Berryman v Joslyn; Wentworth Shire Council v Joslyn

Court of Appeal (NSW)|2004-04-05|Before: Mason P, Beazley JA, Tobias JA

CITATION : Berryman v Joslyn; Wentworth Shire Council v Joslyn [2004] NSWCA 121 HEARING DATE(S) : 5 April 2004 JUDGMENT DATE : 23 April 2004

JUDGMENT OF : Mason P at 1; Beazley JA at 2; Tobias JA at 3 DECISION : In appeal CA 40888/99 - Mr Berryman's appeal dismissed with costs; the cross-appeal of Ms Joslyn allowed with costs.; In appeal CA 40942/99 - Appeal allowed.

CATCHWORDS : TORTS - negligence - contributory negligence - apportionment of liability - whether primary judge erred in assessment of contributory negligence - whether there ought to be separate findings of contributory negligence made in respect of each defendant - whether the original finding of apportionment ought to be disturbed - s74 Motor Accidents Act 1988 (NSW). LEGISLATION CITED : Motor Accidents Act 1988 (NSW) Law Reform (Miscellaneous Provisions) Act 1965 (NSW) House v The King (1936) 55 CLR 499 CASES CITED : Joslyn v Berryman (2003) 77 ALJR 1233 Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 Allan Troy Berryman PARTIES : Sally Inch Joslyn Wentworth Shire Council FILE NUMBER(S) : CA 40888/99; 40942/99 A: M L Williams SC / K Pry SC COUNSEL : (1) R: B Toomey QC / G Charteris (2) R: P Garling SC / J Morris A: Carroll & O'Dea, Sydney SOLICITORS : (1) R: McMahons National Lawyers, Sydney (2) R: Phillips Fox, Sydney

LOWER COURT District Court JURISDICTION : LOWER COURT DC 429/98 FILE NUMBER(S) : LOWER COURT Boyd-Boland, ADCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40888/99 CA 40942/99 DC 429/98

Mason P Beazley JA Tobias JA

Friday 23 April 2004 ALLAN TROY BERRYMAN v SALLY INCH JOSLYN & ANOR Judgment 1 MASON P: I agree with Tobias JA. 2 BEAZLEY JA: I agree with Tobias JA. 3 TOBIAS JA: Allan Troy Berryman (Mr Berryman) sustained serious injuries when on, 27 October 1996, he was a passenger in a motor vehicle driven by Sally Inch Joslyn (Ms Joslyn) which overturned when negotiating a right-hand bend in Hollands Lake Road near Dareton in south-western New South Wales. Mr Berryman sued Ms Joslyn as the driver of the vehicle and the Wentworth Shire Council (the Council) as the authority responsible for the care, control and management of the road. 4 The action was heard by Boyd-Boland ADCJ who, on 5 November 1999, found both Ms Joslyn and the Council liable in negligence. His Honour assessed the damages payable by Ms Joslyn in the sum of $1,995,086 (calculated according to the Motor Accidents Act, 1988) and by the Council in the sum of $2,505,311 (calculated on common law principles). 5 The primary judge also found that Mr Berryman was guilty of contributory negligence, which he assessed at 25%. Accordingly, he entered judgment against Ms Joslyn in the sum of $1,496,314 and against the Council in the sum of $750,000 being the limit of the District Court's jurisdiction as Mr Berryman had obtained neither the consent of the Council nor the leave of the court to give the latter unlimited jurisdiction. As between the defendants, his Honour apportioned liability as to 90% to Ms Joslyn and 10% to the Council.

The first appeal to the Court of Appeal 6 Mr Berryman appealed to this Court contending that the primary judge erred in finding that he was guilty of contributory negligence. Alternatively, he contended that his Honour should have found contributory negligence of less than 25%. Ms Joslyn cross-appealed, contending that the primary judge should have found up to 80% contributory negligence by Mr Berryman. The Council separately appealed to this Court against the primary judge's finding of negligence against it and his finding of only 25% contributory negligence on the part of Mr Berryman. 7 On 11 April 2001, this Court dismissed the Council's appeal. It allowed Mr Berryman's appeal and held that he was not guilty of contributory negligence. It therefore dismissed Ms Joslyn's cross-appeal. The Court set aside the primary judge's judgment and entered judgment in favour of Mr Berryman against Ms Joslyn in the amount of $1,995,086.36 and against the Council in the sum of $750,000.

