Joslyn v Berryman; Wentworth Shire Council v Berryman

[2003] HCA 34

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(Judgment by: Kirby J)

Joslyn
vBerryman; Wentworth Shire Council v Berryman

Court:

Judges: Mchugh J
Gummow J

Kirby JHayne 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:
Kirby J

[80] These appeals come from a judgment of the New South Wales Court of Appeal ^[63] . They concern a defence of contributory negligence in personal injuries claims brought by the common first respondent (Mr Allan Berryman). He suffered very serious injuries as a result of a motor vehicle accident that happened on 27 October 1996. His injuries occurred when he was travelling as a passenger in his motor vehicle driven by the appellant in the first appeal (Ms Sally Joslyn). That vehicle overturned in the course of negotiating a bend in a road for which, it was found, there had been inadequate warning signage provided by the appellant in the other appeals, the Wentworth Shire Council ("the Council"). In her filed defence, Ms Joslyn admitted a breach of the duty of care that she owed to Mr Berryman.

[81] The primary judge (Boyd-Boland ADCJ), sitting without a jury in the District Court of New South Wales, found negligence on the part of Ms Joslyn. He also found negligence in the Council. The primary judge entered judgment against the appellants in favour of Mr Berryman in a sum totalling more than $2 million. He found that Ms Joslyn was liable to contribute 90% towards Mr Berryman's damages and the Council 10%. He upheld each appellant's defence of contributory negligence. Ordinarily, he said, he would have reduced Mr Berryman's damages by a third ^[64] . However, he ultimately found it appropriate to "reduce the ... verdict by virtue of [Mr Berryman's] contributory negligence by 25%" ^[65] .

[82] On appeal to the Court of Appeal, the finding of the primary judge that the defence of contributory negligence had been established by the appellants was reversed ^[66] . Many other issues were canvassed. However, special leave to appeal to this Court was confined to "the contributory negligence issue". During argument before this Court that issue was further limited to whether an error had been made in the decision of the Court of Appeal that the defence of contributory negligence had not been established. Although there have been cases in which this Court has reassessed contributory negligence for itself ^[67] , in the present appeals this Court made it plain that any reassessment would have to be performed by the Court of Appeal, a course necessitated by the issues on the record.

[83] In the Court of Appeal, Ms Joslyn and the Council had challenged the primary judge's assessment of contributory negligence. Ms Joslyn had urged that a much greater deduction (of up to 80%) was required. So far, her challenge to the quantification of the deduction for contributory negligence has not been answered. Nor has Mr Berryman had consideration of his alternative argument that, contributory negligence being assumed, the apportionment of 25% should be reduced. Those issues fell away when the Court of Appeal concluded that the evidence did not warrant the conclusion that contributory negligence had been established.

[84] Because of the broadly expressed criteria for the adjustment of awards of damages for contributory negligence, it is comparatively rare for appellate courts to interfere in the assessment of a trial judge on that issue ^[68] . However, these appeals enlist this Court's attention because they concern an instance of alleged contributory negligence where the injured person was a passenger in a motor vehicle who was affected by the consumption of alcohol at the time of his journey ^[69] . The appeals present a question as to the approach that should be taken to the assessment of the deduction for contributory negligence where a person in a motor accident, not actually responsible for driving the vehicle causing the accident, is nonetheless said to be liable to lose part of the damages otherwise recoverable as the consequence of "fault" on that person's part. Specifically, a question is presented as to the relevance of the passenger's intoxication for the decisions made by that person where it appears that such intoxication may have diminished, or removed, the passenger's capacity to make rational and self-protective decisions regarding his or her safety. Of special relevance to the resolution of these questions in the present appeals is the application to one of them of legislation enacted to govern contributory negligence decisions in respect of motor accidents involving claims by passengers who are intoxicated when injured in such accidents.

The background facts

[85] The factual background is described in the reasons of Gummow and Callinan JJ ("the joint reasons") ^[70] . If the lens of the facts is widened so as to take into account the entire course of the conduct of Mr Berryman and Ms Joslyn, from the moment they respectively arrived at the property of Mr and Mrs Crisp until the moment Mr Berryman was injured, a different response might follow from that which results from narrowing the lens to focus exclusively on the events immediately before the accident happened.

[86] The broader focus might commence with the fact that on Friday 25 October 1996, two days before the accident, Mr Berryman and some friends commenced consuming alcoholic drinks and continued to do so until the Sunday morning, a few hours before Mr Berryman was injured. The occasion for this sustained course of alcohol consumption was the approaching 21st birthday of a friend, Mr Rowan Crisp ^[71] . It was for that purpose that Mr Berryman, Ms Joslyn and others had gathered at the Crisp home.

[87] There is no doubt that, objectively, at the time of the accident, all of the named actors were affected by the alcohol they had consumed. Evidence, accepted by the primary judge, demonstrated this clearly. A sample of blood taken from Ms Joslyn at 11.00am on Sunday 27 October 1996, after the accident, showed a blood alcohol concentration of 0.102g/100mL. Recalculated to the probable level at approximately 8.45am, the time of impact, this, according to Professor Starmer, disclosed a blood alcohol level of 0.138g/100mL in Ms Joslyn's case ^[72] . In the case of Mr Berryman the respective levels were 0.16g/100mL at 10.35am, with an estimated level at the time of impact of 0.19g/100mL ^[73] .

