Johns v Cosgrove

[2001] HCATrans 125

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B43 of 2000

B e t w e e n -

DALLAS MIDGLEY JOHNS

Applicant

and

JENNIFER MARGARET COSGROVE

First Respondent

CHEVRON QUEENSLAND LIMITED

Second Respondent

Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 MAY 2001, AT 2.02 PM

Copyright in the High Court of Australia

MR C.E.K. HAMPSON, QC:  If it please the Court, I appear with my learned friend, MR G.W. DIEHM, for the applicant.  (instructed by Gall Standfield and Smith)

MR S.C. WILLIAMS, QC:   It the Court pleases, I appear with my learned friend, MR T.D.O.J. NORTH, SC, for the respondents.  (instructed by Gadens)

MR HAMPSON:   We rely on our written summary of arguments which appears at – commencing at application book 134, and our written reply, 224.  Our submission is that the Court of Appeal erred in two principal matters:  in concluding that the basis of liability for the hotel – that is the second defendant – was its responsibility for the plaintiff being drunk; and secondly, the contribution will inevitably be assessed differently if the finding against the hotel did not stand. 

The court did not enunciate any or state any principle of law as being applicable to this case.  Mr Justice Thomas, who gave the opinion which the other justices concurred with, stated simply that if one removed the hotel from the unit of defendants, the contributory negligence would probably be different.  The correct principle, which we say should have been followed, is that unless the absence of a finding of negligence against the hotel made a material difference to the risk posed to the plaintiff by the unit, then contributory negligence must be the same. 

KIRBY J:   Let me understand.  Justice Fryberg was asked by the Court of Appeal, and the appeal hearing interrupted, to determine the factual question of fraud.

MR HAMPSON:   That is so, your Honour. 

KIRBY J:   His Honour found that that fraud had been established, and no complaint, as I understand it, is made of that fact of that finding, but he found it was established only as against the hotel.

MR HAMPSON:   Hotel. 

KIRBY J:   And, therefore, is it your thesis that it would have been permissible to go ahead with a trial as against the hotel but not as against the first respondent? 

MR HAMPSON:   With respect, your Honour, I think your Honour has put it around the wrong way.  It would have been permissible to go ahead with the trial – there was a finding of negligence, which stood - as a result of the finding of fact that Mr Justice Fryberg made - there was a finding of negligence against the driver, the first defendant, and a finding of contributory negligence against the plaintiff.  Our contention would be that he, having found there was no reason – the fraud that had been committed did not go to those issues.  He expressly held that there was in fact no tainting of that judgment, was not affected by the fraud.  The matter ‑ ‑ ‑

KIRBY J:   Justice Fryberg proposed, and I think he might have even formulated an order, that the only matter that should be retried - that the fraud contaminated - was the liability of the hotel.  Is that correct? 

MR HAMPSON:   Exactly, your Honour, that is exactly what he did. 

KIRBY J:   But the Court of Appeal took the view that once the issue of fraud had come into the picture that the respective responsibilities of the defendants, having been earlier made on a particular footing, which has now been knocked away, that the only just solution was that there be a retrial generally.  That is what the Court of Appeal found. 

MR HAMPSON:   That is in fact what the court purported to do, and in the course of doing that ‑ ‑ ‑

KIRBY J:   Is that not consonant with what this Court said in Karamalis v Commissioner of South Australian Railways? 

MR HAMPSON:   No, that was a case where there was an appeal against the finding of contributory negligence.  There was no finding against contributory negligence in this case, nor was there any finding as such against the finding of negligence against the first defendant. 

KIRBY J:   I thought there were dicta in that case of Chief Justice Barwick that where you have calculated your contributory negligence on a hypothesis, and the hypothesis is radically changed, that you have to completely reconsider the whole matter, not ‑ ‑ ‑

MR HAMPSON:   Your Honour is perfectly correct, but the Chief Justice was in dissent in that particular case.  The majority did not agree that that was the case.  They did look at it, and they held that even though the number of allegations, as it were, against the defendant had changed, as a result of the appeal, they looked at the contribution again and held that nevertheless the contribution should stand as it had been assessed by the primary judge. 