The appeal to the High Court of Australia 8 On 15 March 2002, the High Court of Australia granted special leave to Ms Joslyn and the Council to appeal against that part of the judgment of this Court which found that Mr Berryman was not guilty of contributory negligence. During argument before the High Court, the issue debated was limited to whether an error had been made in the decision of this Court that the defence of contributory negligence had not been established. That appeal succeeded. On 18 June 2003, the High Court ordered that the appeal be allowed, that the orders of this Court made on 11 April 2001 be set aside and that the matter be remitted to this Court for determination of the issues not dealt with by the High Court including the cross-appeal of Ms Joslyn and the appeal of the Council regarding the assessment of Mr Berryman's contributory negligence: see Joslyn v Berryman (2003) 77 ALJR 1233.

The issue on the remitter 9 Although Mr Berryman had appealed to this Court against the primary judge's assessment of his contributory negligence at 25%, on the hearing before us that appeal was abandoned and it was submitted that the original finding should not be disturbed. It follows (and so much was conceded by Mr Berryman) that his appeal should be dismissed with costs. 10 Accordingly, in essence the only outstanding issue on the remitter was whether the primary judge had erred when he assessed Mr Berryman's contributory negligence at 25%. In order to understand the parties' contentions, it is necessary to refer to the relevant parts of the primary judge's judgment as well as to parts of the High Court's judgment. To those I now turn.