[88] Both Mr Berryman and Ms Joslyn were found to have been seasoned drinkers ^[74] . This would have reduced somewhat the effect of alcohol consumption on their cognitive and motor capacities. However, the primary judge accepted the evidence of Professor Starmer that, at the time of the accident, the "crash-risk" had been increased in the case of Ms Joslyn "more than 20-fold", over and above that of a sober driver. Moreover, he accepted Professor Starmer's opinion that the "risk of a crash would have been even greater in [her] case because she had not driven for three years after she had lost her license for a drink driving offence" ^[75] . As well, because Ms Joslyn had slept for no more than three hours and possibly as little as two before setting out with Mr Berryman, the primary judge also accepted Professor Starmer's opinion that the effect on her of alcohol consumption was likely to have been increased by the effects of hangover. She was impaired, fatigued, in control of a vehicle which the evidence showed was prone to roll over and which had a broken speedometer. She was also inexperienced in driving.

[89] In the case of Mr Berryman, even greater physiological effects of alcohol intake were identified by the evidence. He had gone to sleep at about 4.00am on Sunday 27 October 1996 in a state of high intoxication. Before he did so, he had been mainly "talking with the boys" at the party but had also spent time talking in close proximity to Ms Joslyn. He agreed that at the time he went to bed at 4.00am "the people who were still at the party were all staggering drunk". One of those people was Ms Joslyn, although Mr Berryman qualified his recollection by saying that he could not recall her condition. Nevertheless, it appears incontrovertible that, over the lengthy period of Mr Berryman's consumption of alcohol, he would have been aware, in a general sense, that Ms Joslyn was also drinking heavily over the same time.

[90] There followed intervals of sleep, longer (and commencing somewhat earlier) in the case of Mr Berryman. When, upon waking at about 7.00am Mr Berryman set out with Ms Joslyn for Mildura for breakfast, he would, objectively, have known that he, and probably Ms Joslyn, were still affected by the alcohol they had consumed. Mr Berryman agreed that he would not have willingly allowed her to drive his vehicle on the Sunday morning. He knew, from something told to him before the accident, that Ms Joslyn did not have a driver's licence. He was aware of the propensity of his vehicle to roll if approaching a corner too fast. He was also aware that alcohol consumption could adversely affect the ability of a driver to accomplish such manoeuvres. He knew that it was against the law to permit an unlicensed driver to drive a motor vehicle and that it was illegal to permit someone seriously affected by alcohol to do so. Answers affirming these points were given in evidence by Mr Berryman in the course of reconstructing events.

[91] To the foregoing facts had to be added evidence from witnesses, accepted as reliable by the primary judge, concerning the appearance of Ms Joslyn when she was observed soon after the accident. Thus the primary judge accepted the testimony of Constable Favelle, Mr Smythe and Mr Walker and of Ms Deane that Ms Joslyn did not show signs of intoxication at the accident scene. This was despite "the presence of beer bottles and the upturned Esky, at the accident scene, [which] would have raised, in the minds of those attending ... the question of the part consumption of alcohol played in the accident" ^[76] . It was the evidence of the witnesses that led his Honour to conclude that "at the time [Mr Berryman] authorised Miss Joslyn to take over the driving of the vehicle it is unlikely she was exhibiting, to [him], obvious signs of intoxication" ^[77] .

[92] It was on the basis of these findings that Mr Berryman presented his challenge to the finding of contributory negligence to the Court of Appeal. According to Mr Berryman the "real cause" of the accident and of the damage he had suffered in consequence, was solely the actions of Ms Joslyn in commencing to drive the vehicle and in doing so in the manner that she did and with her knowledge of her lack of a driver's licence, want of recent driving experience and objective condition of intoxication. According to Mr Berryman, the damage he had suffered could not reasonably be attributed to any fault on his part in handing Ms Joslyn the keys of his car on the return journey from Mildura. He had done this after Ms Joslyn observed him falling asleep at the wheel and said something to him. Mr Berryman argued that, in such circumstances, Ms Joslyn had the responsibility to refuse to drive, to allow him to sleep it off or to wait for, or summon, help. It was his submission that the crucial time to judge the issue of contributory negligence was the moment when he handed her the keys. Objectively, in the state in which he was at that time, combining intoxication and fatigue, he was not in a position to make a rational decision appointing Ms Joslyn as his driver. To the extent that his previous consumption of alcohol was relevant, it had disabled him from making responsible choices. He was not, therefore, to be treated as at fault for the damage that had followed.

Findings at trial and on appeal

[93] Findings at trial: The primary judge recognised that the resolution of the issue of contributory negligence depended, in part, upon the period of time to which regard was to be had in resolving the issues presented ^[78] . After referring to a number of cases in which like questions had arisen ^[79] , he concluded that, in this case, he was required to open the lens of the facts and take the broader focus ^[80] .

[94] His Honour therefore addressed his attention to a period starting "well before [Mr Berryman] went to bed on Sunday morning" up to the time Ms Joslyn commenced to drive. He found that, objectively, Mr Berryman "ought to have recognised her capacity to drive was affected by her excess consumption of alcohol and the other factors referred to by Professor Starmer which included fatigue and lack of experience" ^[81] . Although he accepted that Mr Berryman did not actually give the matter consideration, he found that he should have contemplated the prospect of a journey such as was undertaken to Mildura and that, had he done so, it would have been obvious to him before he went to sleep, that Ms Joslyn would not be fit to drive his vehicle on the following morning. He went on ^[82] :

"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. [Mr Berryman] 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."

[95] It was in these circumstances that the primary judge turned to the apportionment. He fixed the reduction for contributory negligence at 25% rather than a third because "at the time of the hand-over Miss Joslyn exhibited none of the obvious signs of intoxication which one would expect to be present".

