Gala & Ors v Preston

[1990] HCATrans 271

At,r ..i,, AUSTRALIA,,& ---).)-))-)~~~--''

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B52 of 1989

B e t w e e n -

MICHAEL GALA, JOHN CHAPMAN,

MARLENE CHAPMAN and SUNCORP

INSURANCE AND FINANCE

Appellants

and

FRANK RAYMOND PRESTON

Respondent

MASON CJ

BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRON.J

McHUGH J

Gala(3) 16 8/11/90

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 NOVEMBER 1990, AT 10.22 AM

(Continued from 7/11/90)

Copyright in the High Court of Australia

MASON CJ:	Yes, Mr Keane.
MR KEANE:	Thank you, Your Honour.  Your Honours will

appreciate from the reasoning of the majority

judgment of the Full Court that the reasoning of

this Court, and in particular the majority of this

Court in Cook v Cook, was regarded by Their Honours
as being an important constraining influence in the

approach they took to the decision in Smith v

Jenkins and its application to the facts of the present case.

In our submission, Cook v Cook, (1986)

162 CLR 376 - we do not propose to take

Your Honours to it in detail - confirms that in

addressing the question whether a particular

defendant owes to a particular plaintiff a duty of

care, that is to say whether the necessary

relationship of proximity exists, the Court

examines all the circumstances that throw light on

the nature of that relationship.

Your Honours, in our submission, Smith v

Jenkins stands as an affirmation that the
circumstance that the plaintiff and the defendant
are jointly engaged in a criminal act is
inconsistent with the existence of a duty of care

inter se in respect of the performance of that very

act.

DAWSON J:  Why is it inconsistent? I can understand as a

matter of policy one does not extend protection of

the law, but why is it consistent?

MR KEANE:  Your Honour, one might say, "Why was there a

doctrine of common employment"; It was as a rule

of the common law; it was abolished by the

intervention of the legislature because it was

perceived by the legislature to be a bad rule, but

it was a rule. In our respectful submission, it

has never been the position that a cause of action
has been available to a plaintiff who stands in

such a relationship.

DAWSON J: But I am asking you the reason. Is it because

the law says that there ought not to be because

crime should not be encouraged but should be

discouraged, that is a policy reason, or is it

because it is not possible, sensibly, to erect a

duty of care or is it a combination of both?

MR KEANE:  Your Honours, in the judgments in Smith v Jenkins

it seems to be put squarely on the basis that as a

matter of policy a duty will not be recognised. In

Gala(3) 17 8/11/90

the later judgment in Jackson v Harrison it seems

that the basis for the rule is identified as being

rather the inability of the court or the

unwillingness of the court to identify those

features that bear upon the proper conduct and the

particular activity.

DAWSON J:  But the ..... will vary, will it not? I mean two

safe breakers it might be a bit difficult, but

simply driving along a road some distance from the

place where the car was stolen is not difficult.

What do you say the reason for the rule is?

MR KEANE:  Your Honour, we say the reason for the rule is

that the law has always rejected the notion that a

criminal should be entitled to recover compensation

from the person with whom he has acted jointly in

committing a crime. One might say, as

Mr Justice Kitto said in Smith v Jenkins, that it

rests on the notion that there is no contribution

between tortfeasors.

DAWSON J:	So you say it is a policy reason?
MR KEANE:	Yes.

DEANE J: What if the respondent had been injured in a

collision with another car caused by the negligence

of the driver of the other car. On what you have

just said he would be entitled to recover.

MR KEANE:  Yes, Your Honour, and we would not suggest that

he should not.

DEANE J:  And what if the driver of that other car joined

the driver of the respondent's car as a third party

for contribution, what would be the position then?

MR KEANE:	In those circumstances, Your Honour, he would not be able to recover contribution on the footing that
the contribution statute which presupposes the existence of a liability in both defendants as
tortfeasors would not catch the driver of the stolen vehicle and we recognize, we recognize frankly - - -

DEANE J: That is just an anomalous - - -

MR KEANE:  - - - that there is an anomaly and the anomaly,

perhaps, might be said to arise from the terms of

the constitution statute.

DAWSON J:	Why should he be able to recover against the driver of the other car in that situation?
MR KEANE:	The criminal? Because in those circumstances the question is whether the driver of the other car

Gala(3) 18 8/11/90

owes a duty to other users of the highway, and the

answer is yes.

DAWSON J: Why should you not say there is no proximity in

that situation?	He has placed himself outside the
law. Therefore	he cannot look to the law for
protection.

MR KEANE:  Your Honour, we do not submit, with respect, that

a wrongdoer is an outlaw.	We do not submit that he
is caput lupinurn.

DAWSON J: Well, perhaps that is a bit too sweeping, but

whilst he is engaged in the criminal enterprise he

is not owed a duty of care by others.

MR KEANE:	Your Honour, we make that submission because of the nature of the relationship between the
participants to the enterprise, and - - -

DAWSON J: If the object is to discourage criminal conduct,

then that would be a discouragement.

MR KEANE: It would certainly be a discouragement. It would

certainly be consistent with that policy. We do

not submit that the law has formulated rules that

go quite so far towards the pursuit of that policy.

TOOHEY J: Well, your proposition appears to be confined.

It need only be confined for the purposes of this case to two persons, plaintiff and defendant, who are jointly engaged in a criminal enterprise.

MR KEANE:  Yes, Your Honour, that is so. I do not wish to

take the Court's time unnecessarily to refer to the

passages in Cook v Cook. Perhaps it can suffice if

I mention that in Cook v Cook in the majority

judgment there are a number of references, for

example, in the judgment of Sir Owen Dixon in

Joyce's case to the relevance of the relationship between the particular parties to the proposed duty affecting the existence of their duty, what they

might reasonably expect inter se.

