Court of Appeal appears to have accepted that he was unaware that she had not driven for three years.

[8] After driving about one kilometre, Ms Joslyn lost control of the vehicle while driving around a sharp corner. The vehicle overturned. As a result, Mr Berryman suffered serious injuries. The vehicle had a propensity to roll - having overturned on two previous occasions. Ms Joslyn did not know what speed she was travelling when the accident occurred because the speedometer of the vehicle did not work. The trial judge found that it was broken.

[9] On the previous night, Mr Berryman had gone to a party at a property near Dareton, a town in south-western New South Wales. He arrived at the party at about 9.00pm. With a short interruption, he drank alcohol until about 4.00am, when he went to sleep on the front seat of his utility. He had no further alcohol that morning. A sample of blood taken on the Sunday morning indicated that at about 8.45am he probably had a blood alcohol level of .19g/100ml. Ms Joslyn had also been a guest at the party. During the evening, she also consumed a large amount of alcohol. At about 4.30am, she was seen to be "quite drunk and staggering about". Eventually, she went to sleep on the ground beside Mr Berryman's vehicle.

[10] Later that Sunday morning, Ms Joslyn and Mr Berryman decided to drive to Mildura to have breakfast, a journey that took about 20 minutes. She had had no more than three hours sleep (and may have had only two hours sleep) before embarking on the journey which resulted in Mr Berryman's injuries. She had no further alcohol that morning. A sample of blood taken from her indicated that at about 8.45am she probably had a blood alcohol level of .138g/100ml. After Ms Joslyn and Mr Berryman had eaten, they commenced to drive back to Dareton. Mr Berryman drove until shortly before the accident.

[11] Upon these facts, Boyd-Boland ADCJ said that, having decided to stay overnight, Mr Berryman "should have contemplated his vehicle might be driven by [Ms] Joslyn". His Honour also said that Mr Berryman had had no regard to the consequences of his own alcohol consumption, and that he had allowed Ms Joslyn to drive despite his knowledge of her alcohol consumption. His Honour found that, at the time Mr Berryman allowed Ms Joslyn to drive, he was capable of taking her condition into account. His Honour also said that Mr Berryman "ought also to have realised the lack of experience and qualifications of [Ms] Joslyn particularly given his knowledge of the propensity of his vehicle to roll over."

[12] The Court of Appeal held that the relevant facts were confined to those that Mr Berryman observed, or ought to have observed, when Ms Joslyn took over the driving. Meagher JA said "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." ^[3] Meagher JA went on to say "there is no evidence that either [Mr Berryman or Ms Joslyn] were drunk at the time, and certainly no evidence that at the time Mr Berryman had any reason to think that [Ms] Joslyn was affected by intoxication." ^[4]

S74

[13] S74(2) directed the trial judge to find Mr Berryman guilty of contributory negligence if he "was aware, or ought to have been aware" that Ms Joslyn's ability to drive the utility "was impaired as a consequence of the consumption of alcohol". Neither in the Court of Appeal nor at the trial was any issue raised as to whether s74 applied to the facts of the case. Nor was any issue raised as to whether Mr Berryman was "a voluntary passenger in or on a motor vehicle" within the meaning of s74(6) of the Act. However, upon the facts of the case, these issues are squarely raised. Even if Mr Berryman was not guilty of contributory negligence at common law, s74 might require a finding that he be deemed guilty of contributory negligence. Accordingly, this Court cannot avoid dealing with the issue, an issue that is squarely raised by the law that governs the case ^[5] .

[14] Apparently treating the case as one turning on common law principles, the Court of Appeal held that Mr Berryman was not guilty of contributory negligence. As I have indicated, the learned judges did so because they thought that Mr Berryman was not aware that Ms Joslyn's ability to drive the vehicle was impaired at the time that he became a passenger. They evidently took the view that, at least in a case like the present, the contributory negligence of a plaintiff has to be evaluated by reference to what the plaintiff knew or could have observed when he or she became a passenger. As will appear, I do not think that the common law test is so limited. But s74(2) directs the court to determine whether the passenger ought to have been aware of the driver's impairment. This introduces an objective test. So the fact that Mr Berryman was unaware of Ms Joslyn's impaired ability to drive, does not necessarily prevent a finding that he was guilty of contributory negligence under s74. However, it is convenient to deal first with the issue of contributory negligence at common law.