KIRBY J:   But why is that not – leave aside whether he was in dissent or not, why is it not the correct principle that when you work out the question of apportionment, and there are two defendants, different considerations come into the equation than if you have to act on the hypothesis that there is only one? 

MR HAMPSON:   No, the correct rule is that one has a look at the danger posed to the plaintiff by whatever the defendants have done, or, if you like, the reaction by the defendants to whatever the plaintiff has done – one looks at that, one looks first of all at the plaintiff’s responsibility and determines contributory negligence, and whatever is left then is a matter to be divided up according to an order for contribution.  That is a different situation from saying that what you should do, in fact, is you establish an amount of contribution as against each person – the 100 per cent is cut up in some particular way, that is to say, the plaintiff and the two defendants and the like – it may be then, if one had given a judgment, as it were, against one defendant on that basis, that the matter would have to be changed.  This point was in fact raised in the case that is mentioned by the High Court and by us, Barisic’s Case, in New South Wales, a Court of Appeal case, and I will come to that in a moment, your Honour, but ‑ ‑ ‑

CALLINAN J:   Mr Hampson, could I just ask you a question, please.  I thought the order of the Court of Appeal was that Justice Fryberg, to put it precisely, determined the issues raised by paragraph 2(a) of the notice of appeal, that appears at page 54. 

MR HAMPSON:   That is so. 

CALLINAN J:   And they are set out on that page.  It seemed to me that, possibly, Justice Fryberg went further than he was required to do by the Full Court, by purporting to hold that fraud was established only in respect of the hotel defendant.  I do not think that Justice Fryberg was called upon to do that.  That was a matter for the Court of Appeal, I would have thought. 

MR HAMPSON:   Well, yes.  That is what ‑ ‑ ‑

CALLINAN J:   I notice at page 55 that, really, Justice Fryberg, in effect, rejected what the Court of Appeal said, and looked at their reasons and said they must have meant more than that.  He says ‑ ‑ ‑

MR HAMPSON:   They purported not to accept him.  They said they did not, in fact, agree with ‑ ‑ ‑

CALLINAN J:   No.  It seems to me to be relevant here, that really, Justice Fryberg had no right to go as far as he did, and that it was really a matter for the court ‑ ‑ ‑

MR HAMPSON:   In one sense he did – sorry, your Honour.  In one sense he did because the appeal was against both judgments, and it was contended that the fraud, that is the fraudulent agreement to give false evidence, affected both judgments.  That was the appellant’s case.  Mr Justice Fryberg dealt with that in the application book at page 83, in paragraphs ‑ ‑ ‑

CALLINAN J:   But he was not – that is the point:  I do not think he was entitled to do that.  I think he went beyond the exercise that he had been required to undertake pursuant to the Court of Appeal’s judgment. 

MR HAMPSON:   He was required to decide whether the judgments had been affected by fraud. 

CALLINAN J:   But not ‑ ‑ ‑

MR HAMPSON:   And he found that one ‑ ‑ ‑

CALLINAN J:   But not – that is the point – to say which one, but merely to determine whether the judgment was infected by fraud, and then it would be a matter for the Court of Appeal or a further judge on a further trial, to determine the matter, the whole matter, afresh. 

MR HAMPSON:   With respect ‑ ‑ ‑

CALLINAN J:   It may not affect your argument, Mr Hampson, because as I understand it, you are saying that no matter what Justice Fryberg did, the Court of Appeal was not entitled, as it were, to set aside the finding of negligence against the motorist; that that was a finding of negligence that should have been left untouched.  Is that not right? 

