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High Court of Australia Transcripts |
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
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. 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 . . . and the injured person . . . was aware, or ought to have been aware, of the impairment.
Now, your Honours, that provision was not referred to in the Court of Appeal but your Honours will see that it requires consideration, both of what was in fact known by the injured person and what ought to have been known by the injured person.
Could I come, your Honours, to the basic facts. They are set out in our written submissions in paragraphs 6 to 9, and may I take your Honours to those.
CALLINAN J: I am sorry to interrupt, Mr Jackson. Where is the defence of volenti abolished?
MR JACKSON: Your Honour, I do not think there was one.
CALLINAN J: No, I know, but does not the trial judge say on that - - -
McHUGH J: We were told - sorry, somewhere in there - - -
MR JACKSON: Yes, your Honour. I think he was reciting - giving vent to some knowledge, as it were.
CALLINAN J: He is not referring to any statutory provision?
MR JACKSON: Only in the negative sense of saying that it had been abolished.
CALLINAN J: Well, that is what I was looking for, whether there was any enactment which abolished it.
MR JACKSON: Section 76 of the same Act, your Honour.
CALLINAN J: Section 76. Thank you.
MR JACKSON: Your Honours, if I could go for a moment to our written submissions in paragraphs 6 to 9 on page 2. You will see the basic circumstances. The appellant was driving the Toyota Hilux. It overturned when taking a right-hand bend in a particular road. The first respondent was a passenger and was very badly injured. The appellant had been driving for only a few minutes before the accident. She had taken over the driving because she noticed he was dozing off, and the primary judge's finding is then referred to. They swapped.
The judge found that her negligence in control of the vehicle was a cause, so too was that of the Wentworth Shire Council, for whom Mr Garling appears, in relation to signposting. Then your Honours will see the result of the case summarised by the Court of Appeal set out in paragraph 9 and your Honours will see the apportionment of liability as between my learned friend, Mr Williams' client, on the one hand, and the defendants in the case. There was a 25 per cent finding of contributory negligence and then the division of responsibility amongst defendants was 90 per cent to us and 10 per cent to the Council.
Your Honours, the central part of the Court of Appeal's reasoning can be seen in one paragraph in volume 5 at page 1189, paragraph 21. I will come in just a moment to the - - -
KIRBY J: Did Justice Meagher refer to the Motor Accidents Act 1965 provision?
MR JACKSON: No.
KIRBY J: I looked and looked again but I could not see any reference to it or to the Miscellaneous Provisions Act.
MR JACKSON: No, your Honour.
KIRBY J: Was his attention directed to the Act?
MR JACKSON: Your Honour, I cannot say that that was specifically done but I referred your Honours earlier to the fact that it was referred to in the judgment below of the trial judge when starting to deal with the question of contributory negligence and it is very difficult to imagine that the provision was not mentioned in the case.
KIRBY J: Well, it is also difficult to imagine that the Court of Appeal would not have it referred to from time to time in other cases, but I must admit I did not know the provision until I read it in the submissions.
MR JACKSON: Yes. Your Honour, I do not know that I can take it beyond that, but one might wonder really how far it changes the law, relevantly speaking, except for saying that as a statutory obligation one must make a finding of that kind.
KIRBY J: It changes it, as this Court keeps saying, if there is a statute that speaks. It is the duty of judges and lawyers to attend to the statute. No one seems to pay any attention to the fact we say it in virtually every second case.
MR JACKSON: I am sorry, your Honour. I endeavoured to refer to it as the first thing I referred to.
KIRBY J: I am not blaming you. I am just curious that once again we find that the judges and lawyers have just resorted to generalities of the common law instead of dealing with the statute that governed the matter.
McHUGH J: It probably does make a change in the law, perhaps not from a practical point of view, but at common law it was necessary for the plaintiff to know of the impairment whereas the statute provides it is sufficient that the plaintiff ought to have been aware of the impairment.
Now, in certain circumstances, one might be able to attribute negligence, for instance in failing to inquire, but that is a different type of contributory negligence. For instance, if somebody is going to be picked up by a driver and a person is aware that that person had been in a hotel or club, it may be that if the person just got in the car and made no inquiries that would constitute contributory negligence, but that would be because of a failure to inquire, I would have thought.
MR JACKSON: Your Honour, in one sense, the two aspects of the approach can be seen in the Insurance Commissioner v Joyce where one of the members of the Court said that if one had disabled oneself by drink from appreciating the situation then that would amount to capable of being contributory negligence. On the other hand, as Justice Dixon said, that would not be so in every case. Both observations were probably in fact directed to the same result but differently expressed.
Your Honour, we would say that the situation - we accept the starting point is the statute, but it is just a question, really, of what one looks at to see. Your Honours, could I go on to say that the central part of the Court of Appeal's reasons, paragraph 21 at page 1189 - - -
KIRBY J: Can I just add to what Justice McHugh said about the statute, that the opening words in the umbrella talk of:
A finding of contributory negligence shall be made -
Now, at least reading that in isolation, one gets a bit of an impression that the purpose of Parliament was to address what it might have felt was a reluctance on the part of courts to find contributory negligence in these cases and an instruction from the Parliament that in the circumstances referred to, the finding "shall be made". That is addressed not only to the trial judge but also to the Court of Appeal.
MR JACKSON: Yes, quite, your Honour. Your Honour, if one goes to the reasoning of the Court of Appeal - I intend to attack it, if I may say, with respect, in detail a little later, but may I just refer your Honours to what was said. Now, his Honour said at paragraph 21:
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 - - -
McHUGH J: That cannot be right, can it? That is not the contributory negligence. Permitting Ms Joslyn to drive instead of him is not contributory negligence. The contributory negligence is permitting somebody who is not fit to drive.
MR JACKSON: Yes, your Honour, I accept that. To be fair to his Honour, what he is really saying is - and I suppose one bears in mind the nature of the arguments that perhaps he was dealing with - that you have to look at things - this is the next sentence:
at the time of handing over control of the car, (not as they were in the previous 24 hours), a task which his Honour did not really undertake. One must also, if one concludes that at the time of handing over Mr Berryman was too drunk to appreciate what was happening, a situation as to which there is no evidence in the present case, judge the question of contributory negligence on the hypothesis that the plaintiff did have sufficient foresight to make reasonable judgments. But, although at the time of the accident the blood alcohol levels . . . were estimated as being 0.138g/100ml and 0.19g/100ml respectively, there is no evidence that either of them were drunk at the time, and certainly no evidence that at the time Mr Berryman had any reason to think that Miss Joslyn was affected by intoxication.
If I could just say one thing in passing, when his Honour is speaking of "no evidence that either of them were drunk at the time" - - -
CALLINAN J: What is wrong with the blood alcohol content? Why is that not evidence of drunkenness?
MR JACKSON: Of course, your Honour. Could I just say that there was evidence which the trial judge accepted which demonstrated the effects of it. I was going to say that by the expression "drunk" his Honour must have been meaning, in a sense, observably affected by alcohol: falling over, the bloodshot eyes, the - - -
CALLINAN J: Short of being legless?
MR JACKSON: Yes, your Honour. His Honour said, indeed, quite - - -
KIRBY J: This seems to have been the point on which the case turned, that his Honour seems to have thought that true it is that we now know that Ms Joslyn was greatly affected, but there was evidence that other people said that she did not appear to be so. What you really have to establish, I think, is that it came to the knowledge of Mr Berryman. I do not take you out of your track, but that seems to be the way his Honour said, "All right, she was very profoundly affected, the blood alcohol shows that, everything else shows it, but how is to say that Mr Berryman knew?"
MR JACKSON: Well, can I just say, your Honour, if one leaves aside the more, I suppose, academically interesting aspects of the case, the view taken by the Court of Appeal seems to leave out of account what appears at pages 1120 and 1121 in the primary judge's reasons. What appears there, your Honours, is this, that at earlier parts of his reasons he had referred to the question whether he should or should not accept the evidence given by the respondent that he had no recollection of events from the time of going to bed the night before or earlier that morning to the time after the accident. Now, he disbelieved him on that and he went on to say at the bottom of page 1120 about line 42:
In this case I believe I am required to examine the Plaintiff's capacity to judge the condition of Miss Joslyn -
and he refers to the period and he said at the bottom of that page, the last two lines:
The evidence I have recited shows that in that time he ought to have recognised her capacity to drive was affected by her excess consumption of alcohol - - -
GUMMOW J: That is the words of the statute.
MR JACKSON: Yes, your Honour.
GUMMOW J: "Ought to be recognised".
MR JACKSON: Yes.
McHUGH J: As far as I am aware it has never been doubted that in determining whether a person is guilty of contributory negligence you are entitled to take into account that person's historical knowledge of the situation or past events. If you are driving up to a level crossing and there is no train present, you do not escape liability because there was - a finding of contributory negligence because there was no train there, if there is a short bend and you know the trains run there.
MR JACKSON: Your Honour, the descriptions of what constitutes contributory negligence adopted in this Court and elsewhere refer to contributory negligence being the departure from the standard of care in all the circumstances. The expression one commonly sees. Your Honour, could I just stay for a moment with page 1121. Your Honours will then see in the next paragraph commencing at line 10 his Honour, when it comes down to about line 21, says:
It was obvious to him before he went to sleep that Miss Joslyn would not be fit to drive on the following morning. I believe, at the time of change over of drivers, he did not consider that issue, but should have done so and was capable of so doing.