The common law rules of contributory negligence

[15] The Court of Appeal erred in confining the facts and circumstances relevant to contributory negligence to those observed or observable by Mr Berryman when he became a passenger. Although judges and juries have often taken a benign view of conduct alleged to constitute contributory negligence and some decisions concerned with intoxication support the reasoning of the Court of Appeal, the basic principles of the law relating to contributory negligence show that the relevant facts and circumstances were not as confined as that Court held.

[16] At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which the plaintiff was exposed ^[6] . In principle, any fact or circumstance is relevant in determining contributory negligence if it proves, or assists in proving, a reasonably foreseeable risk of injury to the plaintiff in engaging in the conduct that gave rise to the injury suffered. For historical reasons associated with the consequences of a finding of contributory negligence, judges and juries in earlier times took a lenient view of what facts constituted contributory negligence. And some modern cases concerned with passengers accepting a lift from intoxicated drivers have also taken a lenient view of the passengers' conduct. But in principle, any fact or circumstance which a reasonable person would know or ought to know and which tends to suggest a foreseeable risk of injury in accepting a lift from an intoxicated driver, is relevant in determining whether the passenger was guilty of contributory negligence in accepting the lift.

[17] Until the middle of the 20th century, the contributory negligence of a plaintiff was a defence to an action for negligence, even if the negligence of the defendant far outweighed the contributory negligence of the plaintiff. No one with experience of common law jury trials could fail to believe that juries often - perhaps usually - avoided the harshness of the rule by taking a benign view of the plaintiff's conduct. On some occasions, juries even appeared to compromise by reducing the plaintiff's damages to accord roughly with his or her responsibility for the damage suffered.

[18] Eventually, judges also came to dislike the harshness of the contributory negligence rule. They weakened it by holding that the onus was on the defendant to prove contributory negligence, even though historically contributory negligence was said ^[7] to negative the causal connection between the defendant's negligence and the plaintiff's damage. If that was so, the onus should have been on the plaintiff to negative the plea. The common law judges further weakened the harshness of the rule by inventing the "last opportunity" rule ^[8] . In employment cases, they went so far as to effectively obliterate the efficacy of the rule. They did so by holding that regard had to be had "to the long hours and the fatigue, to the slackening of attention which naturally comes from constant repetition of the same operation, to the noise and confusion in which the man works, to his pre-occupation in what he is actually doing at the cost perhaps of some inattention to his own safety." ^[9] For a time, this Court even held ^[10] that contributory negligence was not a defence to an action for breach of statutory duty. Ultimately, however, it felt compelled ^[11] to follow a House of Lords decision ^[12] to the opposite effect.

[19] In the case of a passenger who accepted a lift from an intoxicated driver, Australian courts showed a marked reluctance to use contributory negligence as the ground upon which the law might or ought to deny a right of action to the passenger. But this reluctance does not seem to have been the product of any sympathy for the passenger. Australian courts recognised that contributory negligence was an appropriate and available category for characterising the passenger's conduct. But generally they preferred to hold either that the driver had not breached any duty of care owed to the passenger or, more often, that the passenger had voluntarily accepted the risk of suffering the relevant harm. Perhaps the Australian courts thought that, if contributory negligence was the ground for denying liability, juries would take a benign view of the conduct of unmeritorious passengers and hold that the passenger's conduct in accepting a lift with an intoxicated driver was not unreasonable.

[20] Preferring no breach of duty as the mechanism for determining liability enabled the courts to control the issue - whether there was any evidence of breach of duty being a question for the judge and not for the jury. Moreover, the passenger had the onus of proving breach. The other preferred alternative was to characterise the conduct of the passenger as the voluntary assumption of the risk of harm (volenti non fit injuria). That was a jury issue. It therefore gave the court less control of the issue, and the onus was on the defendant to establish the defence. But the defence of volenti non fit injuria meant that the plaintiff would invariably fail once it was established that he or she knew of the driver's intoxication. In that respect, it had considerable advantages over contributory negligence in controlling the claims of the passenger who, together with the driver, had embarked on a drinking spree and then accepted a lift from the driver.

