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;