[96] Findings on appeal: The reasons of the Court of Appeal were given by Meagher JA. After reciting the long interval during which the main actors had been consuming alcohol, followed by the short intervals of sleep, the visit to Mildura and the changeover of driving on the return journey to the Crisps' home, Meagher JA went on ^[83] :

"The only action of [Mr Berryman's] 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 0.138 g/100 ml and 0.19 g/100 ml 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."

[97] It was with these words (and a sideways glance at the rule of restraint in disturbing apportionments for contributory negligence ^[84] ), that Meagher JA concluded that contributory negligence had not been proved. The defence should therefore have been dismissed. The apportionment was overruled. The cross-appeal seeking an increase in the apportionment was rejected.

The issues

[98] The following issues arise for decision by this Court:

(1)

Whether the Court of Appeal erred in disturbing the conclusion of the primary judge on contributory negligence given the advantages enjoyed by that judge and the rule of restraint established in regard to such factual decisions. (The rule of restraint issue);

(2)

Whether the Court of Appeal erred in law in failing to base its decision on the contributory negligence issue upon the legislation governing that issue as it applied to each of the appeals before it. (The statutory provisions issue); and

(3)

Whether the Court of Appeal otherwise erred in its determination of the facts upon the basis of which it concluded that contributory negligence had not been proved in the circumstances of the case. (The factual evaluation issue).

[99] I will deal with each of these issues in turn. However, first, it is useful to say something about the approaches taken in earlier cases to problems of a similar kind.

Conflicting approaches to cases of intoxicated passengers

[100] Course of authority: In Liftronic Pty Ltd v Unver ^[85] , I pointed out that "contributory negligence, and apportionment, are always questions of fact" ^[86] . It is a mistake to endeavour to elevate into rules of law observations "however eloquent, uttered by judges, however eminent, about the facts of some other case" ^[87] . Nevertheless, as more decisions upon such questions fall to be made by judges rather than by juries as they once were, and as judicial reasons are examined on appeal, it is probably inevitable and in the interests of judicial consistency (which is a hallmark of justice ^[88] ), that trial judges and appellate courts should look to the way earlier decision-makers have resolved like factual questions. Those decisions do not yield binding principles of law. However, they do provide some guidance as to the approach that has been taken to the solution of problems, the recurring features of which take on a monotonous similarity when different cases are compared.

[101] When appeals such as the present ones reach this Court, it is also desirable for the Court to inform itself of the way in which the issues for decision are being approached by courts subject to its authority. This will help this Court to provide to judges, lawyers, insurance assessors and litigants appropriate guidance for the making of decisions with a measure of confidence that they will not be subject to correction for errors of law or of approach to commonly repeated facts.

[102] Furthermore, an understanding of this decisional background is specially relevant in these appeals. It helps to explain the reasons for, and purposes of, the provisions of the enacted law that was adopted, in part at least, to overcome some of the approaches disclosed in the cases. These sometimes evidence the judicial reluctance to find contributory negligence against intoxicated drivers and passengers that ultimately provoked Parliament to enact the statutory law that is critical to the decision in at least one of these appeals.

[103] The seeds of the controversy were first considered by this Court in The Insurance Commissioner v Joyce ^[89] . Like the present case, that was one in which, after a motor vehicle accident had occurred, objective evidence demonstrated that the driver had been affected by consumption of alcoholic liquor. The question arose as to whether the claim for damages of the passenger, who had been sitting beside the driver, was defeated in consequence. Attention was given to three legal bases on which such a case might fail ^[90] :

(1)

that no duty of care was owed to a passenger where a driver was known to be intoxicated;

(2)

that the defence provided by the voluntary assumption of risk applied in such circumstances; and

(3)

that the defence of contributory negligence (which at common law was a complete answer to a plaintiff's claim) forbade recovery.

[104] Differing views were expressed in Joyce concerning the preferable basis for resolving a challenge to such a plaintiff's entitlement to succeed. However, it was upon the issue of contributory negligence (which, at that time ^[91] , was somewhat controversial in such cases in England ^[92] ) that conflicting opinions were stated, reflections of which have been seen in Australian judicial approaches ever since. Thus, Latham CJ was prepared to regard the category of contributory negligence as apposite to the circumstances where both driver and passenger were intoxicated. However, he went on ^[93] :

"If in the last stage of the journey the plaintiff was sober enough to know and understand the danger of driving with [the driver] in a drunken condition, he was guilty of contributory negligence, and he also voluntarily encountered an obvious risk and his action should fail.

But if he was not sober enough to know and understand such a danger, then there is no reason to believe that his inability to appreciate the danger was other than self-induced. If he drank himself into a condition of stupidity or worse, he thereby disabled himself from avoiding the consequences of negligent driving by [the driver], and his action fails on the ground of contributory negligence."

[105] It was this last approach to the consequence of self-induced defects of cognition and understanding, fatigue and incapacity that caused Dixon J, in his dissenting opinion, to express a contrary view ^[94] :

"But 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."

[106] Similar divisions of opinion, upon the same subject, have appeared in later decisions of this Court and other courts in somewhat similar factual circumstances. In O'Neill v Chisholm ^[95] , this Court, by majority ^[96] , restored the trial judge's decision to reduce a plaintiff's damages by a third on the basis that he had been lacking in care for his own safety in becoming a passenger in the defendant's vehicle, taking into account the defendant's then visible state of insobriety. Crucial to the approach of all members of the Court in O'Neill was an investigation of what the plaintiff passenger "knew or ought to have known" of the condition of the driver so far as his sobriety was concerned. It was only on the question of whether the objective evidence warranted a finding of contributory negligence that the judges differed.