MR HAMPSON:   That is so, your Honour.  The reference to Mr Justice Fryberg is at page 83, paragraphs 25 of the page to 40.  We would submit that he was correct to deal with - seeing the judgments had been put before him and seeing that the respondents here, the defendants in the case were arguing before him that there was only one judgment, there could only be one judgment – and he rejected that view, as did the Court of Appeal, and said that where there were concurrent tortfeasors there had to be separate judgments – that it was permissible for him to express a view on each of the judgments, so far as the false evidence was concerned. 

That is all he did, in that passage I have just given your Honour, where he looks at the second judgment, and that was the report back.  But the problem then arose with the way that the Full Court treated the matter, because they took the view that the basis of liability for the hotel, the second defendant, was its responsibility for the plaintiff being drunk.  That was not at all the basis of liability of a server of drink; it is more than that.  Secondly, and the same contributing error, was that the contribution would inevitably be assessed differently if the finding against the hotel did not stand, and that is the one that has been mentioned before. 

I have said what we submit that the correct principle is:  it is a question of looking at what the plaintiff’s fault is, in relation to his damage, weighing it against the total fault of everybody else, as it were, whether they are defendants or not – they might be third parties, they might not even be sued – but one then, as it were, puts to one side a finding of deciding that the plaintiff was 25 per cent for his own damage.  One is left then with a 75 per cent to be divided among the tortfeasors.  If that exercise is done, and one of the tortfeasors is dismissed from the action, the unit, constituted by whatever the defendants did – even though some of it now is found to be lawfully done – still means that the plaintiff’s 25 per cent stands, and instead of the balance of 75 per cent being divided in two or three or whatever the case may be, it may in fact come home to one tortfeasor only, because no contribution is open. 

The matters appear – the court seems to have thought that Mr Justice Derrington had done the exercise the wrong way, but if one looks at the application book at page 8, line 20, and at 7, line 30, and at 9, 10 to 40, one can see the way his Honour approached the matter.  The Court of Appeal, however, in paragraphs [81], [82] and [88], at page 121 of the application book, seems to have the view that in some way he would have concluded differently if, in fact, he did not believe that the hotel had been responsible for the plaintiff’s intoxication.  You see, “inevitably” - in [81]: 

Inevitably, the fraud enabled a picture to be presented to the court of someone other than the plaintiff himself as legally responsible for contributing to his intoxication.  Had the case been presented as one of a grossly intoxicated pedestrian solely responsible for his own condition who came into collision with a motor vehicle, the assessment of contributory negligence against the plaintiff would in all probability have been different. 

One asks why that would follow.  The court ought to have concluded that, on the basis of the liability of the hotel, the basis of the liability of the driver, was the failure to take reasonable care for the plaintiff, after he had become intoxicated, exposing him to a risk of being run over by a car. 

The basis for contributory negligence, as his Honour Mr Justice Derrington found it, was the plaintiff’s voluntary intoxication.  So if one takes the hotel out of the unit of defendants’ fault, as it were, the percentage left after you determine contributory negligence, that does not, on the proper approach, affect the measure of the plaintiff’s own responsibility.  Mr Justice Derrington made it clear – this is at lines 30 to 45, at page 20 of the application book, that he was entering judgment against both defendants for the sum representing 55 per cent of the total assessed damages. 

It is not a case that he thought he was entering against one for 30 per cent and the other for 25 per cent, and in fact, there is a significant passage there in the application book of Mr Justice Ambrose, who, in effect - as a member of the Court of Appeal on one of the occasions when this was before it – said, at pages 38 and 39 of the application book, starting at line 50 on 38 and going over to the next page, 39 – he had said he had, in fact, read the transcript, and he had seen that Mr Justice Derrington’s approach had been influenced by a wrong belief that there were contribution proceedings.  But in fact he did not err; when he realised that, he did not give any judgment for contribution.  Again, on the history of the matter, at page 83, line 35, one has Mr Justice Fryberg, stating about Mr Justice Derrington’s – he said his: 

assessment of contributory negligence and consequential reduction of damages were not obtained by fraud –

That is what he said.