[21] The reluctance of Australian courts to use contributory negligence as the ground of disentitlement was surprising having regard to the comments of the editor of the Law Quarterly Review concerning such cases and the United States jurisprudence. In Dann v Hamilton ^[13] , Asquith J had held that the defence of volenti non fit injuria did not apply to a passenger who knowingly accepted a lift from an intoxicated driver. In Dann, the driver "was under the influence of drink to such an extent as substantially to increase the chances of a collision arising from his negligence" ^[14] . Despite this finding, Asquith J rejected the plea of volenti. His Lordship appears to have taken it for granted that the driver owed a duty of care and that it had been breached. Curiously, contributory negligence was not pleaded as a defence. Dann was powerfully criticised ^[15] by Dr A L Goodhart, the editor of the Law Quarterly Review, who argued "that judgment should have been entered for the defendant on the ground that the plaintiff was guilty of contributory negligence." Neither Asquith J nor Dr Goodhart appeared to think that no breach of duty was the appropriate ground for denying liability. United States jurisprudence also held that a passenger, like the plaintiff in Dann, was disentitled to sue because his or her conduct constituted contributory negligence ^[16] .

[22] Some years before Dann was decided, the issue arose for decision in the Full Court of the Supreme Court of New South Wales. In Finnie v Carroll ^[17] , the Full Court held that the trial judge had erred in refusing to direct the jury that the plaintiff could not recover if the jurors concluded that the driver's intoxication caused the collision and the plaintiff knew of that condition ^[18] . Gordon J, who gave the judgment of the Court, said ^[19] that the defendant's immunity did not arise from the application of the maxim volenti non fit injuria. It arose "because there was no breach of any duty A owed to B to protect him from that danger of which he was fully aware when he accepted the invitation." As in Dann, the issue of contributory negligence appears to have been regarded as irrelevant.

[23] Another 20 years elapsed before the issue came before this Court for the first time in The Insurance Commissioner v Joyce ^[20] (Latham CJ, Rich and Dixon JJ). Latham CJ and Dixon J both held that the passenger's entitlement to sue could be defeated on any one of three grounds: no breach of duty, volenti non fit injuria and contributory negligence. Latham CJ held that the passenger's claim failed because of contributory negligence and the voluntary acceptance of an obvious risk ^[21] . Rich J held that the plea of volenti non fit injuria had been made out ^[22] . Dixon J preferred to decide the case on the basis that a passenger who "knowingly accepts the voluntary services of a driver affected by drink ... cannot complain of improper driving caused by his condition, because it involves no breach of duty." ^[23]

[24] However, Latham CJ and Dixon J disagreed as to the conditions that gave rise to the various defences. Latham CJ said ^[24] that, if the passenger was sober enough to know and understand the danger of driving with the defendant in a drunken condition, he was guilty of contributory negligence and had also voluntarily assumed an obvious risk. But his Honour also said that, if the passenger was not sober enough to know and understand the danger, he had disabled himself from avoiding the consequences of the negligent driving and was guilty of contributory negligence. In contrast, Dixon J said ^[25] that "for the plaintiff, who was not driving the car, to drink until he was too stupid to observe the defendant's condition can hardly be considered contributory negligence of which the accident was a reasonable or natural consequence." His Honour also held ^[26] that the pleas of no breach of duty and volenti non fit injuria both required "some degree of actual knowledge on the part of the passenger of the alcoholic conditions he is accepting." Dixon J would have dismissed the defendant's appeal on the ground that the defendant had not established any of the three grounds of disentitlement. On this issue, Dixon J was clearly right and Latham CJ and Rich J wrong. Both Latham CJ and Rich J overlooked that the onus was on the defendant to prove the defences of volenti and contributory negligence and that on the evidence it was not possible to say whether those defences were made out. But as I later indicate, I disagree with the analysis by Dixon J of the defence of contributory negligence in the case of an intoxicated passenger.

[25] The issue of the appropriate ground of disentitlement again came before the Court in Roggenkamp v Bennett ^[27] where the trial judge had held that the plaintiff, having accepted a lift with an intoxicated driver, had failed to establish a breach of the duty owed to him. Like the trial judge, Webb J held that the defendant had not breached the duty of care that he owed to the passenger. However, McTiernan and Williams JJ dismissed the plaintiff's appeal on the ground that the defence of volenti non fit injuria had been established.