DAWSON J: But if the basic reason is policy, why should the fact that the other person who is also engaged in a

criminal enterprise matter?

MR KEANE:  In the sense, Your Honour, that why should not

the rules be broader?

DAWSON J: The policy is to discourage criminal conduct and

the person who is injured is engaged in criminal

conduct at the time he suffers the injury, why

should it matter, or why should there be a

requirement that the other also should be engaged

in criminal conduct?

Gala(3) 19 8/11/90

MR KEANE:	Your Honour, if one were putting a broad notion of public policy as some overriding feature denying
relief, then what Your Honour proposes to me might
follow, and might find its formulation in a broader
ground for denying relief. That does not appear to
be the course that has been taken in the
authorities. It is not the course that was taken
in Smith v Jenkins where the majority, in our
respectful submission - - -

DAWSON J: Yes, but apart from authority, let us leave that

on one side for a moment. Just look at the

principles.

MR KEANE: Well, apart from authority, Your Honour, in terms

of principle one might say that one refrains from

attempting the formulation of a broad rule to give

effect to the broad policy that Your Honour

proposes because of the myriad circumstances in

which it might seem to create anomalies. One is

attracted, with respect, to answering just so much

of the evil as is sufficient to the day because of

the many situations that can arise, many different

complexions that factual situations may bear.

If one were to say,"Why, in principle, does

one not go further?" the answer would be, I

suppose, with respect, that that is not in

accordance with the approach and technique of the

common law, as for example, that technique was

expounded by Sir Cyril Walsh in his judgment in

Smith v Jenkins, to which we will take

Your Honours.

DAWSON J: It sometimes does help to elucidate the problem

by putting examples which carry it a bit further.

MR KEANE:  It does, and the examples that Your Honour put to

us earlier distinguishing or drawing attention to

the existence of a similar policy, which might be

said to sensibly deny relief to the burglars on

their way to the professional engagement when they

have a motor accident, being the same policy that

might deny relief in a case such as the present.

It is interesting that both those examples have

been considered in the House of Lords, in a
decision that is mentioned in Smith v Jenkins, I

think by Lord Asquith, and, in the first case he

said, "Well the law would not deny a relief" and in

the second it would, although, of course, the

policy consideration that would deny relief would

apply in each case.

McHUGH J: But now that proximity reigns, why is there any

necessity to introduce this question of illegality

at all? Why can it not be dealt with just on

proximity principles?

Gala(3) 20 8/11/90

MR KEANE:  Your Honour, it is our respectful submission that

when one performs the task of looking at those
circumstances that throw light on the nature of the

relationship, and which throw light on the care that one might reasonably expect from the other

party to that relationship, when one performs the

task of seeking to ascertain whether there is a

relationship of proximity, then one does take those

matters into account. It is our submission

that - - -

McHUGH J: Is that not a better basis because it might deny

the present plaintiff the right of recovery, yet

would entitle him to recover in a case where

something was done quite outside the risk
contemplated by the illegal venture. For example,

supposing the defendant decided to ram some other

cars on the highway and that was regarded as being
totally outside what was contemplated in the use of

this vehicle, now why should the plaintiff not be

entitled to recover in that situation even though

they are both illegally using a car?

MR KEANE:  Your Honour, in that situation it might be so, on

the basis that the activity in which the driver has

engaged on his own frolic is not their common

enterprise.

McHUGH J: Well that seems a sounder basis than the

illegality basis.

MR KEANE:	But, Your Honour, one would not even need to trouble to get to that basis if there was not an
obstacle at first; if there was not an obstacle to
relief at the first instance.

McHUGH J: But one of the problems that has arisen is that

prior to Cook v Cook in the development of

proximity in recent years it was thought to be a

general duty of care which was, in effect, constant

between road users. Now Cook v Cook in terms

denies that proposition and the moment it denies it

and focuses on the particular relationship between

the two drivers or the two people involved, then it

is a different ballgame. You do not need to go to

illegality, do you? You could hold that in a case
like this that there is no duty in relation to any

risk that could be fairly contemplated to be within

this venture.

MR KEANE: 

One could, but one would say that because the

nature of the relationship is strongly
characterized by the fact that they are thieves.

DAWSON J: 

So what you are saying is, in effect, in some

instances that proximity is largely a matter of

policy, so that you have still got to identify your

Gala(3) 21 8/11/90

policy and you are really only asking the same

question in a different guise.

MR KEANE:  Yes, Your Honour, except that one is asking it at

the point of identifying the existence of a duty

rather than accepting the existence of a

relationship of proximity and then denying relief

by reason of the application of some broad

principle of public policy.

DAWSON J:  I did not understand you to say that that is what

the cases do. What the cases do on one view of

them is refuse to erect a duty.

MR KEANE:  Yes.

TOOHEY J: If you approach it in proximity terms, Mr Keane,

then the fact that the parties are engaged on some

illegal enterprise perhaps has no more than

evidentiary value. It is a fact to be taken into

account if it may or may not have any relevance in

the circumstances.

MR KEANE:	If one considers the language of Sir Owen Dixon which the majority approved in Cook v Cook that the
care he may expect corresponds with the relation he establishes then we would say that the care that
one thief may expect of the other thief corresponds
with the relation they establish. Mr Justice Owen,
in Smith v Jenkins, posed this test: suppose, in a
case such as this, one of the thieves had actually promised the other that he would drive him with all
due care to a particular destination and during the
course of the trip had driven negligently and had
an accident. Could it possibly be supposed that an action might have lied on the contract? And he
said, "Of course not".

Similarly, where there is no express promise

but where one is concerned to identify the nature

of the care one might expec~ from the relationship

- no express promise, simply whether the law will

impose a duty and he says, "It can't be supposed

that the court would recognize a duty in those

circumstances". He says, "They are not neighbours

in the Lord Atkin sense".