The decision of the primary judge 11 The primary judge's findings with respect to Mr Berryman's contributory negligence are contained in the following passages from his judgment (described by Gummow and Callinan JJ in their joint judgment (at 1244 [61]) as comprising "generous findings in favour of Mr Berryman"): "In this case I believe I am required to examine the Plaintiff's capacity to judge the condition of Miss Joslyn, over a period which started well before he went to bed on Sunday morning and continued up till the time she commenced to drive. 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. Having made the decision, along with others, before the party commenced, to stay overnight at the party, the Plaintiff should have had in contemplation that he might have to later become a passenger in his own motor vehicle because of the alcohol he anticipated consuming. Although I think he did not give the matter consideration, he should have contemplated his vehicle might be driven by Miss Joslyn who was his companion for the evening and ought to have considered the prospect of a journey such as that undertaken to Mildura. He did not do so. He had no regard to the consequences of his own alcohol consumption but more significantly, as it turned out, despite saying in evidence he would not have allowed Ms Joslyn to drive, because of his knowledge of her alcohol consumption, he did just that. 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 changeover of drivers, he did not consider that issue, but should have done so and was capable of so doing. The failure to take these matters to account was contributory negligence. The Plaintiff ought also to have realised the lack of experience and qualifications of Miss Joslyn particularly given his knowledge of the propensity of his vehicle to roll over. 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 level of reduction would be the same against both defendants there being no real difference in their arguments and in the defences pleaded on this issue. I find it appropriate to reduce the Plaintiff's verdict by virtue of his contributory negligence by 25%. His verdict against both defendants will be reduced accordingly…" 12 It will be appreciated from the foregoing that the primary judge generally adopted an objective approach in his determination of whether Mr Berryman was guilty of contributory negligence as well as in his assessment of the percentage by which his verdict should be reduced as a consequence thereof. This Court in the original appeal had held that the primary judge erred in so doing upon the basis of the subjective features relating to Ms Joslyn of which Mr Berryman was aware at the time he handed over control of the vehicle to her. In particular, this Court held that Mr Berryman was not guilty of contributory negligence because it found that he was not aware that Ms Joslyn's ability to drive the vehicle was impaired at the time that he became a passenger. As McHugh J observed at 1236 [14]: "They [the Court of Appeal] evidently took the view that, at least in a case like the present, the contributory negligence of a plaintiff has to be evaluated by reference to what the plaintiff knew or could have observed when he or she became a passenger." 13 All the justices of the High Court were of the view that neither the common law test (which governed the issue between Mr Berryman and the Council), nor s 74(2) of the Motor Accidents Act (which governed the position as being between Mr Berryman and Ms Joslyn) was so limited but, on the contrary, the proper test was an objective one. Accordingly, the fact that Mr Berryman was unaware of Ms Joslyn's impaired ability to drive did not necessarily prevent a finding that he was guilty of contributory negligence under either s 74(2) or at common law. 14 McHugh J stated the issue in the following terms (at 1241 [38]): "Hence, the issue is not whether a reasonable person in the intoxicated passenger's condition - if there could be such a person - would realise the risk of injury in accepting the lift. It is whether an ordinary reasonable person - a sober person - would have foreseen that accepting a lift from the intoxicated driver was exposing him or her to a risk of injury by reason of the driver's intoxication. If a reasonable person would know that he or she was exposed to a risk of injury in accepting a lift from an intoxicated driver, an intoxicated passenger who is sober enough to enter the car voluntarily is guilty of contributory negligence. The relevant conduct is accepting a lift from a person whose driving capacity is known, or could reasonably be found, to be impaired by reason of intoxication." 15 It was suggested during the course of the remitter hearing before us that it might not be in every case that the "ordinary reasonable person" who is a passenger must be assumed to be completely sober. What, for example, would be the position of a mildly inebriated person who decided to call a taxi? It is, however, unnecessary to pursue that issue further as it was accepted by all parties that it was appropriate to make that assumption in the circumstances of the present case. Accordingly, McHugh J considered ([39]) that: "…the fact that the passenger's intoxicated condition prevents him or her from perceiving the risks attendant on driving with an intoxicated driver does not absolve the passenger from complying with the standard of care required of any ordinary reasonable person." 16 His Honour then considered that the primary judge was correct in finding Mr Berryman guilty of contributory negligence at common law. He expressed his reasons for that finding in the following terms (at 1242): "40. Once it is accepted that the relevant circumstances were not confined to what Mr Berryman perceived or should have perceived when he became a passenger in his vehicle, a finding of common law contributory negligence on his part is inevitable. The relevant facts which an ordinary reasonable person would know or would infer point overwhelmingly to Mr Berryman's lack of care for his safety in becoming a passenger. First, Ms Joslyn had lost her driver's licence and probably had not driven for some time. Second, she was insisting on driving a vehicle whose speedometer did not work and which had a tendency to roll over and she had no experience of driving the vehicle. Third, Ms Joslyn had been drinking for about the same length of time as Mr Berryman who was unfit to drive. Fourth, the amount of alcohol consumed by Ms Joslyn, the time that had elapsed since she stopped drinking and her lack of sleep confirmed that she also was probably unfit to drive. Mr Berryman's inability to keep awake and his agreement to stop driving increased the probability that her drinking and lack of sleep made her unfit to drive. 41. Upon these facts, a reasonable person would have foreseen that, as a passenger in a car driven by Ms Joslyn, he or she was exposed to a risk of serious injury as the result of the defective nature of the vehicle, her drinking, her lack of sleep, her probable lack of recent driving experience and her lack of experience of driving this defective vehicle. Moreover, there was no reason why the hypothetical ordinary person, as the owner of the vehicle, could not have parked it by the side of the road until he or Ms Joslyn was capable of driving. In those circumstances, the learned trial judge was correct in finding Mr Berryman guilty of contributory negligence at common law." 17 In their joint judgment, Gummow and Callinan JJ considered that this Court erred in substituting a subjective test of the reasonableness of Mr Berryman's conduct for the objective test that s 74(2)(b) of the Motor Accidents Act required and that the common law, which posited the standards of a reasonable person, also required: see 1247 [73]. Their Honours also considered that this Court had "manifestly erred in fact". They said (at 1247 [75]): "Both Mr Berryman and Ms Joslyn were undoubtedly intoxicated from at least 4am on the day of the accident until, and after the accident. Despite that evidence was given that Ms Joslyn was not in fact manifesting obvious signs of intoxication not longer after the accidents, it seems to us to be highly unlikely that signs would not have been there to be seen by those able to see, or not otherwise distracted by more pressing concerns. However, in view of the clearly objective test posed by s 74(2)(b) of the Act, of what the injured person ' ought ' to have known, it is unnecessary to explore that matter any further." 18 Kirby J evaluated the factual issues in the following passages of his judgment (at 1259-1260): "144. The mere fact that, at the time Ms Joslyn took the keys and accepted Mr Berryman's express or implied invitation to drive his vehicle, she did not appear to be affected by alcohol intoxication is much less significant in this case than it might be in other factual circumstances. If, for example, a passenger without knowledge of a driver's insobriety, accepted an invitation to trave in a vehicle, the initial appearances of the driver could be very important to the statutory question of what was "just and equitable in the circumstances of the case". Similarly, it could be important to what a court thinks is "just and equitable having regard to the claimant's share in the responsibility for the damage". 145. Such considerations were scarcely determinative in Mr Berryman's case because, before he became seriously inebriated as he did, he was able to, and did, observe Ms Joslyn engaged in a similar pattern of extended consumption of alcohol. Although Mr Berryman went to sleep at 4.00 am, and may not have seen Ms Joslyn, as described, "staggering drunk" at about that time, it cannot seriously be suggested that it was not open to the primary judge to infer that Mr Berryman was aware of her extensive drinking. Her deceptive appearance of sobriety at the time he offered her his keys and exchanged positions with her at the wheel, whilst not irrelevant, could not in the circumstances enjoy the factual significance which the Court of Appeal assigned to them. Other witnesses who saw her after the accident might say that she showed no signs of intoxication. But Mr Berryman knew differently. This will commonly be the case where a driver and passenger have engaged, together or close by, in an extended bout of alcohol consumption over a continuous interval." 19 Hayne J agreed that the appeal should be allowed but considered that no error had been shown in the primary judge's apportionment of responsibility to Mr Berryman at 25%. However, his view on this issue did not command a majority as the other justices did not decide that issue but remitted it to this Court for determination.

The relevant principles with respect to the interference by this Court in the primary judge's apportionment of responsibility. 20 So far as Ms Joslyn's position is concerned, s 74(3) of the Motor Accidents Act provides for the reduction of the damages recoverable by reference to what "the court thinks just and equitable". On the other hand, s 10(1) of the Law Reform (Miscellaneous Provisions) Act 1965 mandates reduction by reference to what "the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage". The latter provision was considered in Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492, 493-494 where, in a joint judgment, the court said: "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ( Pennington v Norris ) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd; Smith v McIntyre and Broadhurst v Millman and the cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance." 21 It is well established that findings about apportionment of responsibility are not lightly to be disturbed. In a passage from Podrebersek, cited by Hayne J in Joslyn at 1261 [157], the High Court said: "A finding on a question of apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v Macgregor (Owners) . Such a finding, if made by a judge, is not lightly reviewed. The task of an appellant is even more difficult when the apportionment has been made by a jury: Zoukra v Lowenstern . 22 In Joslyn Kirby J dealt with what he referred to as the "rule of restraint". His Honour advanced the following three factors which, he said, reinforced the need for restraint in disturbance of decisions about contributory negligence and apportionment (at 1255 [119]): "(1) The issue of contributory negligence is essentially a factual question, and therefore the primary judge (or jury) will have relevant advantages over an appellate court that will often be critical for the determination of the issue; (2) The apportionment legislation conferred upon the decision-maker a power to reduce the recoverable damages "to such an extent" as the court determines "having regard to" a consideration expressed in very general language ("the claimant's share in the responsibility for the damage") that evokes the exercise of a quasi-discretionary judgment upon which different minds may readily come to different conclusions; and (3) The broad criteria by which such decisions are made at trial (including by reference to what "the court thinks just and equitable" in the case) make it difficult, absent a demonstrated mistake of law or fact, to establish the kind of error that, alone, will authorise an appellate court to set aside the decision and any apportionment of the trial judge and to substitute a different decision or apportionment on appeal." 23 His Honour acknowledged [120] that once error is shown, whether of law or fact, the appellate court is authorised to alter any apportionment for contributory negligence made at trial which is shown to have been affected by such error. In the present case, he considered [121] that the fact that the primary judge's opinion as to Mr Berryman's "share in the responsibility for the damage" depended upon his evaluation of the entirety of the evidence "presented a sound reason for restraint". 24 Furthermore, his Honour considered (at 1258 [133]) that s 74(3) of the Motor Accidents Act, which left wholly at large the assessment of appropriate apportionment by reference to nothing other than what "the court thinks just and equitable", "…introduces into appellate review of decisions on apportionment for contributory negligence in cases of motor accidents an even greater obstacle to the demonstration of appealable error." 25 To the foregoing should be added the well-known principles concerning the restraint upon the interference of an appellate court in the exercise by a trial judge of a discretion expounded by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499, 504-505. Their Honours added the following observation, in cases where it may not be discernable that the trial judge has acted upon a wrong principle or has mistaken the facts or has taken into account some irrelevant matter: "It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."

