Joslyn v Berryman [2003] HCA 34

HIGH COURT OF AUSTRALIA

McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

Matter No S122/2002

SALLY INCH JOSLYN APPELLANT

AND

ALLAN TROY BERRYMAN & ANOR RESPONDENTS

Matter Nos S125/2002 and S126/2002

WENTWORTH SHIRE COUNCIL APPELLANT

AND

ALLAN TROY BERRYMAN & ANOR RESPONDENTS

Joslyn v Berryman

Wentworth Shire Council v Berryman

[2003] HCA 34

18 June 2003

S122/2002, S125/2002 and S126/2002

ORDER

In each matter:

1. Appeal allowed.

2. Set aside paragraphs 1, 2 and 3 of the order of the Court of Appeal of New South Wales made on 11 April 2001.

3. Remit matter to the Court of Appeal of New South Wales for determination of the issues not so far dealt with and the cross-appeal regarding the assessment of the contributory negligence of the first respondent.

4. First respondent to pay the costs of the appeal to this Court.

On appeal from the Supreme Court of New South Wales

Representation:

Matter No S122/2002

D F Jackson QC with G I Charteris for the appellant (instructed by McMahons National Lawyers)

M L Williams SC with P R McGuire for the first respondent (instructed by Carroll & O'Dea)

P R Garling SC with J M Morris for the second respondent (instructed by Phillips Fox)

Matter Nos S125/2002 and S126/2002

P R Garling SC with J M Morris for the appellant (instructed by Phillips Fox)

M L Williams SC with P R McGuire for the first respondent (instructed by Carroll & O'Dea)

D F Jackson QC with G I Charteris for the second respondent (instructed by McMahons National Lawyers)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Joslyn v Berryman

Wentworth Shire Council v Berryman

Negligence – Contributory negligence – Passenger in defective vehicle with intoxicated and inexperienced driver – Whether reasonable person would have foreseen a risk of serious injury – Facts and circumstances relevant to contributory negligence.