TOOHEY J: But why not? The fact that two people steal a

car does not necessarily imply that the car is

going to be driven in a particular manner. I mean,

it might, given the place from which it is taken

and the circumstances under which it is taken, it

is obvious that it is going to have to be taken off at high speed. Well, that is one situation. If it

is stolen during mid-afternoon from some parking

area, what is there about the illegality that

Gala(3) 22 8/11/90

points to some sort of risk in being in the

vehicle?

MR KEANE:  Your Honour, we do not put it on the basis that there is any special risk that is relevant. I

mean, of course, the possibility of an accident is

inherent as a hazard of driving motor cars, whether

one does it lawfully or unlawfully.

TOOHEY J: It is just that once you get away from public

policy, which has got its own difficulties, you run

into some further problems unless, in the end, you

put the question of illegal conduct, as it were, to

one side except to the extent that it has some

evidentiary value in pointing to the degree of care

that might be expected of the driver.

MR KEANE:	And if that were the case, Your Honour, one would have expected the authorities to put the rule on
the basis of some notion or some relationship to
volenti or to depend upon some causal relationship
between the hazards of the particular venture.

McHUGH J: But one reason for that is what I pointed out to

you, that until recent years there was a widely

held view in the profession that the duties of care were rather constant. You did not say whether this

fellow had less skill than somebody else and

therefore - slight less skill than another driver

and therefore the only duty of care was what was

owed by that particular driver to the passenger, it

was an objective stand but now it is a different

game.

MR KEANE: With respect, as to whether it is a different

game, we would submit that it has long been a rule

that a cause of action does not lie, that the

development of the Donoghue v Stevenson principle

did not subsume that bar and that the development

of the law before and after Donoghue v Stevenson

recognized the need to identify a particular

relevant relationship, giving rise to reasonable

expectation of the exercise of care.

McHUGH J:  You get into the problem then you have cases

like Progress and Properties v Craft and Jackson v

Harrison on the one hand, Smith v Jenkins on the

other and you are really talking about degrees of

illegality. The Court finds reasons for upholding

the claim in one case and the other case loses.

MR KEANE:  That is so. One does not seek, with respect, to

formulate a single rule for all times and all

places. What one does submit is that where there

is a joint unlawful use of the chattel, certainly

in circumstances where it is being used for the

Gala(3) 23 8/11/90

immediate object in contemplation of the parties

taking it - - -

McHUGH J:  But illegal use is illegal use, and it is a

continuing offence, so 3 months later, if these

people had not been apprehended, they are driving

the car together, can the plaintiffs sue?

MR KEANE:  Your Honour would be aware that

Mr Justice Jacobs in Jackson v Harrison suggested

that he thought the position might be different in

those circumstances. As a matter of logic one must

say, with great respect, that it is difficult to

see why that should be so.

McHUGH J:	Exactly.
TOOHEY J:	Mr Keane, where the notion of public policy is

applied to refuse relief does it operate by way of
denying a duty of care, or accepting a duty of
care, but simply saying that in these circumstances

the plaintiff was precluded from recovery?

MR KEANE:  Your Honour, in our submission, the former. Can

we take Your Honours to Smith v Jenkins, 119 CLR

397, to seek to make good that answer. The first

passage, in our respectful submission, that

supports the answer that I made to Your Honour

Justice Toohey's last question commences in the

judgment of Sir Garfield Barwick at page 399 about

four lines from the bottom:

The driving of the car by the appellant, the manner of which is the basis of the respondent's complaint, was in the

circumstances as much a use of the car by the

respondent as it was a use by the appellant.

That use was their joint enterprise of the

moment.

He records the appellant's submission and he goes on:

In my opinion, the appellant, in the

particular circumstances of the case, should

succeed in this submission. But a question

which has considerably exercised my mind is

upon what basis ought the dismissal of the

respondent's action be placed -

The choice is, as Your Honour Mr Justice Toohey

posed it -

The choice it seems to me is between a refusal

of the law to erect a duty of car as between

persons jointly participating in the

performance of an act contrary to the

Gala(3) 24 8/11/90

provisions of a statute making their act a

crime punishable by imprisonment and a refusal

of the courts, upon grounds of public policy,

to lend their assistance to the recovery of

damages for breach in those circumstances of a
duty of care owed by the one to the other,

because of the criminally illegal nature of

the act out of which the harm arose. I have

come to the conclusion that the former is the proper basis. The duty of care, which is the

prerequisite to success in an action of

negligence to recover damages for personal

injuries, is a duty which the law imposes upon

a party by reason of his relationships to

another in the circumstances of the case.	No
doubt considerations of public policy have

their place in the decision in the particular

case to impose or erect such a duty. But

basically it is the relationship of the
parties which gives rise to the duty. Here

the respondent and the appellant, in my opinion, did not relevantly stand in the

relationship of passenger and driver. Their

relationship was that of joint participants in

the very act, itself unlawful in the sense I

have mentioned, out of which the mischief to

the respondent arose. In my opinion, the law

will not hold that a duty of care arose out of

that relationship.

Now, Your Honours, Mr Justice Kitto took a view

different from that. That he did so appears at the

bottom of page 401 in the last paragaraph of text

and going over to 402, in the concluding three

sentences of the first long paragraph on that page

commencing after the citation of Donoghue

v Stevenson.

Your Honours, the basis on which

Mr Justice Kitto considered that relief should be

denied is stated, page 403, in the first two

sentences of the first full paragraph on that page,

where His Honour said: 

The underlying reason of it, I think, is that

is such a case the law regards the joint

illegal conduct as the commission of a single

wrong of which, as a whole, each participant

is guilty.