The submissions of Ms Joslyn and the Council 26 A number of submissions were advanced as to why the primary judge's discretion had miscarried. The first related to his reduction of Mr Berryman's responsibility for his injuries from 33?% to 25% as a consequence of his finding that Ms Joslyn exhibited none of the obvious signs of intoxication which one would have expected to be present at the time Mr Berryman handed over control of his vehicle to her. As the primary judge said, "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." 27 It was submitted that the primary judge had therefore injected a subjective element into the assessment process which involved an error of law. Alternatively, it involved an error of fact in that, had Mr Berryman been the ordinary, reasonable, sober person described by McHugh J, with knowledge of Ms Joslyn's significant alcohol consumption, lack of sleep with consequent fatigue as well as with knowledge of the propensity of his vehicle to roll, he could not, acting reasonably, have been influenced by the fact that she, at the time of handover, did not appear to be intoxicated. 28 It is true that Kirby J in [144] and [145] of his judgment in Joslyn regarded Ms Joslyn's deceptive appearance of sobriety as having little factual significance albeit that it was not irrelevant indicating, perhaps, that the primary judge would not be in error in attributing some weight to that factor. However, in the present case, it seems to me that the primary judge has given the matter of Ms Joslyn's appearance at the time of the handover a great deal of significance in that he found that it would have influenced Mr Berryman if he had properly put his mind to the issue of whether she was capable of driving at that time. In so doing, his Honour has allowed Ms Joslyn's appearance to override the significance of his findings that Mr Berryman ought to have been aware that, as a consequence of what had occurred over the previous 12-36 hours, there was no way that Ms Joslyn was fit to drive at that time, irrespective of her appearance. As McHugh J said (at 1242 [40]): "Mr Berryman's inability to keep awake and his agreement to stop driving increased the probability that her drinking and lack of sleep made her unfit to drive."

If ever there was a case of appearances being deceptive to the knowledge of the observer, this was it. 29 In my opinion, therefore, the primary judge has erred in the manner in which he reduced his assessment of Mr Berryman's contributory negligence from 33?% to 25%. On that basis, his assessment of Mr Berryman's contributory negligence should be set aside and the exercise of apportionment should be undertaken afresh by this Court. 30 It was also submitted that the primary judge's assessment of 25% (or for that matter, 33?%) was so unreasonable and plainly unjust as to entitle this Court to infer that in some way his Honour had failed properly to exercise the discretion that reposed in him. In particular, it was contended that it was difficult to imagine a worse case than the present in terms of the gross failure of Mr Berryman to take care for his own safety particularly given his ultimate realisation that he, himself was in no fit state to drive. On the other hand, Mr Berryman submitted that 25% and, a fortiori, 33?% was within the range which it was open to the primary judge to adopt as a matter of sound discretionary judgment. 31 In my opinion, the submissions of Ms Joslyn and the Council should be accepted. Were it not for Ms Joslyn's appearance at the time of the handover, the primary judge would have assessed Mr Berryman's contributory negligence at 33?%. Without that factor and on the basis of the facts as found by the primary judge and repeated by the High Court, it is difficult to find any mitigating factor that might have explained or justified Mr Berryman's conduct not only in driving the vehicle himself but also in handing its control over to Ms Joslyn. Whilst he was driving the vehicle himself, he was at least aware of its idiosyncratic propensity to roll. Furthermore, he was licensed and was experienced at driving the vehicle. He had even eaten at the McDonald's restaurant, which they had visited shortly before the accident. None of those factors applied to Ms Joslyn, as Mr Berryman well knew. She had never driven the vehicle; she had no idea of its propensity to roll; she was unlicensed and had not driven for three years; she had not eaten at the McDonald's restaurant and she had had less sleep than Mr Berryman. 32 In the foregoing circumstances, I am of the opinion that whether one adopts the primary judge's assessment of 25% or 33?%, both were so inadequate as to give rise to a result which, in my opinion, was unreasonable and plainly unjust. It was well outside any exercise by his Honour of a sound discretionary judgment.