So, what he was saying is - - -
KIRBY J: I am sorry, which page was that one?
MR JACKSON: Page 1121, your Honour. It is the passage that is from about line 20 to line 24 in volume 5.
McHUGH J: What do you identify as the act of contributory negligence? Do you confine yourself solely to the handing over of the driving at the time, or do you go back to an anterior point of time where he embarked on this journey to Mildura and back knowing or, on one view arguably, ought to have known of the problems that embarking on that journey itself might create?
MR JACKSON: Your Honour, we do both I think, is probably the correct thing to say. But of course it really perhaps in the end does not matter because what one has to start from is the damage that was suffered because that is what contributory negligence relates to, to the suffering, in a sense, the damage. Now, the damage of course was the injury, and that occurred at a time when Miss Joslyn was driving. Now, in relation - - -
HAYNE J: But the contrib lies not in the particular conduct of Mr Berryman, surely, but in his failure to advert.
MR JACKSON: Yes, your Honour.
HAYNE J: And to seek to identify a particular conduct as contrib seems to unduly narrow the focus. It is the failure to advert.
MR JACKSON: That is where, your Honours, the Court of Appeal, in our submission, was in error. Your Honours, I am going to go back in just a moment to the way in which the issue was dealt at first instance. That is why one sees, in a sense, a focus being put on the actual event. May I come back to that in just a moment, your Honour. Just if I could stay with page 1121 for a moment, and between lines 20 and 25. What the judge is saying in the context of what took place was that - he said:
It was obvious to him before he went to sleep that Miss Joslyn would not be fit to drive on the following morning.
You will see also the preceding sentence which reflects his evidence, and then he goes on to say:
I believe -
and this involves disbelieving the plaintiff to some degree -
at the time of change over of drivers, he did not consider that issue, but should have done so and was capable of so doing.
So, your Honour, that amounts to a finding as to the extent of his incapacity at that time. Now, your Honours, that really is the end of the case, in our submission, because the judge has found that he should have done something, he was capable of doing it, and did not. Your Honours, that is the one very short aspect of it.
May I go back to the Court of Appeal's reasons at page 1189 and your Honours will see that a number of features are referred to. Could I just deal with those, your Honours, first of all going back to the start of the paragraph.
Now, your Honours, in one sense, of course, one must give some attention to matters at the time of handing over the driving because that is when things started to come undone in the real sense. But to look at that does not mean that one leaves out of account the person's condition and what ought to have been the person's knowledge of the condition of the person with whom they consented to drive. Your Honours, in order to satisfy the statutory test, one must do that.
The second thing, your Honours, is if one goes to about line 29 and it is a little unclear precisely what is meant by the sentence commencing on line 29, there was evidence that he was affected by drink and fatigue. I mentioned that there was evidence given by Professor Starmer but you will see it particularly in his oral evidence - if I could go to volume 3. I wanted to give your Honours four short passages in his evidence.
KIRBY J: Which page?
MR JACKSON: Page 758 in volume 3, your Honour. Your Honours will see at page 758, lines 30 to 40, he was asked:
And in effect what you say is that, as I understand it, in some people with a level of .05 their they will be impaired if they were driving a car.
A. Yes. Most people will be slightly impaired, some will not be impaired at all. The reason that you have the 05 limit is from very large, you know hundreds of thousands of population . . . to cut a long story short across the whole population crash risk is increased twofold at .05. It's increased fourfold at .08 and then the curve sort of the stands on its end. It's an exponential.
And your Honours will see the next question and answer. Now, from there, your Honours, one goes to page 762 and could I just commence by saying that Professor Starmer's report had not dealt with the situation of the respondent. When he gave oral evidence there was available material showing what the blood alcohol level had been at a later time and he works back from there. Your Honours will see that - I am looking at the left of the page, so it is 762 about line 17:
at the time of the accident . . . he would have been about .19 -
and, your Honours, bear in mind that what I am about to refer your Honours to is that these are questions asked by his own counsel at the time:
I want to suggest to you that in addition to the alcohol reading that he was considerably fatigued, that is he was literally falling asleep at the wheel?
A. Yes, that again is not surprising. Many of the manifestations of fatigue and alcohol intoxication are quite similar and there's plenty of evidence including some of our own to indicate that fatigue and alcohol potentiate one another in a manner that's more than an additive -
I think he means more than being simply added together -
as far as driving abilities is concerned.
That goes through, your Honours, to about line 46. Then at page 763 again he was asked:
What I want to ask your views about, having dealt with this with you on many previous occasions, the capacity of someone in Mr Berryman's position to assess the intoxication of the driver would itself have been significantly impaired given the reading of .19 and the presence of fatigue?
A . . . that is very drunk indeed for most people.
And then, your Honours, finally, page 764 about line 40 through to page 765 about line 28 - to take your Honours first to page 764 he agreed at line 55 that with the:
blood alcohol level of .19 and the fatigue his capacity to assess the risk of letting her drive would have been very significantly impaired -
He agreed to that. At the top of the next page, it did not surprise him that he fell asleep and then in the next answer it was one where he agreed with the proposition that his:
cognitive functioning -
at that level would have been -
very compromised -
and your Honours will see the passage goes through, in effect, to about line 30.
HAYNE J: That evidence may bear, may it, upon whether in terms of 74(2)(b)(ii) he was aware of impairment?
MR JACKSON: Yes.
HAYNE J: How does it relate, if at all, to the other aspect, "ought to have been aware"?
MR JACKSON: It relates to it in this way, your Honour, that the situation in which he found himself was one that was entirely self-induced, if I can put it that way, first of all. It was self-induced by the combination of alcohol and fatigue and it was also in circumstances where he was familiar with the fact that the person who was about to become the driver had been engaged in a similar situation the night before and the finding was that she went to bed, as it were, later than he did, but at the time when he went to bed, all the people who were still there were staggeringly drunk.
HAYNE J: Does "ought to have been aware", on your submission, engage a test of a sober, reasonable observer?
MR JACKSON: Yes, your Honour. Now, I say that with a qualification, your Honour, and the qualification is if one had circumstances where, for example, a person who had been to a wedding reception was engaging public transport to go home, then the test may remain the same, but it may not. I am sorry, I am putting that very badly, your Honour.
What I am trying to say is that one has to take into account the fact that there are situations where, in the nature of ordinary life, people will have had too much alcohol or people may be affected by some drug they are taking, but are perfectly entitled to take public transport, public or other transport. But in the ordinary course of events the answer is yes, your Honours.
Now, your Honours, I was going to say then, if one goes to the events which had taken place before, they are summarised in our written submissions in paragraph 21, giving the references to the passages of evidence. He had gone "gone to bed at about 4.00 am" - - -
KIRBY J: Now, is there a flaw in your argument that "by the time he went to bed everyone he could see at the party was basically staggering drunk themselves" without including, necessarily Ms Joslyn amongst them? How do we know that he saw her staggeringly drunk? Why should one infer that?
MR JACKSON: Because what he said - - -
KIRBY J: There are some people who stand out from alcohol parties, especially if they have to drive; it is not uncommon now, at least in the circles I mix in.
MR JACKSON: Your Honour, I always leave early, I would not know; the first to leave. Your Honours, page 148 in volume 1, lines 15 to 20, he was asked:
Q. By the time you went to bed, the people who were still at the party were all staggering drunk, weren't they?
KIRBY J: Could you give me the page again, I am sorry.
MR JACKSON: Page 148, your Honour, in volume 1.
KIRBY J: I must be getting a bit deaf, Mr Jackson.
GUMMOW J: You are.
KIRBY J: There is no need for my colleagues to agree; sometimes it is a mercy. Which line?
MR JACKSON: Your Honour, page 148, lines 15 to 20.
KIRBY J: I see. Well, she is included.
MR JACKSON: And your Honours will see further down the page he expressed himself as having difficulties of recall. That seems not to have been accepted by the judge.
KIRBY J: He says:
I can't recall.
Now where was that no accepted?
MR JACKSON: Could we give your Honour a reference in just a moment to that?
KIRBY J: Yes. Did the judge specifically find as a fact that he knew that at the party she was one with the other young women who were staggeringly drunk?
MR JACKSON: Yes, your Honour.
HAYNE J: Page 155 line 21 is his assumption.
GUMMOW J: He assumed that she was - - -
MR JACKSON: Yes, your Honour. I am sorry, may I give your Honour a reference to that a little later?
KIRBY J: Yes, certainly, because that, as I understand it, was the flaw that his Honour felt was left in your evidence, that all right, we now know she was drunk, because the blood alcohol shows that, and we now know what that means, but he did not know it, or may not have known it. You had not proved it and you bear the onus of proof on this issue.
MR JACKSON: Well, your Honour, there is a lengthy discussion of the evidence, including, for example, page 1112 in volume 5, line 29, where Miss Deane's evidence is referred to. She said Miss Joslyn was "definitely drunk".
McHUGH J: But, in the Court of Appeal, Justice Meagher said that Berryman knew that Joslyn had been drinking the night before and he knew she would probably still be intoxicated.
MR JACKSON: Yes, your Honour.