That view is different from the view of the

Chief Justice, Mr Justice Windeyer, Mr Justice Owen

and Mr Justice Walsh. Mr Justice Windeyer, in our

respectful submission, adopted essentially the same

approach as the Chief Justice. Your Honours, can

we take you to Mr Justice Windeyer's judgment in

that regard, at page 415. Your Honours, at

Gala(3) 25 8/11/90

page 415, half-way down the page you will see the
citation from the judgment of Lord Asquith in

National Coal Board v England which deals with the

examples that Mr Justice Dawson posed earlier.

Going over the page to 416,

Mr Justice Windeyer commences:

Speaking generally, a person is not

disqualified from suing in tort merely because

at the time when he suffered the injury he was

engaged in some form of wrongdoing, unless it
appears that the law against which he offended

precludes him from complaining of the conduct

which caused him harm: Henwood v. Municipal

Tramways Trust.

I will not read to Your Honours the balance of that

paragraph. His Honour formulates that question

which His Honour says is relevant though, in the
last paragraph on that page, where he says:

The question here is not, Is the plaintiff precluded from recovering because he was a

wrong doer? It is, Had the defendant a duty

to the plaintiff to carry out carefully the

unlawful enterprise on which they were jointly

engaged? The problem is circumscribed by the

facts. It is not a wide-ranging general

question of the bearing that unlawful conduct

has on liability in tort. It is whether when

two persons are jointly engaged in a

particular criminal enterprise - unlawfully
taking or using a motor car - one can sue the
other because he has been negligent in the

course of carrying out his part in their

unlawful undertaking.	The tort in question is
negligence.	My judgment is restricted to
that.

DAWSON J:	What about the case of a person who, for instance, robs a shop and in the course of escaping
with the jewels in his fist, trips over a carpet or something which is negligent - or slips on the
floor?

MR KEANE: In the shop?

DAWSON J:  Yes. Can he recover against the shopkeeper?

MR KEANE:  The suggestion in the cases which

Mr Justice Windeyer discusses earlier in the course

of his rather lengthy judgment suggest not.

DAWSON J: Well, why not? There is no relationship between

the two persons. They are not jointly engaged in

the crime.

Gala(3) 26 8/11/90

MR KEANE:	No, but because of the nature of the relationship between occupier and thief is inconsistent with the existence of the relevant relationship of
proximity.
DAWSON J:	Why?
MR KEANE:	Because there is something simply repulsive about

the notion that one is obliged to take due care for
the safe conduct of those engaged in robbing one,
to ensure that that task can be carried out with

all safety and to make him happy in his trade.

DAWSON J: But, you see, it does not seem really then,

whatever is at the bottom of all this, to depend upon two people jointly being engaged in a crime.

MR KEANE:	No, it depends on identifying the relevant relationship between the particular plaintiff and
the particular defendant.

McHUGH J: Well, supposing you have got an employee

knowingly aiding his employer to conduct a shop

outside the statutory trading hours and the

employee is injured in the course of carrying out

his duties in the shop, is he precluded from suing?

MR KEANE:  No, Your Honour, on the authority of

Henwood's case and that - - -

McHUGH J: But they are both, the employer and the employee,

jointly conducting business illegally. They are

engaging in an illegal activity in the conduct of a

business.

MR KEANE:  In that circumstance, no doubt the response that

one would derive from the discussion in

Smith v Jenkins is that in that case the illegality

is remote or incidental.

BRENNAN J:  Is this the proposition, .Mr Keane, that if the

alleged act or omission which is said to be

negligent is an act or omission which in itself

constitutes the commission of an offence, no duty of care is owed by one joint offender to another, provided the illegality does not arise from a

provision which is designed for the protection of

the plaintiff.

MR KEANE:  Your Honour, we would accept that and we would

accept, with respect, that that is the effect of

Progress and Properties v Craft.

BRENNAN J:	You do not put it any wider than that?
MR KEANE:	No, Your Honour.

Gala(3) 27 8/11/90

DEANE J:	Why would that not have barred recovery in Cook?
MR KEANE:	Why would not that deny recovery in Cook?

DEANE J: Yes.

MR KEANE:  Because Cook was not a relationship where there

was relevantly any illegality.

DEANE J:	The negligent act was the act of driving unlawfully without a licence or a permit.
MR KEANE:	There was, though, nothing wrong, nothing

illegal about the use of the vehicle. It was a

feature of the case that one of the parties did not

have a particular authority to use it but there was
nothing wrong about the actual use of the vehicle

itself.

DEANE J:  But the negligent act was the driving which was

unlawful to the knowledge of both people.

MR KEANE:  That is so, and it might be said that a reason

for distinguishing that case from the present would

be that the necessity for skill to the stage of
being able to obtain a licence is a requirement of
the law for the protection both of users of the

vehicle and other users of the highway.

McHUGH J:  What about if it is an unregistered vehicle?

Supposing the passenger and driver both know the vehicle is unregistered?

MR KEANE: 

There are references in the authorities, and in

particular Smith v Jenkins, to say that would be
irrelevant.

McHUGH J: 

But it is an injury arising out of the very

illegality, driving.

MR KEANE:  It is, though, with respect, something that is

incidental to the use of the vehicle rather than

the use of the vehicle itself which is a crime.

McHUGH J:  How do you distinguish between that case and

this case? One says, "You shall not use somebody

else's vehicle without permission", and the other

one - one statute, in effect, says, "You shall not

use a vehicle without the government's permission".

MR KEANE:  If one properly construes the relevant statute

concerning registration in that manner, then we

would accept that the correct result would be that

relief would be refused, if one properly construes

the relevant statute as being a prohibition on the

use of the vehicle and if one can properly conclude

Gala(3) 28 8/11/90

that the parties to the use of it are jointly

engaged in the use of it unlawfully.

TOOHEY J: 

But you may not have to get into that sort of discussion - - -

MR KEANE: 

I would certainly rather not, Your Honour.