[26] In Jansons v The Public Curator of Queensland ^[28] , Lucas J also held that the plaintiff's claim failed because the defendant had proved that the plaintiff had voluntarily assumed the risk of injury as the result of the driver's intoxication. And in Jeffries v Fisher ^[29] , the Full Court of the Supreme Court of Western Australia upheld the trial judge's finding that the plaintiff had voluntarily assumed the risk of suffering the harm sustained. But these four cases were the high water mark of the defence of volenti in cases where the driver was intoxicated. Since then the defence has failed in numerous cases - invariably on the ground that the passenger failed to appreciate the risk of harm or did not intend to take the risk ^[30] .

[27] It is difficult to escape the conclusion that the introduction of apportionment legislation has influenced the courts in characterising the conduct of the passenger as contributory negligence, rather than as a voluntary assumption of risk or as a determinant of the standard of care owed by the driver to the passenger. Apportionment legislation enables the court to apportion responsibility for the plaintiff's damages according to the respective responsibility of the plaintiff and the defendant for that damage ^[31] . Since the introduction of apportionment legislation, contributory negligence has been the preferred characterisation of the conduct of the plaintiff who accepts a lift from a driver known to be intoxicated.

[28] In New South Wales ^[32] and in South Australia ^[33] , the legislature has even intervened to abolish the defence of volenti non fit injuria in motor accident cases. Instead, legislation ^[34] makes knowledge of the driver's intoxication a matter of contributory negligence and apportionment. But the defence of volenti is still available - at least theoretically - in other States and Territories.

[29] What then of the issue of no breach of duty in cases where the passenger knows that the driver's ability is impaired by alcohol and suffers injury as the result of that impairment? Has it survived the judicial and legislative demise of the doctrine of volenti? While the reasoning of this Court in Cook v Cook ^[35] and Gala v Preston ^[36] stands, the answer must be: "Yes". The plea of no breach of duty - perhaps even a plea of no duty in an extreme case - is still open in the case of a passenger who accepts a lift with a driver known to the passenger to be seriously intoxicated. In Cook and Gala, this Court applied the now rejected doctrine of proximity to hold that in exceptional cases the content of the duty of care owed by a driver to a passenger varies in proportion to the passenger's knowledge of the driver's capacity to drive. In Cook, the Court held ^[37] that, where the passenger has invited an inexperienced and unlicensed driver to drive, the standard of care "is that which is reasonably to be expected of an unqualified and inexperienced driver in the circumstances in which [the driver] is placed." In so holding, the majority judgment relied on the no breach of duty statements contained in the judgments of Latham CJ and Dixon J in Joyce and the judgment of Webb J in Roggenkamp. In Gala, Mason CJ, Deane and Gaudron JJ and I held that no relevant duty of care was owed by a driver to a passenger in respect of the driving of a stolen car in circumstances where both parties had consumed large quantities of alcohol. We said ^[38] :

"[E]ach of the parties to the enterprise must be taken to have appreciated that he would be encountering serious risks in travelling in the stolen vehicle when it was being driven by persons who had been drinking heavily and when it could well be the subject of a report to the police leading possibly to their pursuit and/or their arrest. In the special and exceptional circumstances that prevailed, the participants could not have had any reasonable basis for expecting that a driver of the vehicle would drive it according to ordinary standards of competence and care."

[30] Now that this Court has rejected the doctrine of proximity, it may be that it would no longer follow the reasoning in Cook and Gala. Moreover, the notion of a standard of care that fluctuates with the sobriety of the driver is one that tribunals of fact must have great difficulty in applying. While Cook and Gala stand, however, they are authorities for the proposition that, in special and exceptional circumstances, it would be unreasonable to fix the standard of care owed by the driver by reference to the ordinary standard of care owed by a driver to a passenger ^[39] . In some cases, knowledge by a passenger that the driver's ability to drive is impaired by alcohol may transform the relationship between them into such a category.

[31] It is unnecessary in this case to say any more about the authority of Cook and Gala. Neither in this Court nor in the courts below has Ms Joslyn suggested that she did not breach the duty of care owed to Mr Berryman.

