Wentworth Shire Council v Berryman & Anor S98/2001 [2002] HCATrans 127 (15 March 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S91 of 2001

B e t w e e n -

SALLY INCH JOSLYN

Applicant

and

ALLAN TROY BERRYMAN

First Respondent

WENTWORTH SHIRE COUNCIL

Second Respondent

Office of the Registry

Sydney Nos S95 and S98 of 2001

B e t w e e n -

WENTWORTH SHIRE COUNCIL

Applicant

and

ALLAN TROY BERRYMAN

First Respondent

SALLY INCH JOSLYN

Second Respondent

Applications for special leave to appeal

GLEESON CJ

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 MARCH 2002, AT 10.30 AM

Copyright in the High Court of Australia

__________________

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR G.I. CHARTERIS, for the applicant in S91 and for the second respondent in the other matters. (instructed by McMahons National Lawyers)

MR M.L. WILLIAMS, SC: If the Court pleases, I appear with my learned friend, MR J.M. HENNESSY, for the first respondent in each case. (instructed by Carroll & O'Dea)

MR P.R. GARLING, SC: If the Court pleases, I appear with my learned friend, MR J.M. MORRIS, for the Wentworth Shire Council which is the second respondent in the first application and the applicant in the other two. (instructed by Phillips Fox)

GLEESON CJ: Yes, Mr Garling, and it is convenient to the parties that these matters be heard together.

MR GARLING: Yes, your Honour.

MR JACKSON: Yes, your Honour. Mr Garling and I have discussed the position. Your Honours will have seen there are applications by both original defendants. The issue common to the applications is contributory negligence. We have agreed I should go first on that issue. We are not interested in the other one, at this point anyway.

Your Honours, in relation to the question of contributory negligence, the views adopted by the Court of Appeal on this issue your Honours may see at page 96 paragraph 21. Your Honours, I will come back to it in a moment but it is submitted that special leave should be granted and your Honours will see this referred to in our summary of argument at page 115.

GLEESON CJ: Your client was the driver of the car?

MR JACKSON: Yes, your Honour.

GLEESON CJ: And you allege that the passenger, that was Mr Berryman, failed to take reasonable care for his own safety by letting your client drive.

MR JACKSON: Yes. Your Honours, we submit that special leave should be granted for two reasons, first of all, because there have been serious departures in the judgment of the Court of Appeal from the underlying facts as found by the primary judge. The second thing is that the Court of Appeal's approach to the matters to be considered on the issue is too narrow.

Your Honours, in dealing with those submissions, there are four matters to which I wish to direct the Court's attention. The first concerns the disregarding of facts found by the primary judge. Your Honours, the relevant finding may be seen at page 19, commencing at line 19, where his Honour said - and I will take your Honours in just a moment to the finding of fact that underlies this:

He had no regard to the consequences of his own alcohol consumption, but more significantly, as it turned out, despite saying in evidence he would not have allowed Miss Joslyn to drive, because of his knowledge of her alcohol consumption, he did just that.

Your Honours will see that the relevant evidence is adverted to by his Honour at page 16 commencing at about line 28 where your Honours will see his Honour saying:

The Plaintiff had said, in evidence, he would not have willingly entrusted her to the task of driving his vehicle with him as a passenger on the morning because of his knowledge of her state of sobriety at the time he went to bed.

Now, his Honour is there recounting, in a sense, a submission but your Honours will see from the reference I earlier gave at page 19 that he accepts the underlying factual statement. Now, your Honours, that is not referred to by the Court of Appeal. It showed a case of actual knowledge; not constructive, actual knowledge.

The second matter, your Honours, is that the Court of Appeal appears to have misunderstood the findings of the primary judge as to the obviousness of the effect of alcohol on the applicant's capacity to drive. Could I take your Honours to what the Court of Appeal said at page 96, paragraph 21, and your Honours will see in the first few lines of that paragraph that his Honour says:

The only action of his 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 -

your Honours will see the parenthetical observation -

a task which his Honour did not really undertake.

Now, your Honours, one also sees in the same paragraph - and I will not read it out but in the same paragraph his Honour says, about line 40:

there is no evidence that . . . at the time Mr Berryman had any reason to think that Miss Joslyn was affected by intoxication.

Your Honours will see a reference also to her showing:

no signs of intoxication.

Now, your Honours, those matters, in our submission, really are not quite correct. As to the former, and that is that the judge did not really undertake looking at the matter as at the time when she was permitted to drive, your Honours will see that there was other evidence too which the judge had referred.

Could I go first, your Honours, to page 14, in a passage between lines 11 and 37 he had referred to the degree of alcohol that she had in her blood but also the consequences of that and your Honours will see that at lines 34 through to 37. Your Honours, in relation to what might have been exhibited and what might have been seen, the fact that the judge did take into account what the situation was at the time of her - - -

GUMMOW J: Line 34, on page 14.

