Berryman v Joslyn; Wentworth Shire Council v Joslyn (2) [2004] NSWCA 239 (16 July 2004)

Last Updated: 26 July 2004

NEW SOUTH WALES COURT OF APPEAL

CITATION: Berryman v Joslyn; Wentworth Shire Council v Joslyn (2) [2004] NSWCA 239

FILE NUMBER(S):

40888/99

40942/99

HEARING DATE(S): On papers

JUDGMENT DATE: 16/07/2004

PARTIES:

Allan Troy Berryman

Sally Inch Joslyn

Wentworth Shire Council

JUDGMENT OF: Mason P Beazley JA Tobias JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 429/98

LOWER COURT JUDICIAL OFFICER: Boyd-Boland A-DCJ

COUNSEL:

A: M L Williams SC / K Pryde

1 R: B Toomey QC / G Charteris

2 R: P Garling SC / J Morris

SOLICITORS:

A: Carroll & O'Dea, Sydney

1R: McMahons, Sydney

2R: Phillips Fox, Sydney

CATCHWORDS:

COSTS - contributory negligence - first appeal reversed by High Court - party successful on remitted hearing re contributory negligence - ultimate liability reduced - determination of costs in first and remitted hearing

LEGISLATION CITED:

Motor Accidents Act 1988

Supreme Court Rules 1970

Suitors' Fund Act 1951

DECISION:

CA 40888 of 1999

(a) Appeal dismissed

(b) The appellant to pay the respondents' costs of the appeal

(c) Cross appeal by the first respondent allowed

(d) Vary the orders made by Boyd-Boland A-DCJ on 5 November 1999 by

(i) substituting the sum of $798,034.52 for the sum of $1,496,314.77 in respect of the appellant's claim against the first respondent

(ii) substituting the sum of $79,803.45 for the sum of $149,631.47 in respect of the first respondent's cross-claim against the second respondent

(e) The appellant to repay to the first respondent the sum of $698,280.10 paid to him pursuant to the orders of Boyd-Boland A-DCJ made on 5 November 1999 together with interest thereon from the date of payment to the date of repayment at the rate prescribed pursuant to Pt 40 r 7(2) of Schedule J of the Supreme Court Rules 1970

(f) The appellant to pay the first respondent's costs of her cross-appeal but to have a certificate under the Suitors' Fund Act 1951 with respect to those costs if otherwise entitled thereto

CA 40942 of 1999

(a) Appeal dismissed

(b) The appellant to pay the second respondent's costs of so much of the appeal as related to the issue concerning the appellant's liability to the second respondent

(c) The second respondent to pay the costs of the appellant and the first respondent with respect to the issue of contributory negligence but, with respect to such costs, to have a certificate under the Suitors' Fund Act 1951, if otherwise entitled thereto.

JUDGMENT:

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 16 July 2004

ALLAN TROY BERRYMAN v SALLY INCH JOSLYN & ANOR

Judgment on Orders and Costs

1 MASON P: I agree with Tobias JA.

2 BEAZLEY JA: I agree with Tobias JA.

3 TOBIAS JA: The substantive judgment in this matter was published on 23 April 2004. The effect of the judgment was that Ms Joslyn and the Council were successful in having the primary judge's assessment of Mr Berryman's contributory negligence increased from 25% to 60%.

4 The practical effect of this Court's assessment of Mr Berryman's contributory negligence is that the judgment entered by the primary judge against Ms Joslyn will be reduced from $1,496,314 to $798,034.44. However, there will be no reduction in his Honour's judgment against the Council in the sum of $750,000. The reason for this is that the primary judge assessed the damages payable by the Council at $2,505,311 which, when reduced by 60%, results in a figure of $1,002,124.40. To have reduced the amount payable by the Council below the judgment figure of $750,000 would have required a finding of contributory negligence on the part of Mr Berryman at or greater than 70%.

5 The consequence of the foregoing is that whereas Ms Joslyn has succeeded in having the judgment against her significantly reduced, the Council has failed to achieve such a result. Having Mr Berryman's contributory negligence increased from 25% to 60% therefore, had no practical effect on the amount of the judgment entered by the primary judge against the Council.

6 We have now received submissions on the issue of costs. The limited areas of difference between the parties are referred to below.

Appeal No. CA 40888 of 1999

7 Mr Berryman instituted this appeal against the primary judge's assessment of his contributory negligence at 25%. In the appeal the subject of this Court's decision on 11 April 2001 (the first appeal hearing), Mr Berryman argued firstly, that he was not guilty of contributory negligence at all and, secondly, that if he was the percentage reduction of his verdict should be less than the 25% assessed by the primary judge. He was successful on the first argument in the first appeal hearing, but that decision was reversed by the High Court. On the remitter hearing, Mr Berryman abandoned the second of his arguments in his appeal. It follows that that appeal must be dismissed and that Mr Berryman should be ordered to pay the costs of both Ms Joslyn and the Council to that appeal.

8 Ms Joslyn cross-appealed against Mr Berryman contending that the primary judge should have found up to 80% contributory negligence on his part. On the remitter hearing she has succeeded in establishing the figure of 60%. Clearly, her cross-appeal should be allowed.

9 However, Mr Berryman submits that although he should pay Ms Joslyn's costs of her cross-appeal on the remitter hearing, there should be no order as to her or the Council's costs of the first appeal hearing. The foundation for this submission is that Ms Joslyn succeeded in the High Court upon the basis of that Court's interpretation of s 74 of the Motor Accidents Act 1988 (the Act) and that the Court of Appeal had erred in failing to take that provision into account. It was submitted that s 74 of the Act was not raised by Ms Joslyn (or anyone else) either in written submissions or oral argument in the first appeal hearing with the consequence that each party should bear his, her or its own costs thereof.

10 The Act was referred to by the primary judge in his judgment (page 15) and by Ms Joslyn in her written submissions filed for the first appeal hearing. However, in both cases, it was referred to in the context of a submission by Ms Joslyn that although the defence of voluntary assumption of risk had been abolished by the Act, contributory negligence had been retained. There was no specific reference to s 74 although it is that provision that maintains the availability of contributory negligence in motor accident cases.

11 The primary judge found Mr Berryman guilty of contributory negligence but did not differentiate between such a finding based upon common law principles and s 74. This Court, in the first appeal hearing, determined that Mr Berryman was not guilty of contributory negligence presumably upon common law principles for it made no reference at all to the Act. In the High Court the judgments dealt with contributory negligence both at common law and under s 74. Their Honours found that Mr Berryman was guilty of contributory negligence both at common law and under s 74.

12 Mr Berryman argued before this Court in the first appeal hearing that he was simply not guilty of contributory negligence at all. He succeeded before that court but failed in the High Court. In these circumstances, I see no reason why either Ms Joslyn or the Council should be deprived of their costs of the first appeal hearing.

Appeal No. CA 40942 of 1999

13 The Council appealed against the finding of liability of the primary judge and also against his Honour's assessment of Mr Berryman's contributory negligence at 25%. It failed on the issue of liability with the consequence that that part of the Council's appeal should be dismissed with costs. It failed on the question of contributory negligence in the first appeal hearing but succeeded in the High Court. However, Mr Berryman submits that in order to succeed in the first appeal hearing, not only was it necessary for the Council to successfully uphold the primary judge's finding that Mr Berryman had been guilty of contributory negligence but also to establish that that contributory negligence should be assessed at 70% or greater for otherwise it would inevitably suffer a judgment of $750,000.

14 On the remitter hearing, so it was submitted, the Council again could only succeed in having the judgment against it reduced if it established that Mr Berryman's contributory negligence was 70% or greater. No doubt it was for this reason that it contended on the remitter hearing that Mr Berryman's contributory negligence should be assessed at 80%. It has failed in that submission with the consequence that there will be no reduction in the judgment of Mr Berryman against the Council in the sum of $750,000. In these circumstances, Mr Berryman submitted that as the Council has failed to have the judgment entered against it by the primary judge reduced, the Council's appeal against that judgment should be dismissed and it should be ordered to pay Mr Berryman's costs of both the first appeal hearing and the remitter hearing.

15 Although the Council has failed in its appeal insofar as it sought to reduce the judgment against it of $750,000, it has succeeded in company with Ms Joslyn in increasing Mr Berryman's contributory negligence from 25% to 60%. Although that increase does not impact upon Mr Berryman's judgment against the Council, it does impact as between Ms Joslyn and the Council with respect to Ms Joslyn's cross-claim against the Council for contribution.

16 With respect to that cross-claim, the primary judge ordered that Ms Joslyn have judgment in the sum of $149,631.47 being 10% of the judgment obtained by Mr Berryman against her in the sum of $1,496,314.77. As a consequence of Ms Joslyn and the Council succeeding in having Mr Berryman's damages reduced by 60% (as a consequence of his contributory negligence), not only is there a reduction of the judgment in favour of Mr Berryman against Ms Joslyn from $1,496.314.70 to $798,034.52, but also there will be a reduction in the judgment obtained by Ms Joslyn against the Council on her cross-claim from $149,631.47 to $79,803.45.

17 Accordingly, although the Council has failed to obtain any reduction in the amount of Mr Berryman's judgment against it, it has succeeded in obtaining a reduction in its ultimate liability to Mr Berryman in the amount of $69,828.02. In these circumstances, I am of the opinion that although the appropriate order is that the Council's appeal should be dismissed, Mr Berryman should pay the Council's costs of its appeal with respect to the issue of contributory negligence but should have his costs with respect to the issue of liability.

18 As I have observed, Ms Joslyn cross-claimed against the Council for contribution and, as I noted in [5] of the substantive judgment, the primary judge apportioned liability as to 90% to her and 10% to the Council. That apportionment is reflected in the order made by his Honour on 5 November 1999 with respect to that cross-claim. It assumes that Mr Berryman will recover the whole of his judgment against Ms Joslyn and that the Council will contribute 10% thereof. His Honour reserved to the Council liberty to apply in relation to its cross-claim against Ms Joslyn in the event that Mr Berryman calls upon it to pay the amount of the judgment recovered by him against the Council. Ms Joslyn has included in the proposed Short Minutes of Order annexed to her submissions a draft order that in the event of Mr Berryman enforcing the Council's cross-claim against Ms Joslyn, the latter should pay $675,000 as her contribution. However, I do not see that it is necessary to make that order as the position is covered by the reservation by the primary judge of liberty to apply if that event materialises.

Proposed orders

19 I would therefore propose the following orders:

CA 40888 of 1999

(a) Appeal dismissed

(b) The appellant to pay the respondents' costs of the appeal

(c) Cross appeal by the first respondent allowed

(d) Vary the orders made by Boyd-Boland A-DCJ on 5 November 1999 by:

(i) substituting the sum of $798,034.52 for the sum of $1,496,314.77 in respect of the appellant's claim against the first respondent;

(ii) substituting the sum of $79,803.45 for the sum of $149,631.47 in respect of the first respondent's cross-claim against the second respondent.

(e) The appellant to repay to the first respondent the sum of $698,280.10 paid to him pursuant to the orders of Boyd-Boland A-DCJ made on 5 November 1999 together with interest thereon from the date of payment to the date of repayment at the rate prescribed pursuant to Pt 40 r 7(2) of Schedule J of the Supreme Court Rules 1970

(f) The appellant to pay the first respondent's costs of her cross-appeal but to have a certificate under the Suitors' Fund Act 1951 with respect to those costs if otherwise entitled thereto.

CA 40942 of 1999

(a) Appeal dismissed

(b) The appellant to pay the second respondent's costs of so much of the appeal as related to the issue concerning the appellant's liability to the second respondent.

(c) The second respondent to pay the costs of the appellant and the first respondent with respect to the issue of contributory negligence but, with respect to such costs, to have a certificate under the Suitors' Fund Act 1951, if otherwise entitled thereto.

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LAST UPDATED: 19/07/2004