CALLINAN J: Well he spent the night drinking with her. They drank until after midnight and then they went to her house and continued drinking. She had had her licence suspended, because she had been drinking, and she took a full bottle of whisky with her to the party. If he did not know about her propensity, in those circumstances, he was blind and deaf.
KIRBY J: But propensities do not prove actuality on a particular occasion.
CALLINAN J: Well the empty bottle of Grants Whisky was pretty significant.
KIRBY J: It might have been stolen by some other person. It does happen.
MR JACKSON: I am sorry, your Honour, I am dealing with - - -
GUMMOW J: Anyhow, he assumed it at 155, as Justice Hayne said, line 25.
MR JACKSON: Yes. May I endeavour to give your Honour Justice Kirby the reference in the reasons a little later on, when I just find the precise passage I was after. The point I was seeking to make is that you will see in paragraph 21 we refer to the various passages of evidence and your Honour will also see the reference to page 150, lines 17 to 20, where he said from what he saw of her on the night of the accident he probably would not have willingly allowed her to drive his vehicle the next day because she would probably be intoxicated.
If I could go back then to the views adopted by the Court of Appeal at page 1189 in volume 5, your Honours will see what is said at about line 29:
a situation as to which there is no evidence in the present case -
Your Honours, there was the finding in relation to Professor Starmer's evidence as to the levels of alcohol in the blood and also there was the oral evidence of Professor Starmer to which I referred which was adduced from his own side. There was also the finding to which I referred at page 1121, line 20, that:
it was obvious to him before he went to sleep that -
the appellant -
would not be fit to drive on the following morning.
Your Honours, the aspect that is referred to at the last few lines of page 1189, namely:
Of the people who were present who gave evidence -
this is after the accident -
all said that Ms Joslyn showed no signs of intoxication. His Honour so found.
That is not, with respect, quite right. It is not quite right in two respects. The first is that the witnesses did not all say that she showed no sign of intoxication. You will see a summary of the evidence at page 1117, line 44 through to page 1118, about line 21. As to the witnesses who are referred to there, Mr Smythe's evidence is at about page 327 in volume 2. What he was asked and answered was simply this - he was a local farmer who lived nearby and came out - at line 40 on page 327:
Q. Did she appear to be intoxicated to you?
A. Not to me. I didn't really look at that.
That was all he said. Mr Walker was referred to. His evidence is at pages 340 through to 343. He was not asked anything about it.
As Your Honours will see from the judge's observation at page 1118, line 14, the question was not specifically put to her. That is the first aspect of it. The actual finding that the judge made was that it was:
unlikely she was exhibiting . . . obvious signs of intoxication.
KIRBY J: Where is that again?
MR JACKSON: Your Honour, that is 1118, line 21. Now, your Honours, in our submission, this was a case where if one added together the events that had taken place, the findings that were made by the judge, one had a situation where there ought to have been a finding of contributory negligence. Your Honours, there is nothing very new in that, if I may say so, with respect.
Could I take your Honours to two cases dealing with somewhat similar situations, two decisions in the New South Wales Court of Appeal, and one of them, your Honour Justice Kirby was a member of the Court. The first is Maguire v Government Insurance Office New South Wales - - -
McHUGH J: But how will these cases help us? They are only questions of fact.
MR JACKSON: They are, your Honour. All I wanted to say is that they refer to the fact that knowledge obtained by seeing a person drink and by oneself being in a condition where one's capacity to judge the appropriateness of that person driving following the drinking is a matter which goes to contributory negligence.
Your Honours, I wanted to refer to Maguire 11 MVR 385. It was a case where there was a family picnic which in the end turned to tragedy because the father cut his foot; a friend who had been at the picnic was driving the car to take him to hospital; the car, again, did not negotiate a bend and the father became a quadriplegic.
McHUGH J: No wonder the case law system is breaking down when you have reports reporting cases like this. It is just unbelievable.
GUMMOW J: This case is reported in volume 33 of the Motor Vehicle Reports 441.
KIRBY J: I think those who work in rarefied atmospheres do not understand that these reports are sometimes useful to get the feel of where the law stands in particular courts and helps insurers and solicitors who deal with these cases, so we should not be too snobbish about law reports.
McHUGH J: Well, it is not a matter of being snobbish. It is a question as to whether the law develops properly. They did not report juries' verdicts and that is all these cases are.
KIRBY J: What were you saying, Mr Jackson?
MR JACKSON: Not a lot, your Honour.
McHUGH J: Yes, you are interrupting us, Mr Jackson.
KIRBY J: Forgive me, too.
MR JACKSON: Your Honour, could I refer to page 388, and I wanted to refer to about line 10 and, "They lead to the view that Smith", who was the driver, "had imbibed 14 middies during the afternoon." Now, what was said then was:
Having regard to that fact, to the evidence that he had been drinking during the afternoon and that he had failed to negotiate a relatively simple corner . . . must be accepted -
he was affected by alcohol. Now, your Honour, it is the next paragraph that matters. His Honour said:
That, of course, does not mean that the appellant was guilty of contributory negligence. It was necessary for his Honour also to reach a conclusion that the insobriety of Smith was such that the appellant knew or ought to have known of his unfitness to drive the vehicle.
Then, your Honours will see - I will not read it out - through the remainder of that paragraph, the view that the appellant ought to have been alive to the fact that he was in no fit state to drive the vehicle. He did not know why he failed to recognise that but that is beside the point.
Your Honours, the other case to which I wish to refer is Williams v Government Insurance Office (New South Wales) (1995) 21 MVR 148. Your Honour Justice Kirby - there was a difference of view as to the appropriate proportion, but there are some passages to which I wish to refer. At page 151, about line 38, your Honour said:
I am not inclined to spend much time on these complaints . . . This is because I consider that there was ample evidence to sustain the conclusion of the primary judge that the appellant knew that Ms Southwell was, at the least, affected by alcohol.
Your Honour referred to the fact that there had been observation of her drinking during the day:
The possibility, indeed high probability, that this would be likely to affect, to some degree, the driving of Ms Southwell, is, I consider, beyond argument. To the extent that the appellant was unaware of that fact, her lack of comprehension could only be attributed to her own advanced state of intoxication.
Now, your Honours, that really goes on through to the end of the first paragraph on page 152 and then after that your Honour goes on to a discussion of the principles applicable at the bottom of page 152 and noticing particularly the last four or five lines on 152:
if the passenger agrees to accompany a driver on a journey, after participating with the driver in the consumption of alcoholic beverages, sufficient to affect the driver's capacity to drive properly and carefully and the passenger's capacity to think clearly and to perceive the obligation of self-protection, this will amount to a partial cause of the passenger's damage -
Then, your Honours, a little further down that paragraph, about line 7:
If the passenger complains he or she was not able to observe the state of intoxication of the driver, and if that inability were itself the result of a common course of intoxication, it would be open to the court to determine that the injured person has, to some extent, suffered damage as a result partly of his or her own fault -
Your Honours, could I refer also to what was said by Justice Cole of whose reasons Justice Meagher agreed at page 161 and, in particular, your Honours, between about lines 13 to 16:
If the appellant saw the driver drinking approximately a dozen middies, she must have appreciated that, being affected by alcohol as the driver admitted, her driving would be affected.
Could I note one thing in passing, your Honours. On page 162 there is a quotation from Podrebersek v Australian Iron & Steel which was adopted by this Court in Bankstown Foundry, as his Honour there refers to, but it makes it clear that in relation to the contributory negligence, it is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.
Your Honours, in relation to speaking more generally about looking at all the circumstances, could I give your Honours another reference and that is to Sungravure Pty Limited v Meani (1964) 110 CLR at 24. Justice Windeyer at the bottom of page 36 referred to Baron Alderson in Blyth v Birmingham Waterworks Co and said:
"Negligence is the omission to do something which a reasonable man guided upon those considerations -
et cetera. Then the third line on page 37:
Whether a person was negligent in that sense must be determined in every case in the light of all the circumstances.
Now, your Honours, there is nothing very surprising about that but, equally, there is nothing new about the proposition.
Your Honours, could we say that our learned friends have given reference to a number of citations in their written submissions and in particular in paragraphs 11 to 13 to the effect - - -
McHUGH J: I notice in Meani's Case Justice Windeyer says that:
Negligence is, in every case, a question of fact. In no case can the answer to that question be found in words, however eloquent, uttered by judges, however eminent, about the facts of some other case.
MR JACKSON: Your Honour.
KIRBY J: I said a similar thing in dissent in the case of Unver v Liftronic because everybody was applying Podrebersek as if it is some great principle in every factual situation and this Court seems to have done that in that case, with respect.
MR JACKSON: May I come to that aspect of it in just a moment in dealing with the cross-appeal, as it were. I just wanted to say in relation to our learned friends' submissions in paragraphs 11 and 12 of their written submissions which emphasise that the driver has to be obviously drunk or visibly drunk or visibly under the influence. Those are observations made in relation to the circumstances of the particular cases in which the issue arose and it does not affect the general proposition which we have been seeking to advance.
Those are the submissions I wanted to make orally in relation to the question of contributory - the Court of Appeal's approach. May I go then to the question of apportionment. Our appeal of course on apportionment was not dealt with by the Court of Appeal. The trial judge's view on apportionment and on the proportions appears at page 1121.