TOOHEY J: 

if - - -in fact you are dealing with rules of

public policy. It seems to me it is a more
flexible instrument. It can look to the nature of
the criminal enterprise. It can perhaps refuse

relief when the enterprise involves a serious

breach of the law, not refuse relief when it is
simply some technical breach of the law.

MR KEANE: 

Your Honour, that is the approach that is

suggested by Mr Justice Walsh in Smith v Jenkins.

His Honour says that in passages which commence at

page 431 in the last paragraph on that page where

His Honour deprecates the suggestion that the basis
of the rule is some squeamishness on the part of

the courts in hearing evidence of unlawful conduct

and he goes on then at pages 432 to 434 to make the

point that Your Honour Justice Toohey has made and

to emphasize that one is concerned with a

particular type of criminal enterprise involving
the joint activities of the parties thereto, and he

confines his decision to those facts.

In relation to the point Your Honour

Mr Justice McHugh asked of me a moment ago

concerning registration or the absence of

insurance, I mentioned that that example had been

dealt with in Smith v Jenkins. It is dealt with by

Mr Justice Windeyer at page 424, the first full

sentence:  "There are distinctions".

Mr Justice Windeyer, as well, dealt with the point Your Honour Mr Justice Toohey just raised,

that is to say that there may be different

reactions in terms of policy depending on the

nature of the offence and the circumstances, in the

last paragraph on page 424 and in his concluding

remarks on 425.

TOOHEY J: That is not to say that public policy would

necessarily preclude relief in the present case.	I
know you say it does but it is an avenue of
approach that has something to commend it.

MR KEANE:  Your Honour, in relation to that, we submit that

Smith v Jenkins is a case which stands as a

formulation, if one likes, in terms of duty - it is
an expression of a public policy which finds its

expression in relation to the question of duty.

Gala(3) 29 8/11/90

Your Honours, in relation to that, might we

say that the decision was unanimous; it did settle

a controversy that had arisen between the Supreme

Courts of New South Wales and Victoria. It settled

the controversy decisively, in our submission. It

affirmed the correctness of the decisions of the

New South Wales Court of Appeal in Bondarenko v

Sommers and the supreme court in banco in Godbolt v

Fittock. Its correctness has been subsequently

assumed, save in the respect we mentioned yesterday

in the judgment of Mr Justice Murphy in Jackson v

Harrison.

Your Honours, no question of statutory

interpretation is involved; no question arises of

giving effect to the words of the legislature and,

in particular, might we say that the decision has

stood for 20 years unaffected by legislative action

which might well reflect some satisfaction on the

part of the legislature with the result that the

decision has achieved. In those circumstances, it

would be our submission that Your Honours would not

entertain the submission that has been

foreshadowed, that the decision should be set

aside.

In that regard we would rely on the remarks

made by the court in this connection in John v

Federal Commissioner of Taxation,

(1989) 166 CLR 417 - a case not on our list but we

have copies for Your Honours - and the relevant

passages are at pages 438 to 439 in the joint

judgment and the judgment of Mr Justice Brennan

at 450 to 451.	No doubt those considerations are
still fresh in Your Honours' minds.	We do not

propose ~o take the time to read those passages to

Your Honours but we do mention the longstanding

authority of the decision; the fact that it

settled the controversy; the fact that it is not

alone in that it came after Godbolt v Fittock and

Bondarenko v Sommers; that no question of

interpretation of the legislative will is involved

save, perhaps, an intervention to create a cause of

action which the legislature has been content not

to create.

Your Honours, those are our submission unless

there is some question which Your Honours wish to

raise.

MASON CJ: Thank you, Mr Keane. Yes, Mr Hampson.

MR HAMPSON: If the Court pleases, the submissions - I am

sorry I hand up again the outline or synopsis of

our arguments.

MASON CJ: Yes.

Gala(3) 30 8/11/90

MR HAMPSON:  If the Court pleases, shortly put our

submissions are, first that Smith v Jenkins should

be distinguished and secondly, if the Court finds

that impossible to do, that it should be overruled

and in the submissions relating to the

distinguishing of it we would like to make some

short submissions on the facts of this case and

Smith v Jenkins and we would like to look at the

origin of Smith v Jenkins and also its later
history.

So far as the facts are concerned, our learned friends have dealt with them in considerable detail already. It is important to note that although you had the reference to what the plaintiff said to the

police at page 27 of the appeal book, you did not
have his sworn evidence on the purpose of the trip

which is at page 14 of the appeal book, that is in

examination in-chief at the top:

So, the four of you decided to go up

north, as you put it?--Yes.

Where did you want to go to?--Gladstone.

For what purpose?--Visit relations and

friends and so forth.

and so on. That is what he says was the purpose of

the trip so far as he was concerned and in

cross-examination, at page 26 of the appeal book

starting at about line 10 or thereabouts:

Your plan was to go to Gladstone, you

say, to see relatives? .....

And your friend, Mr Gala, what was his

plan?--He was going on to Rockhampton and do some more break and enters as far as I know.

It was going to be a bit of a joy ride,

wasn't it, from Maryborough north?--! assume

so, but we weren't going to damage the vehicle

neither.

No intention to damage the vehicle and he is asked

about the record of interview and so on and he

confirmed later on, about line 45 that this

business of the intention of Gala and the others to

do some breaking and enterings in Rockhampton,

apparently that was discussed on the way to

Gladstone and Rockhampton, it was apparently after

he got in the car.

So to describe it as a joy ride, well, one has

to look at that in relation to the other evidence

that was given on the matter.

Gala(3) 31 8/11/90

TOOHEY J: Mr Hampson, was there, in fact, a finding by the

trial judge that the conduct of the defendant was

negligent, leaving aside the various questions that

we have been discussing in this appeal or did that

somehow get side-tracked by reason of the view the

trial judge took of the matter of illegality?

