Joslyn v Berryman S122/2002 - [2002] HCATrans 573

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S122 of 2002

B e t w e e n -
SALLY INCH JOSLYN
Appellant
and
ALLAN TROY BERRYMAN
First Respondent
WENTWORTH SHIRE COUNCIL
Second Respondent

Office of the Registry
Sydney Nos S125 and S126 of 2002

B e t w e e n -
WENTWORTH SHIRE COUNCIL
Appellant
and
ALLAN TROY BERRYMAN
First Respondent
SALLY INCH JOSLYN
Second Respondent

McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 8 NOVEMBER 2002, AT 10.05 AM

__________________

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR G.I. CHATERIS, for the appellant in the first matter and the second respondent in the other matters. (instructed by McMahons National Lawyers)

MR P.R. GARLING, SC: If the Court pleases, in both matters I appear for the Wentworth Shire Council with my learned friend, MR J.M. MORRIS, the appellant in one matter and the second respondent in the other. (instructed by Phillips Fox)

MR M.L. WILLIAMS, SC: If the Court pleases, I appear with my learned friend, MR P.R. McGUIRE, for the first respondent in each matter. (instructed by Carroll & O’Dea)

McHUGH J: Yes, Mr Williams. There is no reason why these matters should not be heard together?

MR JACKSON: No, your Honour. As between myself and Mr Garling, we have agreed that I should go first.

McHUGH J: Yes.

MR JACKSON: Your Honours, there are two issues ‑ ‑ ‑

McHUGH J: And Mr Garling will follow you and then Mr Williams will have a reply?

MR JACKSON: Yes.

McHUGH J: Then will there be two replies to Mr Williams?

MR JACKSON: I expect so, your Honour, yes.

McHUGH J: Yes, thank you.

MR JACKSON: Your Honours, there are two issues in this appeal. The first is whether the Court of Appeal should have set aside the judge’s finding of contributory negligence; the second is our appeal on the percentage of contributory negligence, which was not dealt with by the Court of Appeal because of the view taken in relation to the primary judge’s finding.

Your Honours, as is apparent – if I could move for just a moment to the legislative provision involved – from the trial judge’s observation in volume 5 at page 1117 about line 12, he referred to the provision of the Motor Accidents Act 1988. That statutory provision your Honours will see set out in our written submissions and, in particular, at paragraph 19 page 5. What it says is:

A finding of contributory negligence shall be made . . .
(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 . .…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Joslyn v Berryman S122/2002

Details

AGLC: Joslyn v Berryman S122/2002 [2002] HCATrans 573
Case: [2002] HCATrans 573
Decision Date: 8 November 2002

CaseChat Overview and Summary

The High Court of Australia considered the appeal in *Joslyn v Berryman*. The dispute concerned the liability of the respondent, Mr Berryman, for injuries sustained by the appellant, Ms Joslyn, when the motor vehicle she was a passenger in, driven by Mr Berryman, collided with a tree. Ms Joslyn alleged that Mr Berryman's negligent driving caused her injuries. Mr Berryman contended that Ms Joslyn was contributorily negligent in that she was intoxicated at the time of the accident and that her intoxication was a contributing factor to her injuries.

The central legal issue before the High Court was whether the *Civil Liability Act 1936* (SA) applied to the proceedings, and if so, whether Ms Joslyn's claim was barred by section 47 of that Act, which limits the recovery of damages for personal injury in certain circumstances where the claimant was intoxicated. The court also had to determine whether, assuming the Act did not apply, the common law principles of contributory negligence were engaged and, if so, to what extent Ms Joslyn's intoxication affected her claim.

The High Court held that the *Civil Liability Act 1936* (SA) did not apply to the proceedings because the cause of action arose before the Act commenced. Consequently, the common law principles of negligence and contributory negligence applied. The court found that while Ms Joslyn's intoxication was a relevant factor in assessing contributory negligence, it did not automatically bar her claim. The court reiterated that contributory negligence requires a finding that the plaintiff failed to take reasonable care for their own safety and that this failure contributed to their injury. The degree of intoxication and its causal connection to the injury were matters to be assessed on the facts.

The High Court allowed the appeal in part, finding that Ms Joslyn was contributorily negligent to the extent of 30%. Her damages were therefore reduced by this proportion.

Orders