KIRBY J: Could you help me. Would the apportionment that you argue for be levied on the recoverable sum or on the $750,000? That is to say, is it on the theoretical or the recoverable verdict?
MR JACKSON: We are up for the lot, your Honour.
KIRBY J: On the big verdict, the $2 million?
MR JACKSON: Yes.
KIRBY J: Does it matter in this case?
MR JACKSON: Well, your Honour, it matters to us, and no doubt to my learned friend Mr Williams' client, because, so far as we are concerned, the amount for which we are liable, as your Honours will see from the passage we have extracted in paragraph 9 of our written submissions, for $1.99 million. The Shire Council was liable for ultimately $750,000 but, as between us and the Council, it is 90 per cent against us, 10 per cent against the Council. In endeavouring to recover his full amount against us if one takes, say, 25 per cent away from the 1.99 million, you get the figure of 1.496.
KIRBY J: Had the extended jurisdiction been obtained as against one defendant but not the other? Is that what happened?
MR JACKSON: Yes, they had not obtained a consent order to unlimited jurisdiction in the case of - I am sorry, it was unlimited under the Motor Accidents Act as against us but limited as against the Council for other reasons, in particular consent having been obtained.
KIRBY J: So that this is a live issue in the judgment against you?
MR JACKSON: Yes. Simply so far as the trial judge was concerned, half a million dollars is involved. Because the verdict against us is effectively $2 million, one can see, readily speaking, that every 10 per cent means $200,000, to put it shortly, for us or against the respondent. I was going to say in relation to this issue, at page 1121 commencing at line 30, your Honours will see that he said:
My assessment of the degree of the Plaintiff's contributory negligence has been reduced from what it would otherwise be because I find, on the basis of the evidence to which Mr Barry referred and I recorded earlier, at the time of the hand-over Miss Joslyn exhibited none of the obvious signs of intoxication which one would expect to be present. That, it seems to me, could have influenced the Plaintiff if he had properly put his mind to the issue of Miss Joslyn's capacity. It warrants a reduction in the assessment of his contributory negligence which, but for that factor, I would have fixed at 33?%.
The point we would seek to make is this - - -
KIRBY J: But if you take the point Justice Hayne mentioned earlier, you have to look at whether he adverted to his own safety and the point of the handover is not the only or critical time. It may even be, as Justice McHugh said, setting out on this journey.
MR JACKSON: Yes, your Honour. It is where a variety of things could take place. Could we just say that if one took the narrow view in a sense adopted by the primary judge there, what in essence he is saying is that he would have made an apportionment of 33?% if she had been showing obvious signs of intoxication. If a person set out on a journey with a person showing obvious signs of intoxication, then, in our submission, the apportionment should have been much higher against the person doing so than in a case where the person - I will start again. If one entered a vehicle with a driver showing obvious signs of intoxication, the amount of contributory negligence should be, in our submission, at least 50 per cent.
GUMMOW J: We are construing section 74(3) or the Motor Accidents Act, are we not, or applying it?
MR JACKSON: Yes, your Honour.
GUMMOW J: The words "just and equitable in the circumstances of the case".
HAYNE J: Is the assessment of contrib relevantly governed wholly by considerations in 74(2)? Is 74(1) engaged in respect, for example, to questions of whether she was known to be unlicensed, whether the vice of the particular car should have been alerted? How does all that marry with 74(8)? The judge here confines his attention to intoxication, and there seemed to be a whole swirl of other matters at trial that may - they may not - have borne on questions of contributory negligence: the vice of the car, unlicensed, et cetera.
MR JACKSON: Your Honour, could I say first of all what one sees in relation to section 74 is that by the operation of subsections (1) and (8) continues in operation, except as provided by the section, the general law. When I say the general law, of course one does have to bear in mind that that itself in a sense is affected by statute because otherwise contributory negligence would have been defence. But what the provisions of subsections (2) and (3) do is in the first place - and there is overlapping between them. What one sees in subsection (2) is that it refers to a number of circumstances where a finding of contributory negligence has to be made. They include in paragraph (b) the circumstance where the injured person was a voluntary passenger and the driver's ability was impaired as a consequence of the consumption of alcohol and the injured person was or ought to have been aware of that.
KIRBY J: Does the second reading speech explain why this rather specific provision was included in the Act?
MR JACKSON: I cannot give your Honour an answer to that.
KIRBY J: Was it to cure a perceived unwillingness of judges to respond appropriately to the issue of intoxicated driving?
MR JACKSON: Your Honour, no doubt that was a reason, but I cannot give your Honour an answer to what was said in the second reading speech. Your Honour will recall that this - - -
KIRBY J: Maybe too many judges were regarding this as merriment. That is what Justice Meagher described it, merriment. Merriment, when you get behind wheels, can be very dangerous to not only yourself but others.
MR JACKSON: Yes, I do not suggest otherwise. There may have been - would your Honour excuse me just a moment?
GUMMOW J: Does your grant of leave encompass this? If it does, maybe it should not have. Or, to put it another way, maybe it should go back. Why should we be the first appellate court mulling over - - -
MR JACKSON: I think what your Honour is referring to is to the - your Honour, my recollection of what took place in the special leave application was that the reason why the condition that you see at page 1197 was inserted was that an argument was presented by my learned friend, Mr Garling, dealing with joint criminal venture, as it were.
GUMMOW J: That is right.
MR JACKSON: And that special leave was not granted in relation to that.
GUMMOW J: That is right.
MR JACKSON: Now, your Honour, my understanding of it was that the special leave was otherwise not limited.
HAYNE J: If we were to conclude that the Court of Appeal was wrong to reduce, that would leave undetermined your appeal to the Court of Appeal?
MR JACKSON: Yes.
HAYNE J: Why should that not go back for the Court of Appeal to determine afresh in light of this Court setting aside, if that is where we get to, the conclusion of reducing - - -
MR JACKSON: Well, your Honour, I recognise that the Court may do that, of course, but the reason why it should not, in our submission, is simply that this is a case turning on found basic facts and it is one where, in our submission, it would be appropriate for the Court to dispose of it now.
McHUGH J: But your leave was confined to the contributory negligence issue. You cannot read that as referring to the question of apportionment, can you?
GUMMOW J: You are talking to one of the authors.
KIRBY J: In terms of principle, if we are courts of error and we are correcting the error, we would simply send it back so that they can do it because they have much more experience in these things than we do.
MR JACKSON: Your Honour, could I say in relation to the two aspects that have been raised, first of all, the ambit of the special leave, our submission is that if one looks at what took place at the special leave application that the expression "contributory negligence issue" was used to describe the issues other than the joint criminality issue that was sought to be raised by our learned friends. If we are wrong about that, we are wrong about it, and if that happens the matter would go back to the Court of Appeal - I am sorry, your Honour, the situation which obtains assuming we are correct about that is one where the Court has power to remit it to Court of Appeal but, your Honours, it is a case, in our submission, where, in the interests of the parties it would be better to bring it to an end now, otherwise than by removing special leave on that point.
McHUGH J: But it would require this Court then to examine, on one view of the law, all the evidence in the case concerning Ms Joslyn, about matters such as her knowledge of the speedometer in the vehicle not working, the circumstances in which it was not working. I do not know whether that is dealt with, whether he knew it. He claimed it was working, did he not? But there are all these - - -
MR JACKSON: Well, the finding that it was not, your Honour.
McHUGH J: The finding was it was not working, yes, but there would be all these factual issues. It is a question of culpability in the sense of departure from the standard of the reasonable man and everything has to be concerned. It is a question of moral culpability in the way that expression has been explained by this Court.
MR JACKSON: Your Honour, I do not know that I can take it beyond that. That is what we would submit and if the Court were - - -
McHUGH J: Mr Jackson, I think the view of - - -
KIRBY J: Presumably it would be heard by a differently constituted Court of Appeal because this Court has expressed a view which would be difficult for them to substitute a different view which was significantly different from zero per cent.
MR JACKSON: Yes, your Honour.
McHUGH J: Yes. Well, by majority, Mr Jackson, we will only deal with the contributory negligence issue, that is to say, whether there was any contributory negligence on the part of the plaintiff and if you are successful then the matter will be removed to the Court of Appeal to deal with the issues that remain to be dealt with.
MR JACKSON: Your Honour, there is only one more thing I wanted to say about that and that was to indicate to your Honours how the issue arose, as it were, before the primary judge. Your Honours will see, if I can just go to page 1117 in volume 5 and commencing at about line 22, the argument put in that paragraph that the issue of contributory negligence:
could only be addressed by reference to a consideration of the conditions existing at the time the prospect of someone else driving became a relevant consideration -
and that submission is elaborated upon in the next two paragraphs.
The submission to the contrary one then sees in the paragraph commencing on page 1118, about line 23, and that goes through the remainder of that paragraph and if I could pass over the reference to the cases that appear on the remainder of that page and page 1119 and 1120. We come to page 1120, line 42, where the judge gives his reasons. He said:
I believe I am required to examine the Plaintiff's capacity to judge the condition . . . over -
the longer period, and that is where he proceeds to go on to deal with the issue. So your Honours will see how, in a sense, the question was focused on the one hand on do you look at the moment of changeover or do you look at the broader issue?