MR HAMPSON:  I think that he did find that it otherwise

would have been negligent. Of course, what had

happened was it went off the road and no other

traffic was present and it collided with a tree so

it would be pretty hard to escape.

TOOHEY J: Well, that may be and the Full Court does not

seem to have had much difficulty in substituting a

verdict but I just wonder whether there was a

finding upon which that verdict could be

substituted.

MR HAMPSON:  Yes. I will just ask my learned junior to turn

that - at page 46 of the record, right at the

bottom, about line 60:

There is no evidence to indicate why or precisely how the vehicle left the bitumen

road ..... An explanation for what occurred lies

in the fact that the driver Gala ..... had had

considerable alcoholic liquor .... .

I think this is a case in which I cannot determine an appropriate duty of

care ..... There should be judgment for the

defendant by election.

TOOHEY J:  That is what prompted me to ask the question. As

I say, the trial judge seems to, perhaps

understandably in the view he took of the matter,
not to have made a finding of negligence against

the defendant.

MR HAMPSON:  Yes. He did find contributory negligence, of

course, against the plaintiff and that was a

finding that was obviously made because of the

possibility of an appeal court interfering with his

findings, as he, of course, made findings on

damages and there seems something odd about making

a finding of contributory negligence for that

purpose, if he was not really satisfied that apart

from the matter we have been discussing he would

have found the defendant driver negligent. But,

apparently, there was no express finding,

Your Honour.

TOOHEY J: Yes, thank you.

Gala(3) 32 8/11/90

MR HAMPSON:  So far as Smith v Jenkins are concerned, the

facts have been mentioned. There is no dispute

about that. The real dispute, in Smith v Jenkins,

I suppose, however, is the fact that although the

court was unanimous, no clear ratio emerged in the

case and it was later pointed out by

Chief Justice Barwick in Jackson v Harrison, at pages 442 and 443, that of the judges who gave one

reason only, they seemed to express the reason to

be the absence of a duty of care. There is also

some difficulty in looking at the case as to

whether the judges were really saying the court

cannot erect a duty of care or will not erect a
duty of care.

The difference between the facts in the present case and Smith v Jenkins, perhaps, are not

large but there are some differences which are
significant. First of all, the evidence in Smith v

Jenkins was that the vehicle was being driven at a dangerously high speed; it was put at 80 to 90 miles an hour.

It was said by Mr Justice Jacobs in Jackson v

Harrison, in a passage that was referred to

yesterday, at page 460, that:

It was a jaunt, an escapade, a joy-ride, even

though of a most serious kind from the

beginning to the end.

Whereas, in the present case, there is no evidence

that the vehicle has been driven at a high speed or

in any other dangerous manner and, indeed, so far

as the plaintiff's purpose was concerned, on the

evidence, it seems quite clear that the vehicle was

being used as a means of transportation for him to

visit relations and friends at Gladstone and not to

be used for a joy-ride or driven in a race or at

excessive speed. So there are some significant

differences in the facts.

Going on to Smith v Jenkins now, the origin of

Smith v Jenkins really lies, it would seem, with

respect, in some dicta from English judges,

Lord Asquith in National Coal Board v England

in 1954, (1954) AC at page 428 and 429. He

introduced the two burglars blowing up the safe and
expressed some doubts as to whether one could
recover against the other if they were injured

during the course of blowing up the safe.

Lord Justice Scrutton in Hillen v ICI {Alkali),

(1934) 1 KB 455, had introduced the, probably

exquisitely 18th century idea of the brandy
smugglers coming to the house of the defendant and

lowering - he was on a rope he knew to be

defective - the keg of brandy down to them so that

Gala(3) 33 8/11/90

unfortunately the rope broke and they were injured.

Those dicta seemed in Godbolt v Fittock,

together with some District Court authority in New

South Wales, to carry the day, because there were
no other cases. Mr Justice Sugerman in Godbolt v

Fittock says at page 619 that:

Neither the careful researches of

counsel, nor such supplementary search as I

have been able to make, have led to the

discovery of any case elsewhere in the British

Commonwealth, or in the United States of

America, in which a question of the present

sort arising as between two thieves, or others

in consimili casu, has arisen for direct

decision. Nor has there been any in this

country apart from the two to which I shall

shortly refer. This is, perhaps, to be

expected; and it may be, although it is only
matter of speculation, that the recent
occurrence of three such actions (including
the present action) in this State within a
span of one year is indicative of a belated
recognition of possibilities latent in the

Motor Vehicles (Third Party Insurance) Act,

1942-1951.

The important consideration really was the

absence of any case apart from dicta at that

particular time. Neither has the case been

applied.

BRENNAN J: Mr Hampson, I have a note here that it was

applied in England in Ashton v Turner - - -

MR HAMPSON:  Yes, with the exception of - Your Honour has

anticipated me - I was going to say with the
exception of a decision of Mr Justice Ewbank in a

case called Ashton v Turner.	We do have copies of
it for the Court, in fact, which I can hand up. That is an interesting case because as appears

from the headnote Godbolt v Fittock and Smith v

Jenkins were applied, and although the case was in

1981 - March 1980 rather is the date of the hearing

given on the headnote - the subsequent cases in

this Court were not referred to. So Smith v

Jenkins, as it were, went before His Honour as the

last word of this Court on the particular matter,

and he undoubtedly applied those two cases.

That is the only reported case we can find

where it has been followed, and it has been

followed in the absence of the elucidation to be

obtained in the more recent three judgments of this

Gala(3)	8/11/90 particular Court which have been mentioned during
the argument.

So it does not, in our submission, have a very

respectable pedigree. It certainly has a very

short one, and it does not really have a great

issue because the only case that follows is that

one, and in the other cases efforts are made to

distinguish it, to restrict its operation, to

describe it as being decided on its particular

facts and so forth.