In the end I did not understand Mr Williams to submit otherwise. 

Now, the ‑ ‑ ‑

KIRBY J:   What is the solution that you propound? 

MR HAMPSON:   The solution that we propound is accepting the finding that there was fraud, and the judgment against the hotel should be set aside and a new trial ordered; that, in fact, the judgment against the first defendant should not be set aside, because the fraudulent evidence of staying in the hotel later than, in fact, the plaintiff had been in the hotel ‑ not that he had any recollection of it – could only go to the liability against the hotel.  It was completely ‑ ‑ ‑

KIRBY J:   That is said to have two flaws.  First, that the Court of Appeal found that the finding of fraud on the one tainted the whole conduct of the trial and therefore the verdict - judgment as against the other defendant; and two, that when you work the contribution of one tortfeasor to responsibility for the tort, if you have in your equation a premise of the shared responsibility of another tortfeasor, and you have to take that away, then you have to go back to first base, and you have to recalculate the responsibility. 

MR HAMPSON:   Both statements are erroneous; they rest on, really, erroneous views of what the law is.  The first one, your Honour, in effect, does not – it is not demonstrated by the court how it is that the fact that the plaintiff caused some evidence to be given that he had stayed later at the hotel than he remembered he had, than he knew he had - how that impacted, in any way, upon the finding of negligence against the driver of the car, or on his contributory negligence.  Mr Justice Derrington found him guilty of contributory negligence on the basis of his voluntary intoxication, that he just drank too much.  He got himself drunk at a time when he ought to have known that he was going home and he could subject himself to danger as he did, by going on the road. 

That does not impact, in any way – that particular fraud cannot be seen, in any way, to operate against the judgment against the driver.  In fact, the court really does it in two ways.  They sum it up – and both, we suggest, are incorrect.  It is on page 121, with the passage that I had started – it goes over that page and on to the next page – but stopping with paragraph 83 on the first page, bearing in mind there was no claim for contribution.  One picks it up again, probably, at 123.  “In the present case” – this is [88]:

In the present case one part of the combined fault of the defendants ‑ the fault of Chevron – was determined as a consequence of the respondent’s fraud. 

With the greatest respect, that is not right.  What was determined was the finding of the plaintiff’s contributory negligence and that had nothing to do with the fraud.  He admitted that he was hopelessly drunk; he was .332 per cent blood alcohol content at the time.  That was the basis upon which the assessment of contributory negligence was made, and therefore there was still a unit constituted by the finding against the defendant – there was a defendant that was liable, even if the fraud removed the judgment from the other.  It is how that fraud is supposed to have impacted on the judgment against the driver that is the problem, and the court does not solve it.  In [89]: 

In summary the findings of responsibility for the plaintiff’s intoxication have been compromised by fraud.

The responsibility “for the plaintiff’s intoxication” - that is not correct.  It is not correct what he has said there; it is not his intoxication – his intoxication has not been compromised by fraud.  It is a question of whether ‑ ‑ ‑

KIRBY J:   Your time is up, but I would like you to deal with the second proposition, which is that, as a matter of principle, when you have set aside a premise on which you have calculated the contribution to the responsibility for the damage, that when you lose that premise, you have to go back to square one and reconsider the issue of responsibility, because a premise in the calculation has been removed. 

MR HAMPSON:   I would submit that whatever the size of the unit is, you have still fixed the contribution of the plaintiff by looking at all the matters that faced him. 

KIRBY J:   That is right, and ‑ ‑ ‑

MR HAMPSON:   All the dangers that faced him. 

KIRBY J:    ‑ ‑ ‑ until Justice Fryberg’s finding, that included the matter of the correlative responsibility of the hotel.  Whereas now that has been removed, and the suggestion that the Court of Appeal has propounded is that, in those circumstance, a premise on which responsibilities were calculated has been removed, and therefore you have to go back to square one. 

MR HAMPSON:   If I could put it this way ‑ ‑ ‑

KIRBY J:   Now, that does seem right to me, Mr Hampson, but I would like to hear why it is not. 

MR HAMPSON:   No, with respect, the first question – if you look at the arguments and you look at the authorities that are mentioned here, the first exercise – this is what the House of Lords said – Lord Ackner says it – the first thing you do is, in fact, you work out the plaintiff’s degree of contributory negligence.  You work that out by looking at the things with which he was opposed.  You fix a ‑ ‑ ‑

CALLINAN J:   For a start, I do not accept that as necessarily being correct, Mr Hampson.  I do not think that that is an appropriate way to undertake the exercise at all, and with great respect ‑ ‑ ‑

MR HAMPSON:   That is the way that the ‑ ‑ ‑

CALLINAN J:   With great respect to the House of Lords, it is not my view of it.

MR HAMPSON:   And the Court of ‑ ‑ ‑

CALLINAN J:   My view of it is that there ought to be, as the Court of Appeal said in Barisic, a comparison.  And the comparison can only be made on the basis of fresh findings after another trial. 

MR HAMPSON:   They did not do that, in that case, of course.  The only person who thought that there should be an automatic adjustment of contributory negligence, when there had been a change in identity of defendants, was Justice Hope.  In the other judgments, it does not appear that that was the case, although it was argued in that case that because of the change in identity, the bringing in of a new tortfeasor – Scott, I think his name was – that meant that there had to be a change in the assessment of contributory negligence.  That was not the basis of the decision ‑ ‑ ‑

CALLINAN J:   No, but the language of the President throughout, and at pages 128 and 129, is the language of comparison.  And I, frankly, do not see how you can make a comparison unless you know what the new factual matrix is. 

MR HAMPSON:   With respect, in the comparison that you are making in the first instance there will be a lot of things that are not necessarily to do with fault, and some of the things might be – for example, take a case of a negligent third party, or a person who has not been sued.  You have to take them into the equation to look at the totality of the situation that faced the plaintiff, even though, in fact, they are not parties at that stage. 

KIRBY J:   I think your time is up, Mr Hampson ‑ ‑ ‑

MR HAMPSON:   Unfortunately, I did not reach - - -

KIRBY J:    ‑ ‑ ‑ I have given you a little more time because it is you.  Do you want to add anything else? 

MR HAMPSON:   Only the reference to - your Honour had mentioned the Karamalis case, and in the conclusion of the joint judgment of Justices Stephen and Aickin – it is really in the second-last paragraph - it starts: 

Although in one sense the trial judge had found two factors contributing as causes of the accident, in truth they amounted only to different aspects of one factor, namely the creation of a dangerous situation, without the taking of reasonable steps to make the crossing as safe as reasonably could be, operating as one of the causes of the accident.  In those circumstances there does not appear to be any basis for interfering with the trial judge’s apportionment of thirty‑three and one-third per cent responsibility to the Commissioner, and the contribution of sixty-six and two-thirds per cent responsibility to the plaintiff’s own extreme carelessness. 

So again, that was a case where the quantum of negligence, one might have argued, changed, but it did not result in any automatic change in the assessment of the degree of contributory negligence. 

KIRBY J:   Yes, thank you, Mr Hampson.  Yes, Mr Williams. 

MR WILLIAMS:   May it please your Honours.  Dealing with the Karamalis point, the passage to which your Honours have just been referred by our learned friend appears, in our submission, at the end of the judgment, and is in essence a factual determination by their Honours Justices Stephen and Aickin.  The principle upon which the case rests is to be found in two parts - firstly, in Justice Barwick’s decision, at page 631, at line 35, where his Honour said: 

It was held by all members of the Full Court that upon the rejection of one of the bases on which the trial judge found the respondent negligent, the apportionment of the verdict by assigning degrees of responsibility should be reconsidered:  I agree. 

And in the joint judgment of Justice Stephen and Aickin, at page 634, at line 45: 

No doubt when an appellate court takes the view that one of two aspects of the defendant’s conduct did not contribute to the accident though the trial judge had thought that both did so contribute, the question of apportionment of responsibility should be re-examined. 

Justice Mason, of course, agreed in that judgment.  So it is our submission that the clear majority view in Karamalis was in terms as it has been put by your Honour Justice Kirby in argument with our learned friend. 

KIRBY J:   It was said that Chief Justice Barwick was dissenting, but I notice that, in the holding in the headnote, the headnote writer has considered that, effectively on this matter, though Chief Justice Barwick may be dissenting in the application of the principle, everyone agreed that when questions of apportionment arise because of the plaintiff’s contributory negligence, it is important to compare the position and activities of the plaintiff.  That is the first point.  Now, was there unanimity on this point of assigning degrees requiring reconsideration?  In short, is Chief Justice Barwick dissenting on that holding? 

MR WILLIAMS:    No, it is our submission, your Honour, that Chief Justice Barwick was dissenting in the outcome, but not on the principle.  His Honour went on, at page 631: 

I agree.  After the reconsideration the majority reduced the amount apportioned to the respondent from one-third to 15 per cent.  The question of assigning to the respondent a proportion of responsibility for the injuries presents, as so often does the question of apportionment, its difficulties.  It is to be assumed that the failure to provide a race at the crossing contributed to the result, though an element in the rejection of the finding of negligence in the railcar driver is the awareness of the appellant of the railcar’s presence and approach.  It is clear that by far the major responsibility for the result of that footing must rest with the appellant -

So, indeed, there, there is a comparison being undertaken –

After reflecting on the matter, I do not think there is any ground on which this court should disturb that apportionment. 

CALLINAN J:   Mr Williams, I notice that in Fitzgerald v Lane, Lord Ackner, at 339, just before the beginning of B, states the proposition that Mr Hampson relies upon but I do not know where his Lordship gets it from.  It seems to be simply an assertion.  Is there any previous authority to provide a - - -? 

MR WILLIAMS:    Barisic dealt with that to some extent.  To indicate that ‑ ‑ ‑

CALLINAN J:   No, but before Lord Ackner.  Barisic is not cited as any basis ‑ ‑ ‑

MR WILLIAMS:    It is, your Honour.  Lord Ackner, at the conclusion of his judgment, does refer to Barisic, page 345F, and refers to the “great assistance” he has obtained from that decision of Justice Samuels.  Your Honour, the point being made by his Lordship at 339, in our submission, is that before one delves into an apportionment among defendants, one looks at the plaintiff’s responsibility as a share of the total responsibility for his damage.  That is what ‑ ‑ ‑

CALLINAN J:   But I do not know whether you even have to do that.  I mean, the plaintiff succeeds once he establishes negligence against the defendant, and then the defendant succeeds on contributory negligence, once the defendant establishes contributory negligence against the plaintiff.  Why is it not appropriate then to make the comparison or, if you like, add in another defendant?  Once the plaintiff establishes negligence against defendants - it is for one or both of them to establish it against the plaintiff ‑ why cannot the comparison be made at that time?  Why should it be made as soon as – or at any earlier stage at all? 

MR WILLIAMS:    No.  Your Honour is, with respect, entirely correct, your Honour. 

CALLINAN J: It seems to me to be much more appropriate to make it when there has been a decision that there has been negligence, when all the decisions on negligence, on the existence of negligence, have been made.  I do not know how you can properly make a comparison. 

KIRBY J:   We have been rejected by Brisbane.  Mr McGowan, your opponent is in Brisbane? 

MR McGOWAN:   Yes, that is so, your Honour. 

KIRBY J:   I see.  We will just have to wait.  Here we are again.  We have re-established the link and we will not debit you with the time, Mr Williams.  We are feeling very generous. 

MR WILLIAMS:    That was a concern, your Honour, thank you.  Responding further to your Honour Justice Callinan’s last point, we submit that your Honour finds the relevant passage of the judgment of Lord Ackner at page 345, commencing at about letter C to just above letter D.  That, with respect, seems to encapsulate your Honour’s point, and that is, it is our submission, the point made in Barisic, and by necessary inference, the decision of this Court in Karamalis, that what one ‑ ‑ ‑

KIRBY J:   Leave that point for the moment.  I think we have heard what we need to on that, but what do you say about the suggestion that given Justice Fryberg’s findings, given Justice Fryberg’s indication that the second judgment was not contaminated by fraud, what is the foundation in logic for the Court of Appeal’s substituting the one for the other, in determining that both judgments have to be set aside? 

MR WILLIAMS:    Your Honours, there is a point of equilibrium, if I could call it that, reached once the primary assessment of contributory negligence is undertaken.  And that point of equilibrium is disturbed in this case once the finding of fraud is made.  It is disturbed on both sides of the scale.  On the plaintiff’s side, it is disturbed because he has lost the opportunity to diminish his responsibility for his intoxication and his negligent act by reference to the negligence of a defendant.  It is also affected on the defendant’s side of the scale, because the one defendant, which was held responsible in part for the plaintiff’s damages, is no longer present in the case to answer in that respect. 

Indeed, the finding which flows from the finding of fraud is that the plaintiff cannot explain how his intoxication came about.  The ultimate consequence is that, whereas previously the plaintiff was able to shift some

of the burden of his negligence on to a defendant, now, on both sides of the scale, that is no longer possible.  The totality of responsibility for the accident or for his damage has lessened, and his share of that responsibility must increase because he is not able to shift some of the burden to a defendant who no longer exists in the action. 

That, in our submission, encapsulates the point made by the Court of Appeal.  In our submission, it is plainly correct.  In our submission, it accords with authority.  The invitation from the applicant in this case is to fix a principle which certainly is not broken.  Your Honours are not invited to review a long line of authority which suggests that Barisic is not being applied according to its terms, or is being misunderstood by trial judges; indeed, the converse is the case.  There is no doubt about the principle ‑ ‑ ‑

KIRBY J:   You say that you cannot sever the two responsibilities because they are linked by the link of intoxication. 

MR WILLIAMS:    They are linked by that link, yes. 

KIRBY J:   And that being the case, the fraud affecting the one defendant necessarily flows over into affecting the factual matrix as it concerns the other defendant. 

MR WILLIAMS:    Exactly, your Honour, yes.  The plaintiff’s contributory negligence even as against one defendant must take account of that background fact, as to whether he can or cannot blame a defendant for part of his state.  That, in our submission, is what is meant by the legislation, where it refers to the comparative analysis between a person’s own fault and the fault of any other person or persons.  One looks at the totality of responsibility and the plaintiff’s share for it. 

KIRBY J:   Is there anything else? 

MR WILLIAMS:    No, thank you, your Honours.  Your Honours, unless you wish me to deal with the question of server liability, that is – thank you, your Honours. 

KIRBY J:   No, I think this case turns on the two points that you have debated and Mr Hampson raised.  Yes, Mr Hampson.  Is there anything in reply? 

MR HAMPSON:   Yes, on page 124 there was the other ground of the Court of Appeal and to read it, really, with the greatest respect to their Honours, is to see the lack of logic in it.  This was supposed to be the alternative ground, and it ends up the intoxication ‑ ‑ ‑

KIRBY J:   Is this paragraph [90]?   

MR HAMPSON:   Paragraph 12 to about 25, page 124. 

CALLINAN J:   Yes.  Paragraph [90], is it not, Mr Hampson? 

MR HAMPSON:   Yes, [90] of the judgment, sorry, yes.

KIRBY J:   We have had this read before.  What is the point you are making now?  You just say it is illogical.  That is the issue. 

MR HAMPSON:   It is completely illogical, but it is the same reasoning that is used with relation to the other cause.  It is said to be a different one, but it is the same logic that is used in relation to the getting to try to attack the judgment against the first defendant, through contributory negligence. 

KIRBY J:   But what is your answer to Mr Williams’ suggestion that the link between the liability of the defendants is through the alcohol, to the intoxication, to the befuddlement? 

MR WILLIAMS:    There is no link at all, with respect.  One is the question of driving, negligent driving by the first defendant; the negligence of the hotel would be failing to take proper care for the plaintiff after he had become intoxicated, and the ‑ ‑ ‑

KIRBY J:   Yes, but you can have a case where a person is so befuddled by alcohol that there is no negligence on a driver ‑ ‑ ‑

MR WILLIAMS:    If it is voluntary ‑ ‑ ‑

KIRBY J:    ‑ ‑ ‑ and therefore, the suggestion here is that all of these matters are interrelated and that the only just way of determining them, fraud now having been found, is to go back to square one and have a complete retrial. 

MR WILLIAMS:   I can only submit that with a case of voluntary intoxication as this was – no one has suggested the contrary – it does not matter, it does not affect a driver who hits the plaintiff whether the plaintiff in fact was intoxicated at home, in a park or in a hotel.  In my submission, it has just got nothing, logically, to do with it. 

The other thing I would just like to refer to - your Honour Justice Callinan said Fitzgerald v Lane, the House of Lords – I just forget

exactly the comment that was made but it was not entirely supportive by your Honour, but the passage that has been referred to is not something that Lord Ackner thought up for the first time - and the other four Lords of Appeal who agreed with him - because he went back to Davies v Swan Motor Co in 1949.  This is at the time when it is close to the bringing in of the legislation and Lord Denning’s statement there, in my submission, has been consistently acted on.  Would contributions be assessed on the – he sets out the passage, in fact: 

If they were both found guilty of ‘fault’ which caused the damage –

I will not read it because of the time complication, but what he ends up saying is: 

The Act seems to contemplate that, if the plaintiff’s own fault was one of the causes of the accident, his damages are to be reduced by the self-same amount as against any of the others whose fault was a cause of the accident, whether he sues one or more of them, and they bear the amount so reduced in the appropriate proportions as between themselves. 

Finally, when they go to Barisic v Devenport, it is clear that his Lordship was stating his assistance from the judgment of Mr Justice Samuels in Barisic’s Case.  That is what he said there.  And there are differences, as I mentioned before, in the judgments of the three members of the Court of Appeal, and that is the one we rely on, because his Honour took the classical position and proceeded in that way.  Of course, again, that was a case where there were appeals in relation to contributory negligence and negligence, before the court, different from this case.  I do not know if there is anything I can usefully add. 

KIRBY J:   Thank you, Mr Hampson.

Assuming that the special leave questions propounded by the applicant, and all of those questions, would arise if special leave were granted, the Court is not convinced that this case presents a suitable vehicle to explore them.  After the original trial before, and judgment entered by, Justice Derrington there has been a finding of fraud by Justice Fryberg tainting the judgment entered against Chevron Queensland Limited, the second respondent.

The Court of Appeal of Queensland took a wider view as to the contaminating effect of the fraud than Justice Fryberg did.  On one view Justice Fryberg went beyond the remitter to him by the Court of Appeal of issues as specified by that court.  However that may be, we are not convinced that what the Court of Appeal did, in the exercise of its powers, was wrong or that the conclusion that there should be a retrial between all of the parties on all issues was not a correct conclusion in the circumstances.

What the Court of Appeal did appears consonant with the authority of this Court in Karamalis v Commissioner of South Australian Railways (1971) 15 ALR 629 at 631. In the result, therefore, the orders made were within the Court of Appeal’s powers. We would not disturb them. The application must, therefore, be refused. The applicant must pay the respondent’s costs.

AT 2.49 PM THE MATTER WAS CONCLUDED