Your Honours, those are our submissions.
McHUGH J: Yes, thank you. Yes, Mr Garling.
MR GARLING: Your Honours, the case at trial on contributory negligence was run in a way that there was no difference of substance between the positions of my client and the position of Mr Jackson's client on the matters. I do have a needs to draw your Honours' attention to a difference in the statutory regime but which when one examines the different statutes do not in fact reflect any difference of substance, in our respectful submission.
Your Honours, I need to do two things in order to - - -
KIRBY J: So, there is the word "shall" in the Motor Vehicles Act. It is a command of Parliament whereas in your Act it is simply left to the discretion of the judge.
MR GARLING: That is so, your Honour, but in this case that it what I would describe as a threshold question: "Do the facts of this case pass the threshold where a finding ought to be made?" Once one gets to that there is no difference of substance between the imposition of the obligatory and the test.
Your Honours may be well familiar with the Law Reform (Miscellaneous Provisions) Act in New South Wales which had section 10 which introduced the contributory negligence.
GUMMOW J: It does not assume that we all are. They talk about other things in other States.
MR GARLING: I did introduce the word by using the word "may", your Honour.
GUMMOW J: All right.
MR GARLING: but I wanted to provide to your Honours copies of that original Act because that was the section in force at the time the trial judge gave his judgment. Between the time the trial judge gave his judgment and the Court of Appeal gave its judgment that section was repealed and replaced by section 9 of the Law Reform (Miscellaneous Provisions) Amendment Act 2000 which in New South Wales has been commonly referred to as the Astley amendment, your Honours, which was an amendment of the legislation consequent upon the decision of this Court in Astley v Austrust dealing with contributory negligence in the realm of contract.
Although the words of the two sections are different, in my respectful submission, there is no difference in the substance of what they provide. May I hand to your Honours so there is no confusion about it copies of both of those Acts.
KIRBY J: Whilst that is being given out, do you know of your own knowledge what was said in the second reading speech concerning the insertion of that instruction relating to motor vehicle contributory negligence?
MR GARLING: No, I am sorry, your Honour, I do not and I have not looked at it for the purpose of this case.
KIRBY J: If that could be found and sent in I would be appreciative of that because it does seem very imperative language, at least to somebody who does not know the detail of what was behind it. It seems to be responding to a problem. It is unusual to see such specificity. Why did Parliament feel it was necessary to give such a command to judges?
MR GARLING: One can glean some guidance in that area, your Honour, from the fact that the Motor Accidents Act 1988 when it came in contained within it, I think, at about section 3 or 4 or thereabouts, in the very early part of it, a statement of the objectives, or the objects of the Act, which was quite an unusual piece of statute at the time. One of those objects was to ensure - I put it generally, your Honour - an affordable scheme of compulsory insurance in the motor vehicle area. So that one could certainly understand that the Act itself which introduced a restrictive scheme of damages in Part VI and which introduced a variety of - may I call them - mandatory deductions for contributory negligence, dealing with the failure to wear seatbelts, intoxication and so on, might be seen to be reflected in those objects. Might I just draw your Honours' attention to section 10 of the 1965 Act. Subsection (1) provides:
Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage:
Your Honours, the balance of that subsection is not of any relevance to this particular case.
GUMMOW J: Now, section 10 is picked up by 74(1), is that how it works?
MR GARLING: Yes.
GUMMOW J: This is the enacted law being spoken of in 74(1).
MR GARLING: Yes, that is so in my understanding, your Honour. Your Honours, section 9 of the 2000 Act provides:
(1) If a person (the "claimant") suffers damage as the result partly of the claimant's failure to take reasonable care ("contributory negligence") and partly of the wrong of any other person:
(a) a claim . . . is not defeated . . .
(b) the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share . . .
There seems to us, your Honours, to be what I might call stylistic or drafting differences but no difference in substance.
Your Honours, other than drawing your Honours' attention to that difference as it applies in the way in which the claim for contributory negligence was put in this case, we adopt what my learned friend, Mr Jackson, put and we are content to rely on our written submissions.
McHUGH J: Yes, thank you, Mr Garling. Yes, Mr Williams.
MR WILLIAMS: Your Honours, there are three areas that we wish to address. Firstly, the question of whether the respondent could be guilty of contributory negligence when the appellant was showing no signs of intoxication at the time that she started to drive, remembering that the question is not what caused the accident but his share of responsibility for the damage that he suffered.
GUMMOW J: Wait a minute. Are you supporting paragraph 21 of the Court of Appeal's judgment?
MR WILLIAMS: Yes, your Honour. The second and related matter, your Honours, is whether - - -
GUMMOW J: Are you putting other reasons in addition to paragraph 21 of the Court of Appeal's judgment?
MR WILLIAMS: Yes, your Honour. The second and related question is whether the respondent's impaired capacity to assess the appellant's ability to drive precludes a finding of contributory negligence. The third question is the apportionment but I no longer need to deal with that, your Honours.
We have dealt with the first topic at paragraphs 8 to 13 of our written submissions. The starting point, your Honours, is the finding that was well based on the evidence, that at the time of changing drivers, the appellant was unlikely to have been exhibiting - to the respondent, that is - obvious signs of intoxication. Your Honours have been taken to that finding at page 1118. We stress that it was not just to the respondent, it was to the sober, and in the case of a policeman, an experienced observer, that no such signs were visible.
KIRBY J: Where is that, that is to say, the police evidence?
MR WILLIAMS: It is Constable Favelle, your Honour, and I will just have a reference turned up to Constable Favelle. It is referred to at page 1118. I will have his evidence turned up in a moment, if I may.
KIRBY J: At some stage you are going to have to deal with the question of whether if the judgment of contributory negligence is decided on all of the facts and circumstances, the Court of Appeal was correct to say you have to judge it at that point of changeover because, on one view, the process of contributing negligently to his own injury occurred before that.
MR WILLIAMS: Our primary point is that one has to judge it at the time of the changeover, your Honour.
McHUGH J: Yes, but you also have to deal with his question of his historic knowledge?
MR WILLIAMS: Well, can I come to deal with that, your Honour?
McHUGH J: Yes.
CALLINAN J: Well, why does she have to be showing signs at all? She must have been - and let us not put too fine a word on it - drunk. She must have been drunk. If you look at the blood alcohol content, she must have been drunk at the time. It would not have mattered how she disguised that. Any person with any understanding at all of alcohol would know that she must have been seriously affected.
KIRBY J: Your case, as I understand it - and that was embraced by the Court of Appeal - is that that is retrospective wisdom?
MR WILLIAMS: Yes.
KIRBY J: We know now that she had this blood alcohol, but your client did not know that. He was too preoccupied with his own merriment, as it is put, and he cannot be fixed with that knowledge of the exact extent of her intoxication and you have the finding of the primary judge that she appeared not to be intoxicated?
MR WILLIAMS: And it was a spur of the moment decision, your Honours, and I need to take your Honours to some of the cases and this is where, with respect, we differ from Mr Jackson. They are not, with respect, simply statements applicable to the facts of each case. They are considered statements by intermediate courts of appeal in the various States as to the way in which the various tests should be applied.
HAYNE J: Well, can we start with the statute?
MR WILLIAMS: Yes, your Honour.
HAYNE J: The relevant question is, was he aware or ought he to have been aware of impairment? Do you accept that?
MR WILLIAMS: Yes, your Honour.
HAYNE J: Assuming he was not aware, what test is engaged by the words "ought to have been aware"?
MR WILLIAMS: Whether, at the time she said to him, "You're falling asleep", and he said, "Why don't you drive then.", at that particular moment he can be held to have considered all the various matters that were put to him about his knowledge earlier on during the evening before he went to sleep, and that is why this case is so different, with respect. All the cases that have been referred to on both sides deal with cases where the parties have generally been engaged in joint drinking bouts, to use the term that is used in some of the cases, where they have either gone to a party saying, one person is going to be the sober driver, and he breaks that promise, and the designated driver ends up getting drunk and taking someone home, and the accident happens, or the parties just set out on a joint drinking spree, irrespective of what was going to happen at the end of the day. As far back as Joyce one can see the court saying, "Well, there is a basis for contributory negligence there", but we would submit that the facts here are different.
McHUGH J: But it is an objective test, is it not? So that assumes a reasonable person. So the test is: would a reasonable person have, at the time of the changeover, had regard to all the circumstances that were known about the appellant?
MR WILLIAMS: And the first thing that he would think of is that they had been together for an hour and three quarters or so, having had some hours sleep, they had been driving around Mildura, going to McDonalds, ordering food, driving to another location, eating it and driving back the best part of the way to the party. They are the matters that he had taken into account.
McHUGH J: It would not be the only matter he would take into account. I mean, this was almost a drinking binge. They start on the Friday evening, drinking at two hotels in Wentworth, he gets home at 1 am with the appellant, he is intoxicated, they start again the next day at 6.30 and they are drinking, the appellant is drinking till somewhere around 4 am the next morning and your client is perhaps even drinking later.
MR WILLIAMS: No, there was a finding that he went to bed before Miss Joslyn.
CALLINAN J: There is a finding, is there not, or there is certainly evidence that at 4.30 am she was quite drunk and staggering about.