We submit, as indeed appears in the judgment

of the Full Court, that there is appreciable a
progression in the reasoning of this court from

Smith v Jenkins and, in particular, we refer to the passage in Progress and Properties Ltd v Craft at

page 668 where Justice Jacobs, with whom

Justices Stephen, Mason and Murphy agreed, said:

However, the relation of the illegality to the negligence complained of does not require an examination of any special aspect of the

relationship between the participants which

could affect the standard of care to be

expected in the circumstances. Whether or not

it was legal to ride on the hoist platform the

same standard of care in operating the hoist

would be expected of the operator, and the

court would not be obliged to embark on an

inquiry whether the act of the operator was

reasonable, having regard to the illegality of

the enterprise.

In the later case of Jackson v Harrison,

Justice Mason, as Your Honour then was, at

page 455, also discussed the matter. The passage

commences at the bottom of the page, last

paragraph:

If a joint participant in an illegal

enterprise is to be denied relief against a	co-participant for injury sustained in that
enterprise, the denial of relief should be related not to the illegal character of the
activity but rather to the character and
incidents of the enterprise and to the hazards
which are necessarily inherent in its
execution. A more secure foundation for
denying relief, though more limited in its
application - and for that reason fairer in
its operation - is to say that the plaintiff must fail when the character of the enterprise
in which the parties are engaged is such that
it is impossible for the court to determine
the standard of care which is appropriate to
be observed. The detonation of an explosive

Gala(3) 35 8/11/90

device is a case of this kind. But the

driving of a motor vehicle by an unlicensed

and disqualified driver, so long as it does

not entail an agreement to drive the car

recklessly on the highway stands in a somewhat

different position.

Then Your Honour went on to deal with this

particular case and also in that case Your Honour

pointed out that - - -

BRENNAN J:  On that approach, illegality is irrelevant, is

it not?

MR HAMPSON:  Yes, that is so. That is the passage that we

are talking about.

BRENNAN J:	Then how does that sit with Smith v Jenkins?
MR HAMPSON:	Well, Smith v Jenkins, if there is illegality,

that is conclusive. If you have two people

involved in the joint enterprise and there is

illegality, that is the end of the matter.

BRENNAN J: Is your proposition that Jackson v Harrison is

inconsistent with Smith v Jenkins?

MR HAMPSON:  I did not know that I meant to say - perhaps I

could put it this way. If, in fact, you adopt

Smith v Jenkins at its highest and say here you

have a situation where two people are engaged in an

illegal activity jointly, well so too they must

have been in Jackson v Harrison and it does not

matter; I mean, illegality, whether it is contrary

to the Traffic Act or regulations or contrary to
the Criminal Code or whatever it happens to be, it

is illegal.

TOOHEY J: That is reading a fair bit into Smith v Jenkins,

is it not, to put it that broadly, to say that

Smith v Jenkins is authority for the proposition

that whenever there is some illegality attaching to

the conduct with the parties involved, then

recovery is precluded. Smith v Jenkins was a case

dealing with a particular form of unlawful

enterprise.

MR HAMPSON: That is so.

MASON CJ: Indeed, your principal submission is that

Smith v Jenkins decided no such thing.

MR HAMPSON: That is so. That is in fact what - I was going

to come to the passage, in fact, that Your Honour

used in that - - -

Gala(3) 36 8/11/90

MASON CJ: Yes, you have actually lifted two sentences out

of my judgment, incorporated it as a

paragraph in your submissions with, well I

suppose, without acknowledgement. At least

it is not in quotes.

MR HAMPSON: That is so; in other words respectful

plagiarizm, if I might put it that way, Your

Honour, but that in fact is a submission that we

wish to make in relation to that, but that has been

the way it has been frequently characterized; that

people say that that is what Smith v Jenkins decide

when it did not. The passage that I was going to

then is at the bottom of page 453, Your Honour:

It is quite incorrect to assert that

Smith v Jenkins decided that the participants

in a joint illegal enterprise owe no duty of

care to each other. It decided no such thing.

The case was limited to its particular facts.

And so on, the passage goes on there. The matter

continues to be dealt with, though I do not read it

to the Court, at page 454 and 455.

MASON CJ:  I was going to ask you, can you give us a

reference to a decision of the English Court of

Appeal, I think in the last twelve months, in which

the English Court of Appeal followed

Jackson v Harrison?

MR HAMPSON:  No, I am afraid I do not know of that,

Your Honour.

MASON CJ:  I think it is reported in the Weekly Law Reports.

I do not know that it has much significance.

MR HAMPSON:  No. Unfortunately I do not, but we will search

it out though and see if we can provide it. So,

what we say - I might have said before that there
was an inconsistency, I did not mean to say that -
what we are saying obviously is that there is no

necessary inconsistency between Smith v Jenkins and

the judgments of the High Court in Jackson v

Harrison, and that point in fact is made by

Mr Justice Jacobs at page 459 of Jackson v

Harrison. We would submit, however, that the

decisions are better explained, not by recourse to

any absolute rule of public policy, but by, again

as Your Honour said in the passage this time which

I have acknowledged, that one looks at the

hazardous nature of what is being done.

In other words, one comes very close to the

concept of volenti non fit injuria and you look at

whatever the illegal activity is as part of the

whole matrix of fact in which the Court is being

Gala{3) 37 8/11/90

asked to say that there was a duty of care which

was breached and caused injury and in that context,

of course, we have the factual difference between

this case and Smith v Jenkins where the vehicle is

being driven at a high speed as part of, what was

described, as a criminal jaunt and escapade, and in

Bondarenko v Sommers the parties involved, by their

common consent, in a dangerous road race, on a bad

road, at a high speed.