[107] In the Supreme Court of South Australia in Banovic v Perkovic ^[97] , the trial judge had rejected the defence of contributory negligence on the ground that the driver had not demonstrated outward signs of intoxication. It was on that evidentiary footing that King CJ, in the Full Court, affirmed that there was "no basis for a finding of contributory negligence" ^[98] . Cox J agreed ^[99] . So did Walters J, with expressed reluctance in light of the objective blood alcohol evidence ^[100] . The decision illustrates the importance commonly attached by trial courts in such circumstances, to the appearance of the driver at the time the journey is commenced and whether there are then observable signs of intoxication.

[108] In Morton v Knight, in the Supreme Court of Queensland, Cooper J found that contributory negligence had been established in the case of an intoxicated passenger who accepted a lift home from a driver who was found to have been "observably drunk to a marked degree", when that condition was such as to have been obvious to a reasonable sober person ^[101] . Cooper J dismissed the argument that a passenger could rely on his or her own self-induced insobriety to sustain a conclusion of unawareness about the driver's condition. While his Honour found contributory negligence to be proved, he described the passenger's conduct as "passive", resulting from "placing himself in a position of danger within the car" and thus having no "causative potency" so far as the negligent conduct of the driver or the accident were concerned ^[102] .

[109] In 1990, the New South Wales Court of Appeal considered an appeal by a passenger against a 20% reduction of damages for contributory negligence following injuries sustained in a car accident on the basis of objective evidence, despite the passenger's denial of any awareness that the driver was seriously affected by alcohol at the time of the accident. Clarke JA held that the passenger "ought reasonably to have recognised" the driver's unfitness to drive, treating the passenger's own intoxication as no excuse ^[103] .

[110] In 1995 in the Queensland Court of Appeal, in McPherson v Whitfield, Macrossan CJ (with the concurrence of McPherson JA) drew a distinction between the case where the passenger knew, or ought reasonably to have known, that the driver would be in charge of a vehicle in which he or she might travel as a passenger and the case where such reliance on the driver was unforeseeable ^[104] . In his reasons in McPherson, Lee J, in considering the relevance of a passenger's state of intoxication and in support of the approach of King CJ in Banovic (and other decisions ^[105] ), rejected the approach taken by Cooper J in Morton. He said ^[106] :

"To say that a sober person in those circumstances would have detected the driver's condition is not to the point. It is the passenger's conduct which must be judged and unless the defendant can point to some specific causative act of contributory negligence on his part his allegations in that respect must fail."

[111] In Williams v Government Insurance Office (NSW) ^[107] the New South Wales Court of Appeal dealt with a case in some ways similar to the present. There, the plaintiff and defendant had been drinking together for some time. They then travelled together in the plaintiff's vehicle. However, as the defendant's husband, who had been driving the vehicle, was falling asleep in consequence of his alcohol consumption, the defendant protested. The plaintiff handed the keys to the defendant and got in the back seat of the car to lie down. The defendant drove off and the accident occurred, injuring the plaintiff.

[112] The trial judge in Williams found contributory negligence and reduced the plaintiff's damages by 80%. All members of the Court of Appeal upheld the conclusion that contributory negligence had been established ^[108] . In my reasons I suggested that the primary responsibility for the plaintiff's damage rested on the driver ^[109] :

"The keys put [the driver] in a position of choice. Driving the vehicle assigned to her extremely heavy and obvious obligations. Handing her the keys did not exempt her thereafter from her own responsibility. It permitted her to drive the vehicle. It did not oblige her to drive."

[113] In Nominal Defendant v Saunders, the trial judge in the Supreme Court of the Australian Capital Territory found that the signs of the driver's intoxication "were there for the plaintiff to see but he was too drunk to see them" ^[110] . His Honour dismissed the defence of contributory negligence on the basis that the defendant carried the onus to prove contributory negligence and, because the passenger was not conscious of the intoxicated condition of the driver, had failed to do so. The Full Court of the Federal Court rejected the appeal against that dismissal, with reasoning similar to the decision of the Court of Appeal in the present case. In his reasons, Fox J observed ^[111] :

"The mere fact that a driver is inebriated at the time of the accident does not establish the defence [of contributory negligence], nor does the mere fact that the passenger is in such a condition at that time do so. It is to be remembered too that the allegation of negligence will normally relate, not to the drunkenness, but to the manner of driving. The defence will be based on what the passenger knew as to the driver's condition or behaviour, or what he would have known had he at a relevant time been taking reasonable care for his own safety ... Whether or not the danger should have been apprehended, and what should have been done about it are matters to be measured according to the test of the reasonable man."

[114] Spender and Miles JJ in Saunders regarded it as critical to ascertain whether the evidence established that the passenger "knew that it was likely that he would be the passenger of [the driver]" ^[112] . Their Honours' reasoning, in rejecting contributory negligence, treated as determinative the onus resting on the defendant to establish the defence and the need for the defendant to prove that the journey with the intoxicated driver was reasonably foreseeable before the passenger became incapable of deciding whether or not to so proceed.

[115] Two emerging approaches: Broadly speaking, therefore, two approaches have emerged in the decisions of Australian courts relevant to the defence of contributory negligence where that defence is raised against the claim of a passenger who agrees to travel with a driver who, after an accident, is shown objectively to have been intoxicated.

[116] On the one hand there are cases (of which Morton ^[113] is the clearest instance) in which the approach taken by the judges invites consideration of the entire context of the passenger's conduct, including its "causative potency", while rejecting any suggestion that a passenger's self-intoxication can be a complete answer to the defence of contributory negligence constituted by the passenger's entering the vehicle and proceeding on a journey when he or she ought to have known (but for such intoxication) that the driver was not in a condition to drive ^[114] .

