Joslyn v Berryman

What happened?

Allan Berryman and Sally Joslyn had been drinking at a party until about 4.00am. Berryman drove afterwards, and when Joslyn noticed he was falling asleep at the wheel she insisted on taking over. Shortly after she began driving the vehicle overturned, injuring Berryman. The accident was at about 8.45am. The driving capacity of both was affected by intoxication; the vehicle also had a propensity to roll over and a broken speedometer ([1]).

Berryman was the passenger when he was injured, and he sued the intoxicated driver. What is unusual is only how he came to be one: he had been driving himself minutes earlier, after the same night's drinking, and handed over the wheel.

What did the Court decide?

The appeals were allowed and the matter remitted to the Court of Appeal, including the cross-appeal on the assessment of Berryman's contributory negligence.

The case runs on statute, not on general principle. Section 74(2) of the Motor Accidents Act 1988 (NSW) requires a finding of contributory negligence where an injured person was a voluntary passenger and "was aware, or ought to have been aware" that the driver's ability was impaired by alcohol; s 74(6) takes a person outside "voluntary passenger" where they "could not reasonably be expected to have declined to become a passenger". Otherwise s 74 leaves the common law rules alone ([1]).

Two things follow, and the first is the one commonly got wrong. Actual knowledge is not required. "The test of contributory negligence is an objective one" ([32]), and the statutory limb is satisfied by what the passenger ought to have been aware of. And in deciding that, a court may have regard to facts and circumstances occurring before the passenger entered the vehicle. What a person ought to have known "is not comprehended simply by what a person knew or observed at the moment before an accident, or at the moment at which that person became a passenger" ([76]); the statutory question "invited attention to wider considerations ... not just observations which it was open to the injured person to make at the time of handing over control" ([156]). Here those wider considerations were an evening's drinking that ended at 4.00am. What Joslyn looked like at the handover was not irrelevant, but on Kirby J's view it "could not in the circumstances enjoy the factual significance which the Court of Appeal assigned" to it ([145]).

Why does this case matter?

Take the principle from it, but not the percentages. The judgment settles points of law — McHugh J works through common-law contributory negligence as well as the statutory limb — and Hayne J is equally explicit about what cannot be carried away: "contributory negligence and apportionment are always questions of fact. It is, therefore, wrong to elevate what was said in past cases about the facts of those cases to any principle of law", and wrong in particular to deduce general rules for drunk-driver-and-passenger cases from decisions reached "in a different legal context", since "[e]ach case turns on its own special facts" ([158]). A student who arrives with a remembered figure has taken the one thing his Honour said could not be taken.

The other lesson is about who decides. Nobody showed that the primary judge's findings were wrong; the Court of Appeal put a different and narrower question in their place and then treated it as one he had failed to address ([156]), deciding it on how Ms Joslyn "momentarily appeared to others after the accident" ([77]). Gummow and Callinan JJ treat that reframing as an error of law in its own right and not merely as a wrong answer ([73]), which is why the appeals succeeded without anyone showing the primary judge's findings were wrong. Reading any appellate judgment on contributory negligence, check first whether the question being answered is the one the statute asks.

Exam and application relevance

Identify the governing provision before the principle, and date it. This formula has been carried through three NSW schemes: s 74 of the Motor Accidents Act 1988, then s 138 of the Motor Accidents Compensation Act 1999, and now s 4.17(2)(b) of the Motor Accident Injuries Act 2017, which keeps "aware, or ought to have been aware" and excludes minors. Each may compel a finding the common law would only permit, and each carries the same escape — ask whether this passenger "could not reasonably be expected" to have declined the ride.

Then argue awareness objectively. Do not assert that the plaintiff knew; ask what a reasonable person in their position ought to have appreciated, and gather the evidence for it from the whole evening rather than the moment of getting in. Where you are outside the statute and back at common law, resist quoting percentages from other cases: on Hayne J's approach they are findings of fact, not authority.

Check your understanding

Suppose a passenger genuinely never turned his mind to whether the driver was fit to drive, and nothing in the evidence shows that he did. Why would that not help him under s 74(2)(b)?