Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Bevan v Coolahan [2019] NSWCA 217 Hearing dates: 11 June 2019 Decision date: 05 September 2019 Before: Basten JA at [1];
Leeming JA at [36];
McCallum JA at [130]Decision: 1. Appeal dismissed.
2. Cross-appeal dismissed.
3. Appellant to pay the respondents’ costs in this Court.Catchwords: NEGLIGENCE – motor vehicle accident – occupants of vehicle participants in joint criminal enterprise to obtain illicit drugs – whether driver owed duty of care to passenger – whether Civil Liability Act 2002 (NSW), s 54 displaced principles in Miller v Miller (2011) 242 CLR 446; [2011] HCA 9 – whether statutory purpose of criminal laws incongruous with driver owing passenger a duty of care – whether passenger complicit in driver’s offences – whether primary judge’s assessment of contributory negligence erroneous Legislation Cited: Civil Liability Act 2002 (NSW), ss 3A, 3B, 4, 5H, 5M, 5L, 5R, 32, 44, 45, 52, 53, 54
Defamation Act 2005 (NSW), s 6
Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 11, 11A, 12, 19
Evidence Act 1995 (NSW), s 9
Interpretation Act 1987 (NSW), s 34
Road Transport Act 2013 (NSW), ss 111, 112, 117
The Criminal Code (WA), ss 8, 371A, 378
Uniform Civil Procedure Rules, r 36.16Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA Trans 233
Bevan v Coolahan [2018] NSWDC 410
Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139
Brighten v Traino [2019] NSWCA 168
Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161; [2003] HCA 49
Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70
Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7
Ffrost v Stevenson (1937) 58 CLR 528; [1937] HCA 41
Gala v Preston (1991) 172 CLR 243
Hackshaw v Shaw (1984) 155 CLR 614; [1984] HCA 84
Henwood v The Municipal Tramways Trust (South Australia) (1938) 60 CLR 438; [1938] HCA 35
Holland v Tarlinton (1989) 10 MVR 129
Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44
IL v The Queen (2017) 262 CLR 268; [2017] HCA 27
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Jackson v Harrison (1978) 138 CLR 438
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; [1979] HCA 26
Meadows v Ferguson [1961] VR 594
Miller v Miller (2011) 242 CLR 446; [2011] HCA 9
Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30
National Coal Board v England [1954] AC 403
O’Connor v S P Bray Ltd (1937) 56 CLR 464; [1937] HCA 18
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241; [2008] NSWCA 204
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Details
- AGLC
- Bevan v Coolahan [2019] NSWCA 217
- Case
- [2019] NSWCA 217
- Decision Date
CaseChat Overview and Summary
The appeal concerned a motor vehicle accident where the occupants of the vehicle were engaged in a joint criminal enterprise to obtain illicit drugs. The central dispute revolved around whether the driver owed a duty of care to the passenger in these circumstances, and if so, whether the *Civil Liability Act 2002* (NSW), specifically section 54, displaced the principles established in *Miller v Miller* (2011) 242 CLR 446. The court also considered whether the statutory purpose of criminal laws was incongruous with a driver owing a duty of care to a passenger, and whether the passenger was complicit in the driver's offences. Finally, the primary judge's assessment of contributory negligence was challenged.
The Court of Appeal held that the *Civil Liability Act 2002* (NSW) did not displace the common law principles established in *Miller v Miller*. The court reasoned that the statutory purpose of criminal laws, which is to punish and deter criminal conduct, was not incongruous with a driver owing a duty of care to a passenger, even when engaged in a joint criminal enterprise. The court found that the passenger's complicity in the driver's offences did not negate the existence of a duty of care. Furthermore, the court determined that the primary judge's assessment of contributory negligence was not erroneous.
Consequently, the appeal was dismissed, and the cross-appeal was also dismissed. The appellant was ordered to pay the respondents' costs in the Court of Appeal.
The Court of Appeal held that the *Civil Liability Act 2002* (NSW) did not displace the common law principles established in *Miller v Miller*. The court reasoned that the statutory purpose of criminal laws, which is to punish and deter criminal conduct, was not incongruous with a driver owing a duty of care to a passenger, even when engaged in a joint criminal enterprise. The court found that the passenger's complicity in the driver's offences did not negate the existence of a duty of care. Furthermore, the court determined that the primary judge's assessment of contributory negligence was not erroneous.
Consequently, the appeal was dismissed, and the cross-appeal was also dismissed. The appellant was ordered to pay the respondents' costs in the Court of Appeal.
Orders
Orders of the court
1. Appeal dismissed.
2. Cross-appeal dismissed.
3. Appellant to pay the respondents’ costs in this Court.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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