[117] On the other hand are the cases which focus more particularly on the conduct immediately preceding the accident. They consider (including by reference to the passenger's own state of sobriety, capacity and appreciation) whether he or she was then, and could with reasonable foreseeability have anticipated being, in a position to decline the proffered opportunity to travel in the vehicle driven by an intoxicated driver. Illustrations of this approach include Banovic ^[115] , Saunders ^[116] and McPherson ^[117] .

[118] Once judges replaced juries in cases of this kind and were obliged by law to give reasons for their decisions, it was inevitable that such reasons would expose, in common factual situations, differing judicial consideration of mixed questions of fact and law. This Court should not ignore the differences with the solecism that each case turns on its own facts. Of course it does. But where the facts are common, and frequently repeated, the emergence of substantially differing judicial approaches to their legal consequences demands elucidation and authoritative choice by this Court of the preferable opinion. Subject to what follows, the resolution of the issues raised by the present appeals affords the opportunity to clarify the general approach that the law requires.

The rule of restraint issue

[119] The first issue to be decided concerns the rule of restraint ^[118] . Three factors reinforce the need for restraint in disturbance of decisions about contributory negligence and apportionment:

(1)

The issue of contributory negligence is essentially a factual question, and therefore the primary judge (or jury) will have relevant advantages over an appellate court that will often be critical for the determination of the issue ^[119] ;

(2)

The apportionment legislation conferred upon the decision-maker a power to reduce the recoverable damages "to such extent" as the court determines "having regard to" a consideration expressed in very general language ("the claimant's share in the responsibility for the damage") that evokes the exercise of a quasi-discretionary judgment ^[120] upon which different minds may readily come to different conclusions ^[121] ; and

(3)

The broad criteria by which such decisions are made at trial (including by reference to what "the court thinks just and equitable" in the case ^[122] ) make it difficult, absent a demonstrated mistake of law or fact, to establish the kind of error that, alone, will authorise an appellate court to set aside the decision and any apportionment of the trial judge and to substitute a different decision or apportionment on appeal.

[120] In Liftronic, also a contributory negligence appeal, Meagher JA, in the Court of Appeal, was insistent upon the rule of restraint ^[123] . His dissent in that respect was later upheld by a majority of this Court ^[124] . I disagreed, pointing out that restraint had to be distinguished "from paralysed inertia or repudiation of jurisdiction" ^[125] . I remain of the view that unthinking application of restraint can amount to a negation of the judicial duty. Once error is shown, whether of law or fact, the appellate court is authorised to alter any apportionment for contributory negligence made at trial which is shown to have been affected by such error.

[121] Correctly, Ms Joslyn and the Council urged the advantages which the primary judge enjoyed in reaching his conclusion about contributory negligence and in evaluating all of the circumstances of the case. The trial lasted eleven days. The primary judge's opinion as to Mr Berryman's "share in the responsibility for the damage" depended upon his evaluation of the entirety of the evidence. This fact presented a sound reason for restraint. However, I am not convinced that the Court of Appeal overlooked this consideration. Reference was expressly made to the decision of this Court in Podrebersek v Australian Iron & Steel Pty Ltd ^[126] in which the rule of restraint is stated. The Court of Appeal accepted the necessity to demonstrate error. It follows that the complaint raised by the first issue fails.

The statutory provisions issue

[122] Differential statutory application: Of greater concern is the omission of the Court of Appeal to refer to, and apply, new statutory provisions that had been enacted by the New South Wales Parliament to govern conclusions on the issue of contributory negligence where that defence was raised in the case of a motor accident.

[123] So far as the given reasons of the Court of Appeal are concerned, no distinction was drawn between the general provisions of the enacted law amending the common law doctrine of contributory negligence ^[127] and the particular provisions enacted to govern contributory negligence in cases of motor accidents. It may be that the omission can be explained by the failure of the parties to direct the attention of that Court to the legislation. It may be that it was because the Court, from many like cases, was well familiar with the applicable law. However, with respect, the statute needed to be referred to, not least because of the different statutory regimes that applied respectively to the appeal and cross-appeal concerning Mr Berryman's claim against Ms Joslyn and the appeal concerning his claim against the Council. In the former, the relevant statutory regime was s74 of the Motor Accidents Act 1988 (NSW). In the latter, the relevant regime was the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) ("the 1965 Act").

[124] The 1965 Law Reform Act: The familiar language of the 1965 Act needs to be stated because it is mentioned in the particular case of contributory negligence in respect of motor accidents, being part of the "enacted law" referred to in the provisions governing motor accidents ^[128] . At the applicable time, s10 of the 1965 Act stated, relevantly:

"10(1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage ...

(2) Where damages are recoverable by any person by virtue of the foregoing subsection subject to such reduction as is therein mentioned, the court shall find and record the total damages which would have been recoverable if the claimant had not been at fault."

[125] A number of comments may be made on these provisions. The primary object of the 1965 Act was to reverse the rule of the common law that forbade recovery if contributory negligence was shown on the part of the plaintiff in however small a degree. It is in the second part of s10(1), in establishing the substituted rule, that the new approach is established.

[126] Secondly, s10(1) read with s10(2) ("if the claimant had not been at fault") is not concerned, as such, with moral culpability ^[129] . Courts are not authorised under the 1965 Act to punish a claimant because he or she became intoxicated by consumption of alcoholic liquor or because courts regard that state as morally reprehensible. The focus of the sub-section is different, and more limited ^[130] . As in the application of any statutory provision, a court must give it effect in terms of its language and to achieve its expressed object.