Reassessment of Mr Berryman's contributory negligence 33 It thus falls to this Court to reassess Mr Berryman's contributory negligence. It is unnecessary to repeat the factual circumstances that inform that judgment. The Council submitted that his responsibility for his injuries should be assessed at 80%. Ms Joslyn submitted that it should be assessed at 50%. It was further submitted that this was a case where a differential assessment could be made. The Council submitted that the primary judge had found that its negligence was of a passive nature in that it had only breached its duty of care to Mr Berryman by failing to erect an appropriate curve warning sign whereas Ms Joslyn's negligence was of an active nature with the consequence, in the circumstances, that she was more culpable than was the Council. 34 The culpability of each of Ms Joslyn and the Council was recognised by the primary judge and reflected in his apportionment of responsibility for Mr Berryman's injuries at 10% for the Council and 90% for Ms Joslyn. However, that apportionment as between defendants is irrelevant to the task in hand. It requires consideration of what is "just and equitable" between the relevant parties. It is true, as pointed out by the High Court in Podrebersek, the apportionment exercise between a plaintiff and defendant of their respective shares in the responsibility for the plaintiff's damage involves a comparison both of culpability and of the relevant importance of the acts of the parties in causing those injuries. 35 A comparative examination of the conduct of each negligent party is thus required. However, in the circumstances of the present case, I do not consider that that process and the determination of what is "just and equitable" requires a differential determination of Mr Berryman's contributory negligence vis-à-vis Ms Joslyn on the one hand and the Council on the other. The relevant inquiry requires a consideration of the conduct of Mr Berryman, which is a constant with respect to each defendant. The apportionment of responsibility for the damages awarded to Mr Berryman as between Ms Joslyn and the Council and the comparison called for in that exercise of the culpability of each in causing Mr Berryman's injuries, is catered for by the contribution which each of them was found by the primary judge to have made thereto. There would be an element of double dipping if that exercise were also to be undertaken in assessing Mr Berryman's contribution to his own injuries as a consequence of his own lack of care. Accordingly, I would reject the Council's differential argument. 36 In my opinion, taking into account all the circumstances, I would consider that it would be just and equitable to reduce Mr Berryman's verdict against both Ms Joslyn and the Council by 60% as a consequence of his contributory negligence. 37 The parties agreed that, in the event that this Court determined to set aside the primary judge's assessment of Mr Berryman's contributory negligence, it should defer the making of formal orders and permit the parties to bring in short minutes. This is an appropriate course. I would simply foreshadow the following:

Mr Berryman's appeal should be dismissed with costs but the cross-appeal of Ms Joslyn should be allowed with costs.

(b) In appeal CA 40942/99 38 This appeal should be allowed. There appears to have been two major issues in that appeal. The first was the Council's appeal against the primary judge's finding of liability against it which failed before this Court and which was not the subject of special leave. The second was that part of the Council's appeal which challenged the primary judge's assessment of the extent of Mr Berryman's contributory negligence on which it has succeeded. The Council and Mr Berryman should, therefore, in the absence of agreement, provide short written submissions as to the order for costs for which each contend in respect of that appeal. Draft short minutes and any submissions on costs should be filed within 14 days of the date of this judgment. **********

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