Joslyn v Berryman & Anor

In *Joslyn v Berryman & Anor*, the High Court of Australia considered a dispute arising from a motor vehicle accident. The appellant, Ms Joslyn, was a passenger in a vehicle driven by the first respondent, Mr Berryman, which collided with a vehicle driven by the second respondent. Ms Joslyn sustained injuries and subsequently commenced proceedings against both drivers, alleging negligence. The central issue was whether the appellant's claim was barred by the provisions of the *Civil Liability Act 2002* (NSW), specifically concerning the definition of a "passenger" and the application of the defence of voluntary assumption of risk.

The High Court was required to determine whether the appellant, as a passenger in a vehicle, could be considered to have voluntarily assumed the risk of injury arising from the driver's negligence. This involved an interpretation of the relevant provisions of the *Civil Liability Act 2002* (NSW) and the common law principles of voluntary assumption of risk. The court also had to consider whether the appellant's knowledge of the driver's intoxication, and her decision to travel in the vehicle, constituted a voluntary assumption of risk that would defeat her claim for damages.

The Court reasoned that the defence of voluntary assumption of risk requires more than merely a passenger's knowledge of a risk; it necessitates a voluntary acceptance of that risk. While the appellant was aware that the driver had consumed alcohol, the Court found that this knowledge alone did not establish that she had voluntarily assumed the risk of injury caused by the driver's negligence. The Court emphasised that the onus of proving voluntary assumption of risk rests on the defendant, and it requires a clear and unequivocal acceptance of the risk. The Court noted that the statutory provisions did not alter the fundamental common law requirements for establishing this defence.

The High Court allowed the appeal, finding that the appellant had not voluntarily assumed the risk of injury. The matter was remitted to the Supreme Court of New South Wales for determination of the quantum of damages.