Intoxication and contributory negligence

[32] The test of contributory negligence is an objective one. Contributory negligence, like negligence, "eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question." ^[40] One exception to that rule is that, in considering whether a child is guilty of contributory negligence, the standard of care is tailored to the age of the child ^[41] . It may be the law that, in the case of an aged plaintiff, the standard of care is also tailored to the age of the plaintiff. In Daly v Liverpool Corporation ^[42] , Stable J thought so, saying:

"I cannot believe that the law is quite so absurd as to say that, if a pedestrian happens to be old and slow and a little stupid, and does not possess the skill of the hypothetical pedestrian, he or she can only walk about his or her native country at his or her own risk. One must take people as one finds them. There is no hypothetical standard of care. We must all do our reasonable best when we are walking about."

[33] This statement suggests that the physical and mental deficits of each plaintiff must be taken into account in determining whether that person was guilty of contributory negligence. Support for such a proposition can be found in the judgment of Jordan CJ in Cotton v Commissioner for Road Transport and Tramways ^[43] where his Honour said:

"It is conceived that contributory negligence in the sense in which it is now being considered occurs only when a person fails to take all such reasonable care as he is in fact capable of. I am not aware of any case in which a person has been held to be guilty of contributory negligence through the application of some arbitrary general standard, notwithstanding that he had been as careful as he could."

[34] In McHale v Watson ^[44] , Kitto J held, correctly in my opinion, that this statement of Jordan CJ does not represent the law. Kitto J said ^[45] that "[i]n so far as his Honour's observations suggest a subjective standard for contributory negligence they ought not, I think, to be accepted." The statement of Jordan CJ, like that of Stable J in Daly, is inconsistent with the established rule that "[i]n theory, a plaintiff is required to conform to the same standard of care as a defendant, with due allowance for the fact that here the enquiry is directed to what is reasonable for his own safety rather than the safety of others." ^[46] No one would now suggest that the standard of care expected of a defendant is that which the defendant "is in fact capable of." To introduce such a standard into the law of contributory negligence would not only contradict the objective test of contributory negligence, it would impose on tribunals of fact the almost insuperable task of determining what standard of care the plaintiff was "in fact capable of."

[35] Ever since Lynch v Nurdin ^[47] , common law courts have accepted that, in determining whether a child is guilty of contributory negligence, the relevant standard of care is that to be expected of an ordinary child of the same age. But otherwise the plaintiff is held to the standard of care expected of an ordinary reasonable person engaging in the conduct that caused the plaintiff's injury or damage. No exception should or could in principle be made in the case of the passenger accepting a lift from an intoxicated driver.

[36] It is true that the reasoning in some decisions ^[48] concerned with a passenger accepting a lift with an intoxicated driver appears to suggest that this class of case, like those concerned with children, is another exception to the general rule that the test for contributory negligence is an objective test. But, in principle, intoxicated drivers cannot be an exception to the general rule. Cases like Banovic v Perkovic ^[49] , Nominal Defendant v Saunders ^[50] and McPherson v Whitfield ^[51] cannot be followed in so far as they hold or suggest that a passenger is guilty of contributory negligence in accepting a lift from an intoxicated driver only if the passenger knew, or was aware of signs indicating, that the driver was intoxicated. In my view, the law on this subject was correctly stated by Cooper J in Morton v Knight ^[52] and by Clarke JA in McGuire v Government Insurance Office (NSW) ^[53] .

[37] The issue in a case like the present is not whether the passenger ought reasonably to have known of the driver's intoxication from the facts and circumstances known to the passenger. The relevant facts and circumstances include those which a reasonable person could have known by observation, inquiry or otherwise. In cases of contributory negligence outside the field of intoxicated passengers and drivers, the courts take into account as a matter of course those facts and circumstances that the plaintiff could have discovered by the exercise of reasonable care ^[54] . In Morton, Cooper J relied, correctly in my opinion, on the reasoning in the judgments of this Court in O'Neill v Chisholm ^[55] and held that the relevant facts and circumstances included those which a reasonable person would have ascertained. The test applied by all members of the Court in O'Neill, including Walsh and Gibbs JJ who found no contributory negligence, was whether the passenger ought to have realised that alcohol had impaired the driver's capacity to drive.