MR WILLIAMS: But he was asleep by that stage, your Honour, that was the finding.
CALLINAN J: Well, he went to sleep about 4 o'clock, so one doubts whether she would have been much different at 4 o'clock.
MR WILLIAMS: We do not cavil with all these matters, your Honours, but the point is that at no time until this spur of the moment decision was made did he ever have any cause to contemplate that he may become a passenger in a car driven by her.
McHUGH J: Well, the reasonable man would know what has happened to him. He cannot drive.
MR WILLIAMS: But he had been driving, your Honour.
McHUGH J: Well, I know he had been and he had to give it up and he was handing over a car which, on the judge's finding, did not have a speedometer, to a woman who had not driven for several years, who had no licence - - -
CALLINAN J: With whom he had been drinking the night before, to the stage of drunkenness, one might reasonably - - -
MR WILLIAMS: Not, with respect, drinking with her; drinking at a party where she was and - - -
CALLINAN J: Did he not go home to her house?
MR WILLIAMS: The night before?
CALLINAN J: Yes, the night before.
MR WILLIAMS: The night before, but not at - - -
CALLINAN J: No, but, I mean, he had spent some hours drinking with her the night before. It is not an unreasonable inference that they had both got drunk together the night before. She would have been hung-over, as he would have been, and then the next day they spend at least seven hours drinking in close proximity to each other.
MR WILLIAMS: Well, she was there some time before - - -
CALLINAN J: If you told an ordinary member in the community that they were not drunk and that nobody would have noticed that they were both drunk, nobody would believe you.
MR WILLIAMS: Professor Starmer was talking about the usual run of scientific evidence. People may not believe that someone shows no signs of intoxication after a long night on the drink.
CALLINAN J: But it has been pointed out. Really, you are putting far too much emphasis, I think, upon "signs". I mean, some people disguise it much better than others, but if you know how much somebody has drunk, or you ought to know how much somebody has drunk, it does not matter what signs they are manifesting.
MR WILLIAMS: Well, could I take your Honours to some of the cases because, in our submission, authority of this Court and other courts suggest that it is necessary for the driver to be exhibiting obvious signs, if I can perhaps put it tautologically, of intoxication. The starting point is the decision of the Court in Joyce 177 CLR. That, of course, was an unusual case in that neither the plaintiff nor the defendant gave evidence, but the plaintiff was found in the car shortly after the accident.
McHUGH J: It is not unusual.
MR WILLIAMS: And the driver was - - -
McHUGH J: I was once in a case where the plaintiff and the defendant were both in court and neither entered the witness box - Bondarenko v Sommers.
MR WILLIAMS: Yes, that happens often, your Honour, that the driver was found asleep under the lantana bushes a couple of hours later. But the Chief Justice at page 47 at about point 5, your Honours, said - this was in the light of an assumption that they had been drinking for two hours before the accident. They had left her home sober at 5 o'clock and the accident happened at about 7 o'clock. At about point 5 the Chief Justice said:
But the drunken condition of Kettle just before the accident - - -
GUMMOW J: Now, the words are "could not be expected to perceive".
MR WILLIAMS: It may not have been obvious. Now, if they had been drinking together for two hours, then one would have expected him to perceive that he was drunk but we highlight the use of the word "obvious" there, your Honour.
We take your Honours next to O'Neill v Chisholm which, as far as we can see, is probably the last time this Court has had to consider drink driving in contributory negligence on its own. This is where, again, the parties had been at a hotel for some three to four hours together playing pool. There was a finding of contributory negligence to the extent of one third. At page 2, the Chief Justice said at about point C on the left hand side of the page:
It has been established that it may be held that a person who becomes a passenger in a car to be driven by a person who is visibly so far under the influence of intoxicating liquor that his judgment and skill in the management of the car on the roadway are likely to be substantially affected, has shown lack of care for his own safety -
we stress the word "visible" there, your Honours.
HAYNE J: Yes, his Honour goes on to say:
As I see the case, no question of law arises on this appeal.
MR WILLIAMS: Exactly, but we submit that it is important to your Honours to have regard to these statements and statements of intermediate courts of appeal.
McHUGH J: But they are just statements of fact. Use of the word "obvious", question the word "visible". They are not questions of law, they do not state any principles of law.
MR WILLIAMS: We accept that, your Honours, but they are firm indications of the way in which this Court and other courts have interpreted similar legislation.
HAYNE J: Apt to the case where all the information available to he passenger is simply the observable state of the driver. Here the difficulty you confront is that the information available to the person alleged to be contributorily negligent is of the entire history.
MR WILLIAMS: We have dealt, we trust, sufficiently in paragraph 6 of our outline, your Honours, with the times at which those various items of fact or knowledge were brought to his attention. In that sense, Justice Meagher in the Court of Appeal was not putting matters quite accurately, we would submit, because what his Honour said was at the time of the changeover the respondent knew all of those matters. Well, in a theoretical sense, perhaps that is right, but what was not established was that at the time of the changeover he had actually turned his mind to considering all those various matters which would have been a solid foundation for a finding of contributory negligence if it could have been established, but that is what he was doing.
McHUGH J: But the argument you have to meet is that all those matters were within his knowledge and ought to have been considered by him.
MR WILLIAMS: Not in the circumstances where he is fatigued, where his capacity to assess her ability was very substantially impaired, although, as Professor Starmer said, "not entirely removed". His capacity to assess her was very, very compromised.
HAYNE J: But this is shifting the point of reference. You are shifting the point of reference to him in his state.
McHUGH J: Yes.
HAYNE J: That is why, do you accept that the point of reference is a sober, reasonable person when we are applying the "ought to have been aware" test?
MR WILLIAMS: No, with respect, your Honour, because there is no reason why he was not allowed to have a drink because he never expected that he would be a passenger in her car until this spur of the moment decision was made, so it has to be a person in his circumstances going to a party, he is entitled to have a drink, and - if I can take your Honours to the decision of the Court of Appeal in Queensland in McPherson v Whitfield - until there was some reasonably foreseeable specific risk to his safety, then it does not matter what he thought or knew, with respect. Again, this was a case where the parties had been drinking together over several hours at various locations. If I could take your Honours to the judgment of Justice Lee at pages 483 and 484, at about line 20 on page 484 his Honour said:
But those cases in which the plaintiff's conduct in rendering himself incapable of assessing the driver's condition has itself been considered contributorily negligent, have necessarily involved the existence of a foreseeable risk of injury to the passenger at a time when the relevant capacity existed. This is turn has generally required proof of the existence of facts
"which would lead a reasonable person to anticipate the likelihood of the driver becoming intoxicated and which would therefore require him for his own protection to remain sober enough to assess the driver's condition."
That second part of the quotation comes from the judgment of the Full Court in South Australia in the judgment of the Chief Justice.
HAYNE J: And that in the context of a designated driver.
MR WILLIAMS: In Banovic v Perkovic?
HAYNE J: In McPherson.
MR WILLIAMS: I think not, your Honour. I will just check that.
HAYNE J: Or at least not the owner of the car lending the car to another.
MR WILLIAMS: The facts are set out at page 476. I do not recall any suggestion of designated driver in the case, just simply that they had been drinking together for some time and they decided to go home in Boaler's car, the man who was driving initially. I would also go to the bottom of page 478 at about line 35 in the judgment of the Chief Justice in McPherson. Commencing at line 37 his Honour said:
If a person should reasonably foresee that he may subsequently be confronted by the necessity to choose whether or not he will travel as a passenger in a car driven by an intoxicated driver, but nevertheless imprudently proceeds to drink to excess . . . reducing his ability to make a reasonably careful decision when the occasion does arise, he may well -
be guilty of contributory negligence. The preconditions for such a finding have not been established here, with respect, because there was no reason for him to foresee that he may have to choose whether he would be a passenger in a car driven by the appellant until the very last moment.
GUMMOW J: What was the issue in McPherson?
MR WILLIAMS: To put it shortly, your Honour, contributory negligence.
GUMMOW J: Well, the extent of it.
MR WILLIAMS: At page 477, your Honour, it is set out that the principal issue was contributory negligence.
McHUGH J: But the whole theory of the law of contributory negligence is that the plaintiff must comply with the same standard of care as a defendant after allowing for the fact that the defendant must take reasonable care for the safety of others and the plaintiff must take reasonable care for his or her own safety. I mean, your case would be laughed out of court if you had been driving and in circumstances the same as the appellant and you had injured somebody and it would be no excuse to say, "I had forgotten about all these things". It is an objective standard.
MR WILLIAMS: But that is precisely, with respect, the point that the Chief Justice goes on to address in McPherson at about line 46. Your Honour says this is a different situation from that in which a person will be placed where he allows himself to become intoxicated in circumstances where no reasonably foreseeable specific risk to his safety should have been apparent to him. If, in those circumstances, while lacking relevant conscious awareness, he is placed into or induced to enter into a car, he should not, on that account, be held responsible for failure to take care of his own safety and that is the point that we - - -
McHUGH J: If you read it literally, it introduces a completely subjective test into the law of contributory negligence. Contributory negligence has two limbs, what you know and what you ought to have known, and your problem is you have to face up to what you ought to have known.
