New South Wales Court of Appeal CITATION : Berryman v Joslyn & AnorWentworth Shire Council v Joslyn & Anor [2001] NSWCA 95 FILE NUMBER(S) : CA 40888/99; 40942/99 HEARING DATE(S) : 19/03/01, 20/03/01 JUDGMENT DATE : 11 April 2001 PARTIES : Allan Troy Berryman v Sally Inch Joslyn & Wentworth Shire Council Wentworth Shire Council v Sally Inch Joslyn & Allan Troy Berryman JUDGMENT OF : Priestley JA at 1; Meagher JA at 2; Ipp AJA at 25 LOWER COURT JURISDICTION : District Court LOWER COURT 429/98 FILE NUMBER(S) : LOWER COURT Boyd Boland DCJ JUDICIAL OFFICER : Appellant CA 40888/99: M Williams / J M Hennessy COUNSEL : 1st Respondent CA 40888/99: B Gross SC / J Charteris 2nd Respondent CA 40888/99: Garling SC / J Morris Appellant CA 40888/99: Carroll & O'Dea Solicitors SOLICITORS : 1st Respondent CA 40888/99: McMahons National Lawyers 2nd Respondent CA 40888/99: Phillips Fox Lawyers CATCHWORDS : Tort - negligence - road accident - whether public road - failure to erect warning sign - assessment of contributory negligence - defence of 'joint illegal activity' - appeal CA 40942/99 dismissed - appeal CA 40888/99 allowed - cross appeal dismissed. Act No. 26 of 1944, ss 11I (2) and (3) LEGISLATION CITED : Motor Accidents Act (1988) Municipalities Act (1867) CASES CITED: Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 Cusack v Stayt (2000) 31 MVR 517 DECISION : 1. In the appeal Wentworth Shire Council v Sally Inch Joslyn and Alan Troy Berryman, appeal dismissed with costs.; 2. In the appeal Alan Troy Berryman v Sally Inch Joslyn and Wentworth Shire Council, appeal allowed; judgment below set aside. Verdict entered for the appellant against the first respondent in the amount of $1,995,086.36 and against the second respondent in the amount of $750,000.; 3. In the cross appeal Sally Inch Joslyn v Alan Troy Berryman, appeal dismissed with costs. 14 - - THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40888/99 CA 40942/99 PRIESTLEY JA MEAGHER JA IPP AJA Wednesday, 11 April 2001 ALAN TROY BERRYMAN v SALLY INCH JOSLYN & ANOR WENTWORTH SHIRE COUNCIL v SALLY INCH JOSLYN & ANOR FACTS The plaintiff was seriously injured in a motor car accident near Wentworth, N.S.W. The accident occurred while the plaintiff's car was being driven by Miss Joslyn, the first respondent, and he was a passenger. Both the plaintiff and Joslyn had attended a party the night before the accident and had been drinking heavily. After only a few hours sleep, they drove into Mildura to get breakfast. The plaintiff drove most of the way. On the return trip, Joslyn took over the driving. She did not have a driver's license and had not driven for over 3 years. She lost control on a bend in the road and crashed the car severely. There were no road signs on the approach to, or on the bend. The road was under the control of Wentworth Shire Council. At trial, the plaintiff successfully sued Joslyn and Wentworth Shire Council. The plaintiff was held guilty of contributory negligence to the extent of 25%. Wentworth Shire Council appealed from this decision on two bases; they asserted that they were not responsible for the road where the accident occurred, and challenged the finding of negligence made against them. In a separate appeal heard concurrently, the plaintiff appealed against the finding of contributory negligence. He also sought leave to file a further amended Notice of Appeal arguing that the District Court jurisdiction was not limited to $750,000. Joslyn cross appealed, submitting that the assessment of the plaintiff's contributory negligence was inadequate. HELD per Meagher JA (Priestley JA & Ipp AJA agreeing): (i) At the time of the accident, the power to maintain and control the road resided in Wentworth Shire Council. The Council constructed the curve in its present form; failure to erect appropriate signage when the Council was constructing the curve therefore constituted misfeasance not nonfeasance. (ii) There is no basis to review the trial judge's finding that the Council was negligent in failing to erect signage on the approach to the curve; either a sign indicating the oncoming curve, or additionally a sign setting a lower speed limit. (iii) The contributory negligence of the plaintiff should be reduced from 25% to 0%. There is no evidence that either the plaintiff or Joslyn were drunk at the time of the accident and no evidence that the plaintiff had reason to believe Joslyn was affected by intoxication. (iv) There is no substance to the "joint illegal activity" defence asserted by the Council. This is not a case where the object of the parties' action was itself illegal, nor was it a case where the plaintiff goaded Joslyn into breaking the law. (v) Leave for the plaintiff to file a further amended Notice of Appeal refused. ORDERS 1 In the appeal Wentworth Shire Council v Sally Inch Joslyn and anor, appeal dismissed with costs. 2 In the appeal Alan Troy Berryman v Sally Inch Joslyn and anor, appeal allowed; judgment below set aside. Verdict entered for the appellant against the first respondent in the amount of $1,995,086.36 and against the second respondent in the amount of $750,000. 3 In the cross appeal Sally Inch Joslyn v Alan Troy Berryman, appeal dismissed with costs. 4 Leave sought by the plaintiff to file a further amended Notice of Appeal refused. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40888/99 CA 40942/99 PRIESTLEY JA MEAGHER JA IPP AJA Wednesday, 11 April 2001 ALAN TROY BERRYMAN v SALLY INCH JOSLYN & ANOR WENTWORTH SHIRE COUNCIL v SALLY INCH JOSLYN & ANOR JUDGMENT 1 PRIESTLEY JA: I agree with Meagher JA 2 MEAGHER JA: These are two appeals (and a cross-appeal) arising out of judgments and verdicts given by Boyd Boland DCJ on 5 November 1999 arising out of an accident which occurred on a road near Wentworth (which is in the south-west of New South Wales) on 27 October 1996. It occurred towards the end of a drinking binge of heroic proportions. It took place on a road called Reserve Road East, close to the intersection of that road and Hollands Lake Road. Hollands Lake Road itself branches out from Silver City Highway. 3 The plaintiff, Mr Berryman, who was very seriously injured, sued two defendants: Miss Sally Inch Joslyn and Wentworth Shire Council. His Honour found both defendants liable and awarded damages as follows: Miss Joslyn, $1,995,086 (calculated according to the Motor Accidents Act (1988) and the Wentworth Shire Council $2,505,311 (calculated on common law principles). His Honour also found that the plaintiff was guilty of contributory negligence, which he assessed at 25%. Judgments were then entered as followed: Miss Joslyn $1,496,314, the Council $750,000 (the limit to the District Court jurisdiction, as the plaintiff's advisers had not obtained a consent order to unlimited jurisdiction). As between the two defendants, his Honour apportioned liability 10% to the Council and 90% to Miss Joslyn. 4 Hollands Park Road is a smallish road which runs between either bush or farming properties. It runs, as I have said, from Silver City Highway to another small road called Reserve Road East. Travelling up Hollands Lake Road to Reserve Road East one passes on one's left another road which enters Hollands Lake Road at a T-intersection. The distance from that intersection to the curve which leads into Reserve Road East is not great. 5 The act of negligence on behalf of the Council which his Honour found had been made out was its failure to erect adequate signage before one arrived at the curve - either a sign indicating that a curve was coming up, or alternatively that sign combined with another sign setting a lower speed limit. There was much evidence, both expert and lay, that to turn the curve without fully realising what was involved was a hazardous operation. The curve was what the experts called a "compound curve". On entering the initial part of the curve and passing into the central position, which appears partially to straighten, the inexperienced driver would gain a false sense of security about the curvature of the following section, and thus be unprepared for the very tight radius that followed. This, his Honour found, was what happened to Miss Joslyn. 6 However, before one can say that the Council was negligent in this regard, one must first conclude that it had either the duty to erect such signage, or at least the power to do so. Mr Garling SC, learned senior counsel for the Council, maintained, both below and on appeal, that the Council had neither duty nor power. At first sight this seems an odd submission, because normally a public road is vested in the local council, which has a vast range of powers in respect of it - including the power to erect signs. 7 There was no question but that the road was treated by everyone as if it was a public road. Nobody could point to any documentary evidence of dedication, but there were no physical barriers to its use, and, for as long as anybody could remember, it was used by about 200 motor cars a day as if by right, and long-continued public use permits an inference of dedication. 8 A number of documents were placed before the Court dealing with this topic. Of these, the most important of which was a report of the celebrated Mr Roy Ringrose dated 16 August 1999. It transpires from that that the land in question fell within the Coomealla Irrigation Area, where boundaries were fixed in 1924-1926. At this stage, the roads were formed (although apparently not tarred) and were, it would seem, Crown lands. The land was then vested in the Water Conservation and Irrigation Commission, which, in accordance with the practice of this State, changed its name and identity on many occasions. The fee simple seems to have ended up being vested in a body carrying the grandiose title Lower Murray Irrigation Area Limited. 9 The most important document for determining the status of the relevant roads is Act No. 26 of 1944, ss 11I (2) and (3), which are in the following terms: (2) The provisions of this section, unless the context or subject-matter otherwise indicates or requires, shall apply only to and in respect of those portions of the Coomealla Irrigation Area and the Curlwaa Irrigation Area which have been or which may hereafter be included in a municipality or shire. (3) Any land in the Wentworth Municipality within the Coomealla Irrigation Area or the Curlwaa Irrigation Area at the commencement of the Irrigation and Water (Amendment) Act, 1944, which has before such commencement been defined, reserved or left as a road within any subdivision of Crown lands or lands vested in the Commission as indicated on the official plans of the same, shall be deemed to be a public road for the purposes of sections two hundred and forty to two hundred and seventy-five (both inclusive) and section two hundred and seventy-seven of the Local Government Act, 1919, as amended by subsequent Acts, but any portion of such land occupied by a canal, channel or drain under the control of the Commission shall be deemed not to be a part of the road. 10 By proclamation under the Municipalities Act 1867, published in the Government Gazette of 23/1/1878, the Municipality of Wentworth was constituted to serve an "area of about 21,940 acres". That was the area around the town of Wentworth itself. The boundaries of the Municipality were extended by two further notifications in the Gazette, and, by the second of these notifications (on 15 December 1950) the lands under discussion came within the boundaries of the Municipality. By yet another notification in the Gazette the land was included within the boundaries of a new local government body, the Shire of Wentworth. 11 It would seem that the roads in question were sealed at some time between 1926 and 1961. It is impossible to be more precise. 12 What is important for present purposes is not where the fee simple is vested but where the right to control and maintain the road resides. The combination of the various sections referred to in subsection (3) of s 11I, of Act No 26 of 1944 deal with those powers to control and maintain roads. Mr Garling SC, learned senior counsel for the Council, submitted that subsection (3) did not apply to the subject land because it had not been included in any municipality or shire at the commencement of the 1944 Act, as it first became included in a Municipal area in 1951. However, that submission, as was pointed out to us by Mr Gross QC, learned senior counsel for the plaintiff, overlooks the plain words of subsection (2), which gives subsection (3) an ambulatory effect. The consequence is that at first the Municipality and then the Shire had the power to control and maintain the roads since 1951 and 1957 respectively. 13 Add to that the fact that lay evidence established that Council workmen did exercise those powers. A Mr Gooding, who had been employed by the Wentworth Shire Council for 29 years, said that he had graded the corner of the road in question about three times in ten years, he did grading work on the shouldering of the curve. Mr Smyth, a local farmer whose property adjoins the accident site, gave evidence that he had seen the Council's employees working on the corner of the road where Mr Berryman eventually came to grief. Mr Nunan, a former member of the Shire Council, said that after 1960 the Council did a great deal of work sealing the road. 14 There was evidence that rival bodies, if I may use that expression, did not construct the curve, neither the Road Traffic Authority or the Lower Murray Irrigation Areas Limited (or its predecessor) can be held responsible. The Council led no evidence on the question. There is therefore no argument against his Honour's finding that the Council constructed the curve in its present form. Once this fact is established, there cannot, in my view, be any question but that failure to erect appropriate signage when the Council was constructing the curve constituted misfeasance not nonfeasance. 15 That in the state it was in at the date of the accident it was extremely dangerous is quite clear. The locals said so. So did the experts. Nobody really denied it. 16 I shall now revert to the events of October 1996. Mr Berryman and some of his friends had done some drinking on 25 October 1996. The triggering event for this merriment was the approaching 21st birthday of a friend of the plaintiff's, Mr Rowan Crisp. He was to have a party on 26 October to celebrate this event at the house of his parents, who lived at the end of Reserve Road East at Dareton, New South Wales. Miss Joslyn was bidden to attend by Mr Berryman, who arranged to meet her there. Miss Joslyn travelled to the party in the company of three of her women friends - Miss Katherine Dean, Miss Angela Healy and Miss Michelle Polkinghorne, in a motor car driven by Miss Dean. Miss Joslyn took with her to the party a bottle of Grants Scotch Whisky (which she seemed to demolish that night, perhaps without anyone else's assistance). Her companions took with them equivalent liquor supplies of their own. Miss Joslyn and her friends arrived at the party between 6.30 and 7.30 pm. 17 Mr Berryman arrived some time later, at about 9.30. The party went on for many hours. The consumption of alcohol seems to have been the principal event in the party. In traditional Australian manner, the men and the women did their drinking in two separate groups, apart from each other, although Mr Berryman did, gallantly, spend some moments drinking with, and talking to, Miss Joslyn. From the moment Mr Berryman and his friends arrived, they all intended to spend the night at the Crisps. They all caroused long after midnight. 18 Miss Joslyn drank heavily, and by 4.30am was seen "quite drunk and staggering about". Most of the other guests were in like case. Mr Berryman was found by his Honour to be quite drunk. He did not know when that event took place but thought it might be about 4.00 am. It must have been later than that, because Miss Joslyn went to bed before he did, and that did not take place, according to Miss Healy, before 5 or 5.30am. 19 At about 4.00 or 4.30 am one of the guests, a Mr Ross Nokes, took the keys out of the ignition of Mr Berryman's motor car, which was a 1987 Toyota Hilux Utility of unknown colour. He gave them to Miss Joslyn, who had asked for them. At about 7.00 am, after the pair by then had enjoyed no more that 3 hours sleep, they went together to Mildura for breakfast, in Mr Berryman's car and he driving. They drove then, taking about 15 minutes, without incident. They bought food at McDonalds and took it to eat at a park on the banks of the river. Having eaten, they decided to return to the Crisp party. They took the route from Mildura via the Silver City Highway to Hollands Lake Road and then to Reserve Road East. The return drive should also have taken about 15 minutes. Mr Berryman, of course, continued driving. The weather was fine, there was little if any cloud, and the road was dry. 20 When they turned into Hollands Lake Road, Miss Joslyn noticed that Mr Berryman was dozing off to sleep, and said something to him. He replied "Well, you drive the car then". At the time of this conversation he: (a) was the owner of the vehicle and would not let anyone drive his vehicle without his permission; (b) knew that he'd been drinking the evening before and knew that he could still be under the influence of the alcohol; (c) knew that Joslyn had been drinking the night before; (d) knew Joslyn did not have a driver's licence; (e) knew that the handling characteristics of the vehicle gave it a propensity to roll; (f) knew that he was driving on public roads; (g) knew the effects of alcohol had an adverse effect on the ability of a driver to manoeuvre a vehicle; (h) knew it was against the law to permit an unlicensed driver to drive a motor vehicle on a road; (i) knew it was illegal to permit someone who was drunk to drive a motor vehicle on a public road; and (j) knew that he was in no fit state to be driving; At the same time, Miss Joslyn knew: (a) she did not hold a driver's license; (b) she had not driven for over 3 years; (c) she had known that the plaintiff had been drinking at the Crisps; (d) knew that it was an offence for her to drive a vehicle with a blood alcohol level in excess of the legal limit; (e) that she could still be over the legal permissible blood alcohol limit if she had been drinking at a party the night before; (f) that the speedometer in the vehicle was not working; (g) she had very little sleep in the 12 hours prior to the accident; (h) she had not been anticipating that she would be asked to drive; (i) knew that the Plaintiff was fatigued and falling asleep at the wheel; (j) knew that driving a vehicle while intoxicated or fatigued could place Joslyn and others in danger. After she took over driving, they went for about one kilometre along Hollands Lake Road. She had never driven this vehicle before, but had driven others like it. She did not know what the speed limit was in Hollands Lake Road; it would not have made much difference if she did, as the speedometer was not working. She passed the T-sign without noticing it, and made towards the curve, and then the accident happened. She does not remember anything after approaching the curve. On the evidence, his Honour held that she rounded the corner, not by any means at an excessive speed, but at a speed which meant that she, in the condition in which she was that morning, could not control the vehicle as it moved into the dangerous parts of the curve. A traffic-engineering report from Mr R Stuart-Smith, which his Honour accepted, concluded that (a) the speed at which Miss Joslyn was actually travelling was between 60 and 70 kph, (b) the "free speed" (ie the speed limit) was 100 kph, (c) the "critical speed" (ie the maximum speed which can be travelled round the curve) was 75kph, and (d) the "advisory speed" (ie the speed at which a prudent driver ought drive) was 45-50 kph. She said, and his Honour believed her, that if there were signage indicating an oncoming curve (especially if it were accompanied by a sign lowering the maximum speed), she would have absorbed its message and managed the curve. In these circumstances, I would not favour reviewing his Honour's conclusion that the Council was negligent. 21 His Honour, as I have said, made a finding of 25% contributory negligence against the plaintiff. The only action of his which could possibly have amounted to contributory negligence was permitting Miss Joslyn to drive instead of him. In this regard, one must view matters as they stood at the time of handing over control of the car, (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 of Miss Joslyn and Mr Berryman 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. Indeed, quite to the contrary. Of the people who were present who gave evidence, all said that Miss Joslyn showed no signs of intoxication. His Honour so found. Despite, therefore, one's reluctance to overrule a trial judge's finding on apportionment (Podrebersk v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492), it seems quite impossible to justify his Honour's conclusion on contributory negligence. I would be in favour of reducing it from 25% to 0%. 22 In considering whether what Mr. Garling SC called the defence of "joint illegal activity" was made out, as he strongly submitted it was, one must consider that factual background which I have just endeavoured to outline. One must add to it two further facts which his Honour found to be justified on the evidence: (a) at the time he commenced drinking, Mr Berryman had no intention to get drunk, and (b) at no time during the evening's drinking did he have any reason to suppose that he and Miss Joslyn (or he and any other person, for that matter) would be driving to Mildura early in the morning. One must also add to all those facts that there is no evidence at all that he and Miss Joslyn entered into any sort of contract to indulge in a drunken driving exhibition. This is not a case where the object of the parties' action was in itself illegal (like, for example, robbing a bank or stealing a motor car); there is (unfortunately) no criminal offence involved in eating at McDonalds, and certainly none involved in driving home. Nor was it a case where Mr Berryman, knowing Miss Joslyn was drunk, goaded her into breaking the law (Cusack v Stayt (2000) 31 MVR 517). At no point does this so-called defence of "joint illegal activity" make any sense. 23 One final matter must be considered. His Honour would have given Mr Berryman a verdict against the Council in the sum of $2,505,311 were it not for the fact that the District Court was not exercising unlimited jurisdiction in the matter. However the figure was reduced to $750,000. At the heel of the hunt, Mr M Williams SC, learned senior counsel for Mr Berryman, sought to file a further amended Notice of Appeal arguing that the District Court jurisdiction was not limited to $750,000. I do not think that leave should be granted. The parties chose the battlefield, and should stick to it. Particularly is this so when the Council may have conducted itself differently had the point been taken early. From Mr Berryman's point of view, this is, of course, most unfortunate; and even more so when one contemplates that things could have been otherwise if steps had been taken to ensure that the Court's jurisdiction was unlimited. 24 The orders which I propose are as follows: 1. In the appeal Wentworth Shire Council v Sally Inch Joslyn and Alan Troy Berryman, appeal dismissed with costs. 2. In the appeal Alan Troy Berryman v Sally Inch Joslyn and Wentworth Shire Council, appeal allowed; judgment below set aside. Verdict entered for the appellant against the first respondent in the amount of $1,995,086.36 and against the second respondent in the amount of $750,000. 3. In the cross appeal Sally Inch Joslyn v Alan Troy Berryman, appeal dismissed with costs. 4. Leave sought by the plaintiff to file a further amended Notice of Appeal refused. 25 IPP AJA: I agree with Meagher JA. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.