[38] Hence, the issue is not whether a reasonable person in the intoxicated passenger's condition - if there could be such a person - would realise the risk of injury in accepting the lift. It is whether an ordinary reasonable person - a sober person - would have foreseen that accepting a lift from the intoxicated driver was exposing him or her to a risk of injury by reason of the driver's intoxication. If a reasonable person would know that he or she was exposed to a risk of injury in accepting a lift from an intoxicated driver, an intoxicated passenger who is sober enough to enter the car voluntarily is guilty of contributory negligence. The relevant conduct is accepting a lift from a person whose driving capacity is known, or could reasonably be found, to be impaired by reason of intoxication.

[39] In other areas of contributory negligence, a plaintiff cannot escape a finding of contributory negligence by pleading ignorance of facts that a reasonable person would have known or ascertained. A pedestrian or driver who enters a railway crossing in the face of an oncoming train cannot escape a finding of contributory negligence because he or she was not, but should have been, aware of the train. Nor does it make any difference that the pedestrian or driver had defective hearing or sight. Contributory negligence is independent of "the idiosyncrasies of the particular person whose conduct is in question." ^[56] Similarly, the fact that the passenger's intoxicated condition prevents him or her from perceiving the risks attendant on driving with an intoxicated driver does not absolve the passenger from complying with the standard of care required of an ordinary reasonable person. If an intoxicated pedestrian falls down a manhole that a sober person would have seen and avoided, it seems impossible to hold that the pedestrian was not guilty of contributory negligence because the pedestrian's condition prevented him or her from seeing the danger. At all events, it seems impossible to so hold without introducing a subjective standard into this area of law. And I can see no reason in principle or policy for distinguishing between the intoxicated pedestrian and the intoxicated passenger.

Mr Berryman was guilty of contributory negligence at common law

[40] Once it is accepted that the relevant circumstances were not confined to what Mr Berryman perceived or should have perceived when he became a passenger in his vehicle, a finding of common law contributory negligence on his part is inevitable. The relevant facts which an ordinary reasonable person would know or would infer point overwhelmingly to Mr Berryman's lack of care for his safety in becoming a passenger. First, Ms Joslyn had lost her driver's licence and probably had not driven for some time. Second, she was insisting on driving a vehicle whose speedometer did not work and which had a tendency to roll over and she had had no experience of driving the vehicle. Third, Ms Joslyn had been drinking for about the same length of time as Mr Berryman who was unfit to drive. Fourth, the amount of alcohol consumed by Ms Joslyn, the time that had elapsed since she stopped drinking and her lack of sleep confirmed that she also was probably unfit to drive. Mr Berryman's inability to keep awake and his agreement to stop driving increased the probability that her drinking and lack of sleep made her unfit to drive.

[41] Upon these facts, a reasonable person would have foreseen that, as a passenger in a car driven by Ms Joslyn, he or she was exposed to a risk of serious injury as the result of the defective nature of the vehicle, her drinking, her lack of sleep, her probable lack of recent driving experience and her lack of experience of driving this defective vehicle. Moreover, there was no reason why the hypothetical ordinary person, as the owner of the vehicle, could not have parked it by the side of the road until he or Ms Joslyn was capable of driving. In those circumstances, the learned trial judge was correct in finding Mr Berryman guilty of contributory negligence at common law.

Voluntary passenger

[42] I now return to the issue whether Mr Berryman was guilty of contributory negligence under s74 of the Act. That depends in the first place on whether Mr Berryman was a voluntary passenger in the motor vehicle. In my opinion, he was. Under s74(6), he was a voluntary passenger unless he "could not reasonably be expected to have declined to become a passenger" in the vehicle. A number of factors indicate that it was reasonable for him to have declined to become a passenger in his own vehicle. First, he knew Ms Joslyn did not have a licence and that she had been drinking for about the same length of time as he had. Second, given his own blood alcohol level, his inability to keep awake and his agreement to stop driving, I infer that he knew that his capacity for driving was affected by the alcohol that he had consumed. Third, because that is so, he either knew or ought to have known that the driving ability of Ms Joslyn was also likely to be affected by the liquor that she had consumed. Fourth, there was no reason why he could not have parked his vehicle by the side of the road until he or Ms Joslyn was capable of driving. In those circumstances, he has failed to establish that he could not reasonably be expected to have declined to become a passenger in his vehicle.

Contributory negligence under s74 of the Act

[43] Under s74(2) of the Act, Mr Berryman was guilty of contributory negligence if he "was aware, or ought to have been aware" that the driver's ability to drive was impaired by alcohol. The question posed by s74 is a narrower one than that posed by the common law. Under the common law, the defective nature of the vehicle and Ms Joslyn's lack of experience with that vehicle were factors that, combined with her alcohol consumption, made an overwhelming case of contributory negligence. In combination, they pointed to a reasonably foreseeable risk of injury to a person accepting a lift from her. The statutory test is not concerned with foreseeability of risk. It poses the simple question whether Mr Berryman knew or ought to have known that Ms Joslyn's driving ability was impaired by the alcohol that she had consumed.

[44] The use of the term "ought" in s74(2) suggests a test of objective reasonableness. Accordingly, the question posed by this limb of s74(2) is, would a reasonable person have known that intoxication impaired Ms Joslyn's ability to drive? S74(2) is silent, however, as to the circumstances that the reasonable person may take into account in determining that question. Are they confined to the circumstances known to the passenger? Do they include circumstances that the passenger ought to have known? Are they confined to circumstances that exist at the time that the driver commences to drive the passenger?

[45] Counsel for Mr Berryman contended that at common law - he did not deal with the question under s74(2) - "a driver must be exhibiting obvious signs of intoxication before a finding of contributory negligence can be made in these circumstances." If that was so, the relevant circumstances under s74 are confined to those that demonstrate "obvious signs of intoxication". But, as I have pointed out, at common law the circumstances were not so limited, and there is no reason to give the "ought to have known" limb of s74(2) a more restricted scope than exists at common law.

[46] The trial judge found that Ms Joslyn was not showing objective signs of intoxication shortly after the accident. He inferred that she was not showing these signs when she took over driving. Given this finding, it is difficult to conclude that Mr Berryman knew, when he became a passenger, that her driving ability was impaired. Indeed, his agreement to give up driving and to allow her to drive suggests that he thought that she was competent to drive. At all events, it suggests that he believed that she was in better condition than he was to drive. But, accepting that he was not aware that her driving condition was impaired, he "ought to have been aware" that it was.

[47] In determining whether he "ought to have been aware", the relevant facts and circumstances must include all those facts and circumstances occurring in the previous 12 hours of which he was, or ought to have been, aware. They included the fact that Ms Joslyn had been drinking heavily until at least 4.00am when Mr Berryman left the party. When he went to bed at about 4.00am, "the people who were still at the party were all staggering drunk". Those people included Ms Joslyn, although Mr Berryman said in evidence that he could not recall what condition she was in.

[48] Given the fact that Ms Joslyn was certainly "staggering drunk" at 4.00am and the accident occurred about 8.45am, I think that Mr Berryman ought to have been aware that Ms Joslyn's driving ability was impaired. She must have been very intoxicated at 4.00am. At about 4.30am, she was seen to be "quite drunk and staggering about". A sample of blood taken from her indicated that at about 8.45am, she probably had a blood alcohol level of .138g/100ml. Mr Berryman was neither aware, nor ought he have been aware, of this fact. But that Ms Joslyn should have such a high reading, nearly five hours after Mr Berryman left the party, shows how intoxicated she must have been at 4.00am. A reasonable person in Mr Berryman's position would have been aware that she was probably still affected by alcohol when he became a passenger in the vehicle. Add to this, that Mr Berryman's driving ability was impaired by reason of the alcohol that he had consumed, and it is an almost necessary conclusion that he ought to have been aware of a similar impairment in Ms Joslyn's driving ability.

[49] In my opinion, Mr Berryman was guilty of contributory negligence for the purposes of s74 of the Act.

Order

[50] The appeals of Ms Joslyn and the Council should be allowed with costs. The judgment of the Court of Appeal of the Supreme Court of New South Wales in each case should be set aside. The proceedings in each matter should be remitted to the Court of Appeal for the hearing and determination of each appeal and cross-appeal to that Court in accordance with the reasons of this Court.