MR WILLIAMS: But what you ought to have known, given what has gone before, your Honour, and if what has gone before is that his capacity to make a decision about her ability to drive is impaired, then that needs to be taken into account, if there was no reason for him to think that he should have been retaining his full capacity to assess her beforehand.
McHUGH J: Well, apart from the special case of children, the question of a person's age or mental capacity is not relevant, is it?
MR WILLIAMS: Generally, your Honour, yes.
McHUGH J: Yes.
MR WILLIAMS: But we have set out at paragraph 16 of the outline the matters that we point to in support of the proposition that there was no reason for him to be anticipating that he would be a passenger in her car at some relevant time.
Can I answer your Honour Justice Gummow's question about McPherson. The finding of contributory negligence there was 20 per cent and there was no argument by the plaintiff that it should be reduced. It was simply the defendant seeking to increase the finding.
GUMMOW J: That is right, and the relevant principles are set out by Chief Justice Macrossan at page 478 line 33 and following and it seems entirely orthodox.
MR WILLIAMS: Yes, your Honour.
GUMMOW J: What:
can be expected of the reasonable man in the circumstances as they present - - -
MR WILLIAMS: Could I deal with your Honour Justice McHugh's point about objective and subjective tests. At page 483 in McPherson at line 12 his Honour said:
unlike the approach adopted where the defence of volenti is raised, the court is required to undertake an essentially objective inquiry into the circumstances . . . and, in particular, the plaintiff's conduct in relation to it. That is not to say, however, that subjective elements do not have a role to play. To the contrary, as in the case of most objective inquiries the law recognises the artificiality of maintaining a completely detached position and it is for this reason that the plaintiff's conduct falls to be judged by reference to all of the surrounding circumstances, including factors . . . such as his age, maturity and mental capacity -
and that is McHale v Watson -
It is all too often forgotten that the reasonable person is not some perfectly standardised creature whose persona and characteristics are expected to be immutable. Nor by the same token is he required to have some single pre-determined reaction to every fact situation which he may be asked to confront.
So, there is an element of subjectivity in it we would say, with respect, your Honours.
Could we take your Honours to a decision of the Full Court of the Federal Court in Nominal Defendant v Saunders 8 MVR. The plaintiff there had been injured in a motor accident at about 8.00 pm. He had been into central Canberra in the Civic area during the day with the intention of getting drunk with some friends. He spent some time with the driver and the trial judge found that at the time that he got into the car shortly before the accident he was so well affected that he did not make any observation of the driver and did not take into account the risk of travelling with an intoxicated driver. At page 213 at line 45 the Full Court accepted the trial judge's findings that the passenger:
was "too stupid to observe the manifest intoxication of -
the driver -
and that the signs . . . "were there for the plaintiff to see but he was too drunk to see them".
In a sense a little stronger than this case because the driver was undoubtedly showing signs. The Full Court upheld the trial judge's finding that there was no contributory negligence because the plaintiff had not:
when sober, set out on a drinking spree with -
the driver. That is at page 216, your Honours, about point 1 on the page.
McHUGH J: That is a decision that may have to be overruled.
GUMMOW J: Did Justice Fox say anything relevant on this question? Yes, the first paragraph on 210 seems orthodox, does it not?
MR WILLIAMS: Yes:
The first requirement mentioned is subjective, but will of course often be determined by inference.
A question was raised earlier as to whether the Court of Appeal considered or were taken to the terms of the statute. We have looked at the written submissions of all parties that were put to the Court of Appeal and there is mention of the Motor Accidents Act but no specific mention of the terms of the section but it is hard, with respect, to imagine that the Court of Appeal would not have been mindful of the terms of the Act, particularly - - -
KIRBY J: It is not hard if you sit here, I am afraid, because we see it every second day. Lawyers do not like statutes but love the words of judges, which is a high compliment, but we are sick of it.
MR WILLIAMS: But as your Honour would know, the Court of Appeal deals with questions of contributory negligence and drink-driving very regularly.
KIRBY J: Yes, but I am troubled by the terms. You read some of these cases and then you read what Parliament in New South Wales has done, and you see the mandatory language "shall" and you see "ought to have" brought in, in express terms. All of that appears to be evidencing a purpose on the part of the Parliament to toughen judges up, where there is intoxication on the part of the driver, which the passenger knew or ought to have known, to find contributory negligence.
MR WILLIAMS: There is, with respect, no relevant difference between the terms of the Motor Accidents Act and the terms of both the old and the new Law Reform Act.
KIRBY J: I am not sure about that. That is why I want to see what the Minister said in introducing the - that Act, I dimly recall, at the time was really cutting back on claimants' right. It was just one of those provisions.
MR WILLIAMS: But as your Honour will see, the old section 10 of the Contributory Negligence Act uses the word "shall".
KIRBY J: Yes, but it does not have this subparagraph dealing with "ought". It is that:
was aware, or ought to have been aware, of the impairment.
It is a very particular provision.
MR WILLIAMS: But that is encompassed, we would submit, by the test set out in the old section 10 and encompassed in the way in which courts in other jurisdictions have considered that test, that is if - - -
KIRBY J: Where is the seatbelt provision?
McHUGH J: It is in subsection (1), is it not, or subsection (2)(c)?
KIRBY J: I see, yes. See that, by inference, is a response to the fact that judges were not deducting anything or enough in those cases.
McHUGH J: The same with (2)(a). An automatic conviction was automatic evidence of contributory negligence unless you satisfied the court that the concentration of alcohol did not contribute to the accident.
MR WILLIAMS: But in practical terms they are, with respect, no different than findings that would be made - - -
KIRBY J: Except that you have a judge in the Court of Appeal who, in the face of a finding by the trial judge of 25 per cent and in apparent defiance of the will of the Parliament expressed in the mandatory terms, has reduced it to zero. Now, that just seems to fly in the face of the very purpose of the New South Wales Parliament in enacting section 74 in the terms that it did.
MR WILLIAMS: What the Court of Appeal was doing, we would submit, was saying there was no basis for a finding of contributory negligence.
KIRBY J: But if it is only "ought to have known" and if he is in what has been described as a binge, starting on a Friday night and extending over a very long time, and seeing the appellant around the place, it just defies credulity to say that he would not have known that she was significantly affected. Maybe he did not know that she had that very, very high blood alcohol, but common experience tells you different people manifest intoxication in different ways. It just seems to defy the express instruction of Parliament. Justice Meagher does not respond to that. He does not deal with it at all. It may not be his Honour's fault. Maybe, as usual, the barristers never referred to the Act.
MR WILLIAMS: It is important to guard, with respect, against rolling up the whole of the circumstances without having regard to what we were reminded of by McPherson v Whitfield, that is - - -
KIRBY J: Yes, but you see you want to get down to just the very precise thing of what he knew. The law is that you look at contributory negligence in the broad, you look at the whole, just as you look at negligence - - -
MR WILLIAMS: Precisely, but one looks at his capacity, we would submit, to assess her ability to drive at that stage. We know his capacity to assess things was, if not entirely removed, very substantially compromised. Looking at that alone, we would submit, justified the Court of Appeal saying that there was no basis for the finding of contributory negligence.
HAYNE J: Can I understand that proposition? Is it a proposition that unless there was an obvious sign of intoxication at the time of changeover, it was not open to conclude that he ought to have been aware. Is that put?
MR WILLIAMS: That is one part of it, your Honour.
HAYNE J: The second part appears to be that because of his condition it was not open to conclude that he ought to have been aware.
MR WILLIAMS: Yes, your Honour.
HAYNE J: They seem to be rather large propositions, but do I accurately capture the two limbs of the argument?
MR WILLIAMS: Yes, they are the two points that we put, your Honour, and we put that they are supported by consideration of the issue in other cases.
McHUGH J: You rely on the statement of principle in Saunders at 215 where Justice Spender and Justice Miles reject the proposition that:
an objective standard measured by what would have been observed by a reasonable person in the position of the passenger unaffected by insobriety?
MR WILLIAMS: Could I just pick up that reference, your Honour?
McHUGH J: It is 215 at line 30. If that is the law then the drunker you are the better off you are.
MR WILLIAMS: Their Honours set out sufficient answers to that proposition.
McHUGH J: Yes, I know, their Honours reject that proposition, and I understand you to rely on it, and it supports your argument.
MR WILLIAMS: Your Honours, we recognise the community's abhorrence for drink driving, we do not shrink from that, but the respondent is not here to be punished for his drinking or for his drink driving, because that did not cause an accident. Any culpability of his is to be assessed, we would submit, on the basis that he allowed the appellant to drive at a time when his capacity to assess her condition was significantly impaired, and therefore he should not be found guilty of contributory negligence. If your Honours please.
McHUGH J: Thank you, Mr Williams. Yes, Mr Garling?
MR GARLING: I have nothing to put for the respondent. I adopt what my learned friend.....
McHUGH J: In advance? That is a dangerous course.
MR JACKSON: Well, it may be, your Honour. It may be perhaps just for one reason and that is, your Honour, it occurred to me as I was sitting down that when your Honour Justice Hayne was asking a question about section 74, and your Honour referred to section 74(3), I wondered if your Honour was looking at a provision which is referred to in the submissions of our learned friend Mr Garling at the conclusion in the list of provisions. There is a reference to section 74(2) and section 74(3). Section 74(3) as there referred to is rather similar to section 74(2) but that provision was not in force at the relevant time.