So that the deliberate race in a car stolen

for that purpose, obviously constitutes a special or exceptional circumstance affecting the hazards to which the duty of care owed by the driver to

passengers is directed and one can say there that

there is a direct relationship between the illegal

activity and the standard of care or obligation

imposed upon the driver with respect to his

passenger.

DEANE J: But even if you do not treat illegality as a

threshold bar to an action in negligence, the

illegal nature of the activity will be a

characteristic which is a relevant factor in

determining whether there is a relationship of

proximity that gives rise to a relevant duty of

care.

MR HAMPSON:	Yes, Your Honour.
DEANE J:	And the result in this case might be exactly the

same even though your argument is seen as correct

because of changes in the approach to the law of

negligence.

MR HAMPSON:  Yes. We would submit, the result would not be

the same as in Smith v Jenkins because there are factual differences. But, Your Honour, not only

would it be relevant in the question of seeing
whether there was a duty of care but the illegality

could form a part in deciding what that duty of

care was, as to what standard it was, for example,

as in Cook v Cook, the idea that you do have a

situation where there is a lesser duty of care.

DEANE J: Well, say, for example, in this case a police car

had appeared and the accident had occurred as the

driver of the car was trying to get away from the
police car, would you say there was still a
relevant duty owed to the passenger to drive

carefully?

MR HAMPSON:  Yes, I would unless they could show the

passenger approved of it. Supposing the passenger

said, "Look, there is a police car, go for your

life" or something or other and encouraged it,

encouraged a speedy driving to get away but again,

Gala(3) 38 8/11/90

of course, one is very close there to volenti but

if you do not have that, you have the situation,

surely, where the passenger says, "I do not have a

car or the bus fare to Gladstone but if you steal a

car I will help you with it and I will drive the

two of us about so that I can get a free trip to

Gladstone in the car and you can take the car on to

Rockhampton". Now, in that situation, all that the

person is doing is something that is completely

well known to the courts, much better known now

than it was 20 years ago, how people should behave

in cars on the road.

DEANE J: But you see the point - if you go to the

Chief Justice's judgment at page 456 from where you

have read, His Honour says:

it is impossible for the Court to determine

the standard care which is appropriate to be

observed.

Now, you can readily fit that in to the model law

of negligence and when you come to this case there

are aspects of it which bear directly on the

standard of care. One is, the time they were

driving as related to the crime; the fact they

were pushing on; the dangers of detection by

police and so on. They all lead us into the area

where to overcome that you have to be able to say

it is appropriate for this Court, or for any court,

to define what is the duty of care owed by car

thieves in the course of their journey from the

scene of the crime with discussion of other crimes

at the end of the journey. Well, now, it may well

be that the answer is the Court has to but there is

a problem involved for you in what His Honour has

said there.

MR HAMPSON:  Your Honour, first of all could I say that

factually that is not correct that they were

pushing on in this case. They were travelling, in

fact, quite slowly. They took the car at something

after 7 o'clock; the accident happened after

11 o'clock.

DEANE J:  When I said that I meant it was surely relevant to

the fact that they did not stop for a rest; that

they had stolen the car and they were in a stolen

car.

MR HAMPSON:  I think they did. It was four hours between

taking the car and the accident, to travel a

distance, just a bit beyond Childers, which in fact

would take only about an hour to travel in normal

circumstances. So, it does not seem at all that

that was a case where they were pushing on at all

or had the police in mind and pushing on for that

Gala(3) 39 8/11/90

reason. But, it could be, of course, in evidence -

I do not say it does not but the evidence could

show that in the nature of the illegal activity

there was some hazardous sort of factor.

But that is more appropriate, we would submit,

the way that one should look at it, to say that it

is not an automatic bar in any way. It is

something that you have to consider with everything

else and there may be some situations, I mean, the

English idea - the safe crackers and so forth - you

might have difficulty there in having a standard of

care but not in relation to something as well

known, everyday and clearly observable, so

frequently before the courts, as driving motor

cars.

What illegality you bring into that will

depend upon the facts of a particular case. I

mean, whether or not there is an attempted pursuit

or evading the police, or something of that kind,

there could be lots of factors that one could build

in of course but, generally speaking, most of those

factors could be present with other people in non-

criminal activities beyond, say, breaking the speed

limits on the road and so forth.	They could drive
fast in their own cars and so on.

You also get into great difficulties in this sort of field where you are talking about a joint

venture with the car. It is taking the car and

using it without the consent of the owner and as

soon as that consent was obtained it is no longer

unlawful. So, there is an element in this, if you

are not ·looking at all the facts, Your Honour,

really of something that is very, very automatic or

a law that is not fashioned, as it were, to what

the real circumstances are.

A boy steals his father car to go to the

movies or something or other; having a drive

around with his friends; he is in breach of the

Criminal Code; repents of it: say, at the cinema

at half-time, or at the drive-in or wherever he is,

and rings his father and gets permission and the

father says, ttWell, that's all right. Don't ever

do it again. Be careful you don't injure the car
on the way back.tt So, now he has the permission

which he did not have before and if he had the

accident on the way to the cinema with his friend

and the friend is injured; the friend cannot

recover. If he had it on the way back, he can.

There seems, with respect, something unusual

in the law that the determination of the factor

whether compensation is payable for negligence so

automatically follows the criminal law. That does

Gala(3) 8/11/90

seem, with respect, to be odd and that is why, we

would submit, that these illegality factors, under

Smith v Jenkins, are something to be seen, not as an automatic denial of compensation through the

court refusing to erect a duty of care or being

unable to erect a duty of care, but rather

something to be seen in the whole light of it and

say, "Well, if in fact what happened was just an

ordinary driving - no problem - about the suburbs

and so forth, the illegality factor has got very

little to do with it"; as it probably would be in

the case of the boy that I gave. He is probably

not terribly apprehensive about the police; he

might be more afraