Joslyn v Berryman

Case [2003] HCA 34


HIGH COURT OF AUSTRALIA

McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

Matter No S122/2002

SALLY INCH JOSLYN  APPELLANT

AND

ALLAN TROY BERRYMAN & ANOR  RESPONDENTS

Matter Nos S125/2002 and S126/2002

WENTWORTH SHIRE COUNCIL  APPELLANT

AND

ALLAN TROY BERRYMAN & ANOR  RESPONDENTS

Joslyn v Berryman

Wentworth Shire Council v Berryman

[2003] HCA 34

18 June 2003
S122/2002, S125/2002 and S126/2002

ORDER

In each matter:

1.        Appeal allowed.

2.Set aside paragraphs 1, 2 and 3 of the order of the Court of Appeal of New South Wales made on 11 April 2001.

3.Remit matter to the Court of Appeal of New South Wales for determination of the issues not so far dealt with and the cross-appeal regarding the assessment of the contributory negligence of the first respondent. 

4.First respondent to pay the costs of the appeal to this Court.

On appeal from the Supreme Court of New South Wales

Representation:

Matter No S122/2002

D F Jackson QC with G I Charteris for the appellant (instructed by McMahons National Lawyers)

M L Williams SC with P R McGuire for the first respondent (instructed by Carroll & O'Dea)

P R Garling SC with J M Morris for the second respondent (instructed by Phillips Fox)

Matter Nos S125/2002 and S126/2002

P R Garling SC with J M Morris for the appellant (instructed by Phillips Fox)

M L Williams SC with P R McGuire for the first respondent (instructed by Carroll & O'Dea)

D F Jackson QC with G I Charteris for the second respondent (instructed by McMahons National Lawyers)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Joslyn v Berryman
Wentworth Shire Council v Berryman

Negligence – Contributory negligence – Passenger in defective vehicle with intoxicated and inexperienced driver – Whether reasonable person would have foreseen a risk of serious injury – Facts and circumstances relevant to contributory negligence.

Negligence – Contributory negligence – Motor Accidents Act 1988 (NSW), s 74(2) – Whether passenger was "aware or ought to have been aware" that driver's ability was affected by alcohol – Objective or subjective test – Facts and circumstances to be taken into account.

Negligence – Contributory negligence – Motor Accidents Act 1988 (NSW), s 74(6) – Whether passenger a "voluntary passenger".

Appeal – Contributory negligence  – Application of apportionment legislation – Factual considerations – Utility of earlier judicial decisions – Whether relevant to disclose common approaches at trial and on appeal – Whether relevant to disclose purpose of statutory amendments obliging finding of contributory negligence in specified circumstances.

Words and phrases – "aware or ought to have been aware", "just and equitable in the circumstances of the case", "responsibility for the damage", "voluntary passenger".

Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 10.
Motor Accidents Act 1988 (NSW), s 74.

  1. McHUGH J. When Sally Inch Joslyn noticed that the first respondent, Allan Troy Berryman, was falling asleep at the wheel of the vehicle in which they were travelling, she insisted…

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Details
AGLC
Joslyn v Berryman [2003] HCA 34
Case
[2003] HCA 34
Decision Date

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia concerning a negligence claim arising from a motor vehicle accident. The parties were Ms Joslyn, the driver of the vehicle, and Mr Berryman, the passenger who suffered injuries. The dispute centred on the extent to which Mr Berryman's injuries were caused or contributed to by his own negligence, specifically in allowing Ms Joslyn to drive a defective vehicle while she was intoxicated and inexperienced.

The legal issues before the High Court included whether Mr Berryman was contributorily negligent by allowing Ms Joslyn to drive, given her intoxication and lack of a licence, and the vehicle's known propensity to roll. The Court was required to consider the objective test of what a reasonable person would have foreseen as a risk of serious injury in the circumstances, and whether Mr Berryman was "aware or ought to have been aware" that Ms Joslyn's ability to drive was affected by alcohol, as per s 74(2) of the *Motor Accidents Act 1988* (NSW). The Court also considered whether Mr Berryman was a "voluntary passenger" under s 74(6) of the Act.