KIRBY J: I am sorry, I am getting a bit lost now.
MR JACKSON: I am sorry, your Honour. Could I invite your Honours to go to submissions on behalf of the Wentworth Shire Council and to the document annexed to it following page 11. You will see that it has at the bottom of the first page of the annexures, Motor Accidents Act , section 74. Now, you will see it has subsections (1) and (2) and then there is a subsection (3). Now, the subsection (3) that is referred to there, your Honours, is in terms, in effect, rather similar to subsection (2), but our understanding of the position is that subsection (3) was not in force at the time of the accident.
KIRBY J: This is at section 138, is it?
MR JACKSON: No, I am sorry, your Honour. Subsections of section 74.
KIRBY J: I see.
HAYNE J: Was there in force at the relevant time a provision in terms, "The damages recoverable in respect of the motor accident shall be reduced by such percentage as the court thinks fit and equitable in the circumstances of the case."?
MR JACKSON: Yes. Your Honour, what we have attached to our submissions - - -
GUMMOW J: We have been working off what your attachment is.
MR JACKSON: Thank you, your Honour. I just wanted to make sure that there was not the confusion that I must say I had.
GUMMOW J: Yes.
McHUGH J: I have been working off yours.
MR JACKSON: Thank you, your Honour; that is what the position was. Your Honour, that is the first thing. The second thing I wanted to say was this: if one looks at the situation which obtained, first of all at the time when the changeover of drivers occurred, one cannot leave out of account what took place before, because if one is looking at the store of knowledge that the person in the position of the respondent had or should have had, he had, in fact, the knowledge that he had acquired the night before. Your Honours, one cannot leave that out of account. That knowledge should not have had the result that he put himself in a situation which your Honour the presiding Judge mentioned at an earlier point in the case, where he was, in fact, in a car driving around and where the events that happened might have occurred; there was the range of events that might have occurred.
Your Honours, the second thing we would seek to say is in relation to the decision in Nominal Defendant v Saunders 8 MVR, at page 216 when their Honours come to actually decide the case, one sees, your Honours, at that page in the first new paragraph that what they seem to be saying - and this is about six lines into the paragraph:
The evidence does not establish when it was that the respondent knew that it was likely that he would be the passenger of Geitz, let alone what the state of sobriety of either man was when the respondent achieved that state of knowledge. It has not been shown that, before the respondent's own capacity was materially affected, he was put on notice of the danger that Geitz was likely to get drunk.
So, your Honours, what one sees is really that the case, in the end, seems to turn upon the state of knowledge at times when it might have been relevant to acquire it.
CALLINAN J: Mr Jackson, it seems to me that clearly the people at the party, including Ms Joslyn and Mr Berryman, went out with the intention of getting drunk.
MR JACKSON: It would be a big night, your Honour, big night.
CALLINAN J: With the intention of getting drunk and they fulfilled that intention.
MR JACKSON: Well, your Honour, young people sometimes - - -
KIRBY J: I just think "drunk" is a label and I am a little worried about - it is not necessary to put that label. It is just that they were sufficiently affected by alcohol to affect their capacity to drive.
MR JACKSON: Yes.
KIRBY J: "A drunk" has all sorts of baggage with it.
HAYNE J: Perhaps "hammered" is the more modern expression, Mr Jackson, or "well and truly hammered".
MR JACKSON: I am indebted to your Honour.
KIRBY J: I do not know any of these expressions.
McHUGH J: No, no. Justice Hayne must live a very different life to the sort of life we lead.
KIRBY J: I have never heard that word "hammered" before, never. Not before this very minute.
MR JACKSON: Your Honour, for a contemporary description of it, one can see the evidence of Mr Nokes, and at, for example, volume 2 page 311, and the judge appeared to accept Mr Nokes' evidence except that he made allowance for the fact that at a certain point of the evening Mr Nokes' recollection began to fade somewhat. I should say Mr Nokes was the man who put the respondent to bed. He rolled his swag out and he said, "Rolled out your swag for you, matey, you can camp here", or something like that. At the time when he was put to bed, your Honours, one sees that Ms Joslyn, the appellant, was there too and they spoke. So at the moment before going to bed, as it were, the respondent was speaking to Ms Joslyn.
But, your Honour, as to the party, page 311, your Honours will see he said, about line 20, he saw "a fair bit of everyone" at the party, "everyone in the same area drinking together", that included the two of them, and about line 29 on the left-hand side:
Q. There was fairly serious drinking being done that evening at the party by all concerned from what you could see; is that right?
A. Yes.
Q. And that included both Allan Berryman and Sally Joslyn, is that correct?
A. Yes.
Q. And you?
A. Yes.
At the bottom, the last two answers on that page:
Q. It maybe small talk, but it was big drinking that night?
Your Honours will see at the top of the next page is:
everyone was having a good time, everybody was drinking.
and so it goes on. Your Honours, at page 312, line 22 - - -
KIRBY J: Do you say that the trial judge accepted this witness?
MR JACKSON: What I said, your Honour, was that at page 1111 the trial judge was favourably disposed to his evidence in the sense that he gave his evidence honestly and to the best of his recollections. This is line 29:
Obviously, on his own admission, he was significantly affected by alcohol at the time of the events he related, and for that reason, I view his assessment of times as most probably inaccurate.
That is about all, your Honour.
CALLINAN J: Mr Jackson, just one matter. Can you tell me where the evidence is to which Justice Meagher refers on page 1186 in paragraph 18 that Ms Joslyn by 4.30 am was seen quite drunk and staggering about? I do not think it is Mr Nokes, is it?
McHUGH J: No, I do not think it is.
MR JACKSON: No, I do not it is Mr Nokes, your Honour.
CALLINAN J: You might not be able to do it now, Mr Jackson.
MR JACKSON: Your Honour I am afraid I just cannot do it this moment. Can we give your Honours - - -
CALLINAN J: Perhaps you could give us a note.
GUMMOW J: Mr Garling seems to have it, I think.
MR JACKSON: Well, your Honour, one possible reference is page 147, where the plaintiff himself said at the bottom of the page:
Q. By the time you went to bed, was everyone that you could see at the party basically staggering drunk themselves?
A. That's correct.
And the same answer between lines 18 and 19 on page 148.
KIRBY J: Could I ask you, the only point that is of potential interest is the subjective/objective issue. That is to say, is the test what the plaintiff himself knew? Now, in favour of that view is that the statute says, reduced by what is just and equitable, and one could say if a person is drunk, but the person who gets into their car does not know it, it is not just and equitable to reduce their damages by reference to the objective fact because the appearances look all right and you get into the car and therefore you are not to be, as it were, punished or have your damages reduced because it is not just and equitable if you do not know. That tends to support the subjective view.
MR JACKSON: Well, the statute would not apply then, your Honour, because what it requires is that you either be aware, or that you ought to have been aware, of the impairment. I am sorry, I think I interrupted, your Honour. But if the state of knowledge was that a person was not, in fact, aware and there was nothing to indicate the person ought to have been aware of the impairment of the driver's ability to drive, then there would not be a case for contributory negligence. But one does then look at the situation of the person who is the passenger, relevantly, and in relation to that one asks, was that person aware of the impairment or should that person, knowing that person knew in the first place, or perhaps what a reasonable person ought to have known - - -
KIRBY J: Well, humour me with this. Justice Meagher's line of reasoning appears to have been he did not know because he was not particularly paying attention to the appellant and he did not - ought to have known because he himself was very intoxicated and he was asleep and then when he woke up here was a young woman who people at the time said did not appear to be intoxicated and he might have thought, "Well, I want to get those McDonalds, and this is a person who seems as though she can drive me, and off we go." That is how Justice Meagher appears to have reasoned it.
MR JACKSON: Well, that does not sit very well with the finding of fact made by the primary judge at page 1121 lines 20 to 25, because he said that he believed that he did not actually consider the issue, but that he was capable of considering the issue at that time. So the judge did not quite accept - - -
KIRBY J: What page was that?
MR JACKSON: Page 1121, your Honour, particularly lines 24 and 25.
KIRBY J: Very well, I will look at that.
MR JACKSON: The judge did not particularly accept the proposition that it was part of the plaintiff's evidence that he was "off with the fairies" between the time he went to bed and the time that the accident happened. He had no recollection. He also was not enthused with the proposition that the events that took place should not have led him to have a view about her capacity to drive. Your Honour, what I mean by that - I will give your Honour the reference in just a moment - but that is why what he said was that she was not showing obvious signs of alcohol. What the judge said, at the bottom of page 1120 was that he said he believed - this is line 42:
I believe I am required -
this is re resolving the conflict I earlier referred to -
to examine the . . . capacity to judge the condition . . . over a period which started well before
et cetera. He said:
That includes his exposure to Miss Joslyn for the best part of one hour whilst they travelled to Mildura and back. The evidence I have recited shows that in that time he ought to have recognised her capacity to drive was affected by her excess consumption of alcohol and the other factors referred to by Professor Starmer which included fatigue and lack of experience.
Your Honour, those are our submissions.
McHUGH J: Thank you. The Court will reserve its decision in this matter. Adjourn the Court.
AT 12.10 PM THE MATTER WAS ADJOURNED
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