MR JACKSON: Yes, your Honour. That is right, your Honour. It is the last four lines in the sentence in that paragraph.

GUMMOW J: Yes.

MR JACKSON: But also, your Honours, that the judge, in fact, looked closely at the situation as at the time she was permitted to drive and your Honours will see that at page 18 in a passage which commences at line 42 and your Honours will see that he says:

I believe I am required to examine the Plaintiff's capacity to judge the condition of Miss Joslyn, over a period which started well before he went to bed on Sunday morning and continued up till the time she commenced to drive.

Then importantly, your Honours -

That includes his exposure to Miss Joslyn for the best part of one hour whilst they travelled to Mildura and back.

He goes on to say that:

he ought to have -

that is the relevant test -

recognised her capacity to drive was affected by her excess consumption of alcohol -

and fatigue and so on.

Now, your Honours, the second aspect, the obviousness of intoxication, was one where - your Honours will see the judge drew a distinction between her being obviously intoxicated on the one hand and on the other hand, what actually is the statutory test, to which I will come in a moment, recognising that the capacity to drive was affected because your Honours will see that in the passage which commences at page 15, line 44, and goes through to line 22, on page 16, what the judge was saying was that there were not signs that she was intoxicated in the sense of being drunk which is a rather different and more serious criterion.

Now, your Honours, the third thing is - and if one goes again to page 96 in paragraph 21 - the tone, if I could put it that way, of the Court of Appeal's reasons suggests that what one does is to confine the consideration of what ought to have been known by the respondent to a very narrow compass and that is - your Honours, I have been to the passage before - at the time when she took over control of the car.

Now, your Honours, in this regard we would submit there is nothing heterodox in the way in which the matter was approached by the primary judge at page 18 in the passage at the bottom of the page to which I earlier adverted.

Your Honours, the cases make it clear - and if I could just give two references - that one must look at all the circumstances in relation to contributory negligence. First, Justice Windeyer - and your Honours have a book of cases - in Sungravure Proprietary Limited v Meani. It is page 13 of the volume - page 13 at the top, your Honours - at the bottom of the page and your Honours will see, going on to the next page, page 14, the third line:

Whether a person was negligent in that sense must be determined in every case in the light of all the circumstances.

GLEESON CJ: Well, I think we have understood your argument.

MR JACKSON: Yes, your Honour, thank you. Your Honours, may I just add one thing? I am sorry to go on but there is, of course, the provision of section 74(2)(b)(ii) of the Motor Accidents Act.

GLEESON CJ: Mr Garling.

MR GARLING: I do not wish to add anything on the contributory negligence issue, your Honours, save to draw your Honours' attention to the fact that the statute does not apply to my client.

GLEESON CJ: But you want to raise another issue.

MR GARLING: Yes, your Honour, I do.

GLEESON CJ: Well, let us hear you on that one, Mr Garling.

MR GARLING: If your Honour pleases. Your Honours, the specific application which we wish to submit ought give rise to a grant of special leave relates only to my client was an application of the question of whether the illegality which surrounded the conduct of both the passenger and the driver is of a kind which meant that the road authority owed no duty to either or both of them. Your Honours, we submit that that question - - -

GLEESON CJ: When you say illegality, I mean speeding is illegal.

MR GARLING: Yes, your Honour.

GLEESON CJ: A breach of the motor traffic regulations eliminates the obligation of the authority.

MR GARLING: No, we do not put it as highly as that, your Honour, because in this case, of course, there was such an illegality. Ms Joslyn, the driver, did not hold a current driver's licence. We do not submit that that fact has anything to do with this proposition. We submit that the driving of the vehicle whilst the readings were at the level they were, which Professor Starmer, accepted by both courts below, said increased the accident risk by twentyfold, means that there is such a degree of illegality surrounding the conduct which impacted directly on this accident, in a way to which I will take your Honours in a moment to the finding, as to call into question the principles that this Court looked at in Gala v Preston as between joint participants in an illegal enterprise, as to whether that principle falls to be extended by analogy or incrementally to a third party, such as a road authority.

GLEESON CJ: Well, you are right into incremental when you are talking about degrees of illegality in terms of management of a motor vehicle. Presumably, the blood alcohol level would raise a question of degree.

MR GARLING: Yes, your Honour. Ultimately, when one looks at this Court's decision in Gala v Preston, in which each of the Justices held but for different reasons that no duty of care was owed by the driver to the passenger in that case, the test which was variously applied was whether either the relationship of proximity, which the joint judgment regarded as the general determinant, was set to one side by reason of the nature of the criminal conduct, or whether, as Justice Brennan and Justice Dawson seemed to hold, that the principal issue was whether public policy, that is to say, would the law condone a criminal activity or alternatively, would the civil law, by providing a remedy, act in condemnation of the criminal activity, whether those principles impacted in a way which meant that a duty of care did not arise.

GLEESON CJ: What was the form of negligence found against your client? Was something wrong with the camber of the road?

MR GARLING: No, it was a sign.

GLEESON CJ: A sign.

MR GARLING: At the time of constructing the road. This was a right-angled bend, your Honours, in the middle of far south-western New South Wales.

GUMMOW J: Nowhere.

MR GARLING: And a curve around which both the passenger and driver, if I may use those expressions, your Honours, had been at least twice before within the last 24 hours. It was held that had there been a sign indicating a curve or a sign indicating a curve accompanied by a speed advisory sign, then this accident would not have happened.

GLEESON CJ: These two people with the blood alcohol reading we have heard about would have taken notice and slowed down, would they?

MR GARLING: In a vehicle that had no speedometer.

GLEESON CJ: However, there is no application for leave to appeal in relation to the negligence issue.

GUMMOW J: Do not be tempted, Mr Garling.

MR GARLING: Your Honours, this was a pre-Brodie case, so that much of the debate that took place in the learned trial judge's court was a question of misfeasance of nonfeasance. But, your Honours, may I draw your Honours' attention to the specific finding at the bottom of page 95 in the Court of Appeal's judgment, which, we submit, is a relevant factual finding which makes this a suitable vehicle for examination of the principle.

At about line 40 his Honour notes that:

She -

that is a reference to the driver, Ms Joslyn -

does not remember anything after approaching the curve. On the evidence, his Honour held that she rounded the corner, not by any means at an excessive speed, but at a speed which meant that she, in the condition in which she was that morning, could not control the vehicle as it moved into the dangerous parts of the curve.

In other words, we submit, there is a finding there that the cause of this accident was centrally connected with the criminality of the conduct, that is to say the excess alcohol range in her blood which, in the passage my learned friend, Mr Jackson, took the Court to earlier, your Honours, Professor Starmer said increased the risk by twentyfold. Can I then take your Honours to page 97 of the appeal book?

GLEESON CJ: We will not take up time, but it is field of expertise, is it, to measure the quantitative increase in risk according to how much you have had to drink?

MR GARLING: Yes, your Honour.

GLEESON CJ: Yes.

MR GARLING: And the evidence that was given was not contradicted at the trial in it was founded on a series of studies both in Australia and overseas.

GUMMOW J: What would be the proposition of law you want us to embrace to elaborate or qualify Gala v Preston? What is it going to say in the headnote if you are successful?

MR GARLING: The first proposition is this, your Honour, that the proposition of law for which we contend is that in considering whether a party owes a duty of care to, in this case, a road user, a road authority does not owe any such duty where the road user - and that includes both driver and passenger, your Honours - has engaged in criminal conduct which was the cause of the accident giving rise to the claim in circumstances where, by reason of public policy because the civil law would not condone or support or give credence to a criminal activity of a serious kind.

Now, your Honours, I have not quite formulated that as precisely as the headnote writer would, but that is the thrust of the way we put it, and the question of whether that sort of illegality which the Court dealt with in Gala v Preston, as between joint participants, ought be a relevant consideration as between a participant and a non-participant is, we submit, a matter of general principle.

We submit, for reasons we set out in our written argument, Gala v Preston was a case in which the joint judgment principally turned on proximity and the application of proximity to those questions, whereas, in truth, a review of that question now would mean that it would turn, perhaps, on questions of public policy or control or matters of that kind. That is the way we put the case. If your Honours please.

GLEESON CJ: Thank you. Mr Williams, we need to hear you only on the matter of contributory negligence.

MR WILLIAMS: If your Honours please. Your Honours, the decision by the plaintiff to become a voluntary passenger, to use the terminology of section 74, was made on the spur of the moment, just a very short time before the accident occurred within a kilometre or so of the destination. As to that point, your Honours, there was no finding by the trial judge as to the relevant continuing effect of any intoxication.

GLEESON CJ: What was their reading?

MR WILLIAMS: I think .19 was the plaintiffs and I think .138 was the - - -

GLEESON CJ: What was the limit, 05?

MR WILLIAMS: Yes, your Honour.

GLEESON CJ: So, your client was about four times the limit?

MR WILLIAMS: Yes, your Honour, but what the trial judge did not do was make any finding as to the continuing effect of the intoxication at the time of the accident. There was only a finding that the reading of .19 would have had some effect on his capacity to drive, no finding on his capacity to assess Joslyn's capacity to drive the vehicle.

Now, the trial judge must have been proceeding on the assumption that he was too intoxicated to assess her capacity because his Honour had completely rejected the plaintiff's version.

GLEESON CJ: How does this work, Mr Williams? Did it mean that if you were so drunk that you cannot make a rational decision as to whether or not to allow somebody else to drive your car, you cannot be failing to take reasonable care for your own safety in allowing somebody else who is drunk to drive your car? Is that the way it works?

MR WILLIAMS: I think there have been cases to that effect, but that is not this case, your Honour, because there was not such a finding. There was simply a rejection of the plaintiff's version which was, "I don't remember anything between, in effect, going to sleep and - - -

GLEESON CJ: I know, but as I understand it, the logical consequence of this argument seems to be that if your client had been almost blind drunk, then for him to hand over the driving to somebody else could not have amounted to contributory negligence because he was too incapable to look after himself.

MR WILLIAMS: That would be the logical conclusion, but that is not what we need to establish, with respect, your Honour.

GLEESON CJ: Yes.

MR WILLIAMS: The findings at pages 18 and 19 that your Honours have been taken to establish that this is, to use the terminology expressed in Mr Jackson's argument, one of constructive knowledge, but what his Honour did was eliminate the critical question in that equation, namely that the driver was showing no signs of intoxication at the time of the handover so that even if he had been in a condition to assess it, or if there had been some positive evidence of his assessment, he would only have found that she was showing no signs of intoxication, as did all the people who saw her within a few minutes thereafter, the police officer who was trained to assess these matters and other lay witnesses whose versions were accepted completely by his Honour.

GLEESON CJ: He and she had participated in a marathon drinking session that had only ended a few hours previously, had they not?

MR WILLIAMS: Separately, your Honour, largely. As indicated, they spent very little time together. But it is important to take your Honours to the findings at page 94, paragraph 20 line 25. It reads:

At the time of this conversation he -

and a number of matters are set out, and over the next page, line 11:

At the same time, Miss Joslyn knew -

and a number of matters are set out. They are taken almost word for word from the submissions put by my learned friend, Mr Garling, to the Court of Appeal. They should be read more correctly, we would submit, with respect, as meaning not that it was established that at the time of the conversation he knew this, but that at some prior point in time he had known these matters because it was never established that at the particular time of the handover he had all these matters at the forefront of his mind or that he considered them in the course of the handover.

So, the way they are expressed there is perhaps a little misleading. Without reading the trial judge's reasons and the evidence, the untutored reader might think that means that he positively considered these matters at the time of the handover but that was not the case, your Honours.

GLEESON CJ: I notice that one of the findings was that he knew that he was in no fit state to be driving. Did he have any reason to think she would be in a better state?

MR WILLIAMS: He had no reason to consider it, your Honour, other than the evidence that had been led as to what he had concluded at an earlier stage. It is the examination of his capacity to assess her and to think about what was happening at the critical stage which is lacking in the case and which makes it an unsuitable vehicle, your Honour, even if there were some prima facie error to be demonstrated. As we have put in our outline, your Honours, the cases in which - - -

GLEESON CJ: I am looking at page 19, line 20. He said in evidence, according to Judge Boyd-Boland:

he would not have allowed Miss Joslyn to drive, because of his knowledge of her alcohol consumption - - -

MR WILLIAMS: I will just give your Honour the reference to that. I think it was a question directed to his knowledge at an earlier time. If your Honour could just bear with me for one moment.

GLEESON CJ: Judge Boyd-Boland seemed to say that his failure to take reasonable care for his own safety lay in the fact that although a few hours previously he knew what she had drunk and would not have considered her fit to drive and although it was obvious to him a few hours earlier that she would not be fit to drive the following morning, he did not turn his mind to that.

MR WILLIAMS: Yes, your Honour.

GLEESON CJ: And his failure to take care consisted in his unthinkingly handing over control of the vehicle to her in the circumstances.

MR WILLIAMS: That is not sufficient, with respect. To simply say you should have thought about it in the absence of a specific finding as to what he did think about does not take the case to the necessary conclusion that my friends require, your Honour.

As we have put in the outline, your Honour, the cases in which contributory negligence has been found in these circumstances, such as O'Neill v Chisholm, Williams v GIO and McGuire v GIO have really been limited to factual circumstances where both parties have set out on a joint drinking bout and have stayed in each other's company at all relevant times and have had the capacity to assess each other's condition and, ultimately, had a capacity to assess diminished or lost and this is not one of those cases where there were, in effect, as the Court of Appeal said, two separate parties going on and the capacity of the plaintiff to assess Ms Joslyn's ability to drive was diminished by reason of that lack of contact between the two. They are the matters that we would put, your Honours.

GLEESON CJ: We do not need to hear you, Mr Jackson.

In these matters, there will be a grant of special leave to appeal limited in each case to the contributory negligence issue. In relation to the other issue, the Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave.

Are there separate questions of costs in relation to that other issue?

MR GARLING: No, your Honour.

GLEESON CJ: We will adjourn for a short time to reconstitute.

AT 10.59 AM THE MATTERS WERE CONCLUDED