[127] Thirdly, s10(1) does not address attention to the extent to which any act or omission on the part of the claimant caused the accident, as such. To approach the issue of contributory negligence in that way would be to misread the provision. The "responsibility" for which s10(1) provides is that which is "just and equitable having regard to the claimant's share in the responsibility for the damage". Such "damage", as the opening words of s10(1) make clear, is the damage which the person has suffered as a "result partly of his own fault and partly of the fault of any other person or persons". In judging the question of culpability, the decision-maker will have regard to the fact that the respective acts of a driver and a passenger will ordinarily have posed quite different dangers. Thus, "the defendant who was driving the [vehicle] ... was in charge of a machine that was capable of doing great damage to any human being who got in its way"; on the other hand "the plaintiff's conduct posed no danger to anyone but" himself ^[131] .

[128] Fourthly, a clue is given to the operation of s10 by the definition of "fault" in s9 of the 1965 Act. This clarifies the object to which s10(1) is directed. By that definition, relevantly, "fault" means "negligence, or other act or omission which gives rise to a liability in tort or would, apart from this Part, give rise to the defence of contributory negligence". In a motor vehicle accident in which a passenger alone was injured, it is difficult to see how surrendering the keys to a vehicle to a person who then assumed the responsibility of driving the vehicle would constitute the kind of negligence or act or omission giving rise to a liability in tort except in a temporal sense. However, the presence of that definition appears to postulate an application of s10(1) that looks at "fault" in a broad, and not a narrow, way. Such an approach would also be in harmony with the language and apparent object of the sub-section. In particular, it is comparable with the statutory direction to resolve issues of "responsibility" by reference to what is "just and equitable". This is enacted law that contemplates bold strokes of judgment in the assignment of "responsibility". It recognises that a search for mathematical precision or an objective evaluation of culpability is illusory.

[129] The Motor Accidents Act: Greater guidance is afforded where the defence of contributory negligence is to be decided in accordance with the Motor Accidents Act ^[132] . That Act was enacted by the New South Wales Parliament to introduce reform of the previous law designed to enhance recovery in the case of "motor accidents" but to ensure that damages were more affordable. It repealed the original legislation ^[133] and returned the law in that State to a "modified common law scheme for compensating motor accident victims" ^[134] . The concern that led to the provision regulating contributory negligence in connection with defined motor accidents was said to be that "a crisis point" had been reached in the award of damages in such cases ^[135] . It was for this reason that the provisions that became s74 and s76 were included in the Motor Accidents Act.

[130] The Attorney-General, supporting in Parliament the introduction of those provisions, described the Bill as "another significant reform to common law rules, which should have a large impact by placing responsibility for safe conduct on all road users" ^[136] . By s76 of the Act, the defence of voluntary assumption of risk (volenti non fit injuria) was abolished (save, later, in certain presently irrelevant cases of motor racing) ^[137] . Instead of considering cases to which that defence would otherwise have applied, an approach of apportionment was to be substituted. It was to be applied "on the presumption that the injured person ... was negligent in failing to take sufficient care for his or her own safety". Thus, in proceedings for damages arising from a "motor accident" in New South Wales, one of the three legal categories mentioned in Joyce was abolished. Effectively, it was subsumed within contributory negligence as that defence had earlier been reformed by statute.

[131] Of equal importance in the Motor Accidents Act were three changes introduced by s74 of that Act. That section was enacted to supplement "[t]he common law and enacted law" ^[138] . First, s74 obliges ("shall") a court to make a finding of contributory negligence in specified cases. Three of those cases are immaterial to the present appeals but indicate the genus with which Parliament was concerned: convictions of certain offences under traffic law; injuries to certain persons who were not wearing a seatbelt as required by law; and injuries to persons not wearing a protective helmet when required ^[139] . The category that is expressly relevant to the appeal of Ms Joslyn is stated in s74(2)(b). That paragraph reads, relevantly:

"A finding of contributory negligence shall be made in the following cases:

...

(b)

where:

(i)

the injured 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 ... and the injured person ... was aware, or ought to have been aware, of the impairment".

[132] The parliamentary instruction that a court "shall" make a finding of contributory negligence in the specified cases may not be ignored when it applies to the facts. It represents the expressed will of the legislature acting within its powers. Clearly enough, it was enacted to arrest, or correct, any disinclination that might exist on the part of the decision-maker to give effect to such a finding. Once the precondition in the identified categories is fulfilled, the duty of the decision-maker ("shall") is enlivened. The finding of contributory negligence must then be made.

[133] Secondly, in s74(3) of the Motor Accidents Act, Parliament has avoided the more complex statement of the criteria found in s10(1) of the 1965 Act. There is no reference to the respective "faults" of the persons involved. Nor is there a reference to the "responsibility for the damage". In s74(3) provision is simply made for the reduction of the damages recoverable "as the court thinks just and equitable in the circumstances of the case". It is not entirely clear whether this more limited formula replaced the previous statement of the "enacted law" set out in the 1965 Act. On the face of things, it appears to do so and thus leaves wholly at large the reduction for contributory negligence, made by reference to nothing more than what "the court thinks just and equitable". If this is the effect of s74(3), as I think it is, it introduces into appellate review of decisions on apportionment for contributory negligence in cases of motor accidents an even greater obstacle to the demonstration of appealable error ^[140] .

[134] Thirdly, perhaps as a means of safeguarding parties against arbitrary determinations under s74(3), provision is made by s74(4) of the Motor Accidents Act for the court to state its reasons "for determining the particular percentage". Typically, statements of reasons enhance the availability of appellate reconsideration where the reasons disclose that extraneous or irrelevant considerations have been given effect ^[141] .

[135] An erroneous oversight: Enough has been said of the provisions of the relevant statutes, which were differentially applicable to the claims of Mr Berryman against Ms Joslyn and the Council, to indicate why the failure of the Court of Appeal expressly to address attention to the statutory language constituted error. In particular, in the case of the judgment against Ms Joslyn, in respect of what was undoubtedly a "motor accident" within the Motor Accidents Act, if the applicable law was to be applied accurately, it was essential for the primary judge and the Court of Appeal to give explicit attention to the requirements of s74 of that Act.

[136] Prima facie, the requirement of s74(2)(b) of the Motor Accidents Act was engaged. At the very least, even if, because of alcohol consumption, it could be said that "the driver's ability to drive the motor vehicle was impaired as a consequence of the consumption of alcohol" (as seems clearly to have been established in the case of Ms Joslyn) but that the "injured person" (Mr Berryman) was not in fact "aware" of that impairment at the relevant time of her driving the motor vehicle by reason of his own intoxication and fatigue, the question would remain, within s74(2), whether Mr Berryman "ought to have been aware ... of the impairment".

[137] In this case, the issue of contributory negligence was not therefore to be decided by reference to general considerations affecting contributory negligence at common law, as modified by the apportionment statute. It was governed by "enacted law". The duty of the Court of Appeal was therefore to apply that enacted law. This is yet another instance in which applicable statute law has been overlooked in favour of judge-made law ^[142] . When a statute applies (as it did here) it is fundamental that it must be given effect according to its terms. There is nothing to suggest that any of the considerations of the relevant statutes were addressed by the Court of Appeal. Instead of attention being focussed on the meaning of s74(2)(b)(ii) (as should have been the case) the appeals were determined without reference to the considerations that the governing sub-paragraph of statute law required.

[138] Nor can this be regarded an immaterial error. The clear purpose of s74(2) of the Motor Accidents Act was to address what must be taken to have been a determination on the part of the New South Wales Parliament that findings of contributory negligence should be made in certain identified cases and, by inference, that the disinclination of the courts to so find, evident in the cases to some of which I have referred, was to be corrected in furtherance of the solution to the "crisis point in the calculation of damages" mentioned by the Attorney-General and in pursuance of the "large impact" deemed desirable "by placing responsibility for safe conduct on all road users" ^[143] .

[139] When, in that statutory context, it is asked whether Mr Berryman "was aware, or ought to have been aware" of the fact that Ms Joslyn's ability as a driver to drive the motor vehicle was "impaired as a consequence of the consumption of alcohol" a different answer might be given than if the issue was wholly at large or was to be determined solely by reference to the considerations of "responsibility for the damage" mentioned in the 1965 Act. In the Motor Accidents Act, once the conditions were fulfilled (including those stated in s74(2)(b)) the requirement to make a finding of contributory negligence was obligatory.

[140] Applying this statutory provision, contributory negligence was therefore complete in the present case. All that had to be shown was that Mr Berryman was "aware, or ought to have been aware" of Ms Joslyn's "impairment". This did not require demonstration by the appellants of the fact that he was aware or ought to have been aware of the precise degree of incapacity that existed or of total inability on the part of Ms Joslyn to drive the vehicle. According to the undisputed evidence, Mr Berryman was certainly aware that Ms Joslyn had been consuming alcoholic drinks for many hours. To his knowledge, she had only a short interval of sleep when they set out for Mildura. Mr Berryman was also aware of the particular propensities of his vehicle that were relevant to any other driver's ability to drive it. To the extent that, because of impairment of cognition and fatigue, Mr Berryman did not actually focus upon, and consider, the issue of Ms Joslyn's ability to drive the motor vehicle, the question remains whether he "ought to have been aware" of these considerations.

[141] It could not be said that the possibility of a journey to Mildura for breakfast, of his falling asleep at the wheel and handing the ignition keys to Ms Joslyn was something unforeseeable to Mr Berryman when he proceeded upon his course of alcohol consumption on the evening and morning before his accident. Already, as the primary judge found, he had left the party by his vehicle at about 11.00 to 11.30pm "to secure cigarettes" ^[144] . His continued use of the vehicle, although he was increasingly affected by alcohol consumption, was thus readily foreseeable. It was far from unlikely that the hand-over to Ms Joslyn of the keys of the vehicle would occur and that she would then accept the implied invitation and continue the return journey which Mr Berryman felt incapable of completing. In the circumstances it cannot be said that he was other than "a voluntary passenger in ... a motor vehicle" from the moment he exchanged his place at the wheel with Ms Joslyn.

[142] The oversight establishes error: It follows that, to find that there was no contributory negligence at all on the part of Mr Berryman, and in particular to do so without reference to the applicable statute law, constituted legal error. That error requires that the appeals be upheld and that the appeals and cross-appeal to the Court of Appeal be redetermined by that Court. That must be done by reference to the statute law governing each appeal to that Court.

The factual evaluation issue

[143] In the light of the foregoing conclusion, and the consequential need to return the proceedings to the Court of Appeal, it is strictly unnecessary to resolve all the other complaints made for Ms Joslyn (supported by the Council) in respect of the factual errors that were said to underpin the conclusion that was reached, reversing that of the primary judge. Although a different statutory regime governs the resolution of the defence of contributory negligence in the proceedings between Mr Berryman and the Council, there is no reason to think that the conclusion of the Court of Appeal was right in the Council's case, although wrong in the "motor accident" proceedings concerning Ms Joslyn.

[144] The mere fact that, at the time Ms Joslyn took the keys and accepted Mr Berryman's express or implied invitation to drive his vehicle, she did not appear to be affected by alcohol intoxication is much less significant in this case than it might be in other factual circumstances. If, for example, a passenger, without knowledge of a driver's insobriety, accepted an invitation to travel in a vehicle, the initial appearances of the driver could be very important to the statutory question of what was "just and equitable in the circumstances of the case" ^[145] . Similarly, it could be important to what a court thinks is "just and equitable having regard to the claimant's share in the responsibility for the damage" ^[146] .

[145] Such considerations were scarcely determinative in Mr Berryman's case because, before he became seriously inebriated as he did, he was able to, and did, observe Ms Joslyn engaged in a similar pattern of extended consumption of alcohol. Although Mr Berryman went to sleep at 4.00am, and may not have seen Ms Joslyn, as described, "staggering drunk" at about that time, it cannot seriously be suggested that it was not open to the primary judge to infer that Mr Berryman was aware of her extensive drinking. Her deceptive appearance of sobriety at the time he offered her his keys and exchanged positions with her at the wheel, whilst not irrelevant, could not in the circumstances enjoy the factual significance which the Court of Appeal assigned to them ^[147] . Other witnesses who saw her after the accident might say that she showed no signs of intoxication. But Mr Berryman knew differently. This will commonly be the case where a driver and passenger have engaged, together or close by, in an extended bout of alcohol consumption over a continuous interval ^[148] .

[146] A second factual error lay in the Court of Appeal's conclusion that the only action on the part of Mr Berryman that could possibly have amounted to contributory negligence was permitting Ms Joslyn "to drive instead of him" ^[149] . With respect, this represented an undue narrowing of the questions to be resolved, whether under the legislation governing motor accidents or under the general legislation provided in the 1965 Act. Even if the particular requirements of the Motor Accidents Act were ignored, the 1965 Act looks at the issue of "responsibility" more globally. As a price for relieving a claimant from the total disqualification which the common law had previously provided in the case of contributory negligence, the 1965 Act authorises the court, deciding the claimant's entitlement of damages, to reduce any such damages that would otherwise be recoverable by reference to "his own [partial] fault". All that is provided by way of criteria is the definition of "fault"; the direction to the consideration of the "claimant's share in the responsibility for the damage"; and the authorisation to make the deduction "to such extent as the court thinks just and equitable".

[147] Having regard to the matters which Mr Berryman knew when he made it possible for Ms Joslyn to drive his vehicle, it is impossible to say that the trial judge erred in determining that his conduct in setting out on the journey to Mildura and later enabling Ms Joslyn to drive part of the return, engaged s10(1) of the 1965 Act in respect of his claim against the Council. To the extent that Mr Berryman disabled himself from making rational choices by drinking so much alcohol that he was greatly affected by it and seriously fatigued, it was open to the primary judge to conclude that it was "just and equitable" that his recovery should be reduced because he shared in the responsibility for the damage that followed. In short, Mr Berryman ought to have known that in setting out to Mildura what happened might occur, as it quickly did. In providing the keys and exchanging places with Ms Joslyn he made that possibility an actuality.

[148] I do not say that Mr Berryman's "share in the responsibility for the damage" was as large as that of Ms Joslyn. My general view on such matters remains as I stated it in Williams ^[150] . The comparable roles of Ms Joslyn and Mr Berryman in the "causative potency" of the events leading to Mr Berryman's damage appear to me to be quite different ^[151] .

Ascertaining the responsibility of an intoxicated passenger

[149] That returns me to the earlier cases of intoxicated passengers. With respect, I differ from Hayne J ^[152] concerning the utility of considering the decisions in which factual issues of this kind have been decided. This is a staple diet of trial courts and intermediate courts throughout Australia. Two broad approaches can be seen in the cases. The analysis of the relevant provisions of the Motor Accidents Act and the 1965 Act assists in identifying the preferable one. It is the approach that gives effect to the purposes of the apportionment legislation that is to be favoured. This Court has a responsibility to make that clear. Of the judicial approaches discussed, the one that takes the broader focus of considering the entire course of conduct by the intoxicated passenger is preferable to that which narrows the lens to focus exclusively on the events immediately preceding the accident. This is the approach that the statutes in issue here, and both of them, require.

[150] The Court of Appeal reached the finding of no contributory negligence on the part of Mr Berryman by adopting the narrower approach. That affirmed, in effect, Mr Berryman's submission that at the time immediately before the accident, he was, as a result of alcohol consumption and fatigue, deprived of the ability to make rational choices and therefore could not be held to have been at fault in law for the damage that ensued. But the words of the statutory provisions and their objects invite consideration of all the relevant facts in a less restrictive allocation of responsibility for the damage. S10(1) of the 1965 Act looks at fault in a broad way and s74(2) of the Motor Accidents Act confers a discretion on the judge to decide the issue of contributory negligence by reference to whether the passenger "ought to have been aware" of the driver's impairment, the exercise of which also requires a broad focus, by reference to the objective evidence as well as the question of foreseeability of risk to a passenger in a car driven by an intoxicated driver.

[151] The parties will now have the opportunity to canvass their respective factual arguments on the challenges to the apportionment made by the primary judge - Mr Berryman asserting that such apportionment was appealably excessive and Ms Joslyn asserting that it was appealably inadequate. Each will advance their respective arguments, as will the Council, on the footing that the primary judge, who considered the broader factual context, was correct to find some contributory negligence on the part of Mr Berryman proved. Such contributory negligence was established, both under the Motor Accidents Act (in the claim against Ms Joslyn) and under the 1965 Act (in the claim against the Council).

Orders

[152] Each appeal should therefore be allowed with costs. I agree in the orders proposed in the joint reasons.