The High Court reasoned that the Court of Appeal had erred in its assessment of contributory negligence. The Court emphasised that the question of contributory negligence involves a consideration of the facts and circumstances relevant to the plaintiff's conduct. It was held that Mr Berryman, despite his own intoxication, ought to have appreciated the risks associated with Ms Joslyn driving, particularly given her intoxication, lack of recent driving experience, and the vehicle's known defect. The Court indicated that the objective standard of a reasonable person required consideration of these factors.

The High Court allowed the appeal, setting aside the orders of the Court of Appeal. The matter was remitted back to the Court of Appeal for a determination of the remaining issues, including the assessment of Mr Berryman's contributory negligence. Ms Joslyn was ordered to pay the costs of the appeal to the High Court.

Orders

Orders of the court

In each matter:

1. Appeal allowed.

2. Set aside paragraphs 1, 2 and 3 of the order of the Court of Appeal of New South Wales made on 11 April 2001.

3. Remit matter to the Court of Appeal of New South Wales for determination of the issues not so far dealt with and the cross-appeal regarding the assessment of the contributory negligence of the first respondent.

4. First respondent to pay the costs of the appeal to this Court.

Background

Background to the litigation

This Court gave special leave to Ms Joslyn and the Council to appeal against the judgment of the Court of Appeal.The material facts The accident occurred at about 8.45am on a Sunday. Shortly before the accident Mr Berryman had been driving the vehicle. Ms Joslyn noticed that he was dozing off. She must have remonstrated with him for doing so because he said to her, "well, you drive the car then." She then took over the driving. Ms Joslyn did not have a driver's licence, having lost her licence after being convicted for driving while under the influence of intoxicating liquor. Mr Berryman knew that she had lost her licence and, according to Ms Joslyn, she had told him that she had not driven for over three years. However, the Court of Appeal appears to have accepted that he was unaware that she had not driven for three years. After driving about one kilometre, Ms Joslyn lost control of the vehicle while driving around a sharp corner. The vehicle overturned. As a result, Mr Berryman suffered serious injuries. The vehicle had a propensity to roll – having overturned on two previous occasions. Ms Joslyn did not know what speed she was travelling when the accident occurred because the speedometer of the vehicle did not work. The trial judge found that it was broken. On the previous night, Mr Berryman had gone to a party at a property near Dareton, a town in south-western New South Wales. He arrived at the party at about 9.00pm. With a short interruption, he drank alcohol until about 4.00am, when he went to sleep on the front seat of his utility. He had no further alcohol that morning. A sample of blood taken on the Sunday morning indicated that at about 8.45am he probably had a blood alcohol level of .19g/100ml. Ms Joslyn had also been a guest at the party. During the evening, she also consumed a large amount of alcohol. At about 4.30am, she was seen to be "quite drunk and staggering about". Eventually, she went to sleep on the ground beside Mr Berryman's vehicle. Later that Sunday morning, Ms Joslyn and Mr Berryman decided to drive to Mildura to have breakfast, a journey that took about 20 minutes. She had had no more than three hours sleep (and may have had only two hours sleep) before embarking on the journey which resulted in Mr Berryman's injuries. She had no further alcohol that morning. A sample of blood taken from her indicated that at about 8.45am she probably had a blood alcohol level of .138g/100ml. After Ms Joslyn and Mr Berryman had eaten, they commenced to drive back to Dareton. Mr Berryman drove until shortly before the accident. Upon these facts, Boyd-Boland ADCJ said that, having decided to stay overnight, Mr Berryman "should have contemplated his vehicle might be driven by [Ms] Joslyn". His Honour also said that Mr Berryman had had no regard to the consequences of his own alcohol consumption, and that he had allowed Ms Joslyn to drive despite his knowledge of her alcohol consumption. His Honour found that, at the time Mr Berryman allowed Ms Joslyn to drive, he was capable of taking her condition into account. His Honour also said that Mr Berryman "ought also to have realised the lack of experience and qualifications of [Ms] Joslyn particularly given his knowledge of the propensity of his vehicle to roll over."

Evidence

Evidence Before The Court

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Decision

Reasons for decision

HUGH J GUMMOW AND CALLINAN JJ HAYNE J

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Ratio Decidendi

Legal Principle Established

Established by: HUGH J, GUMMOW AND CALLINAN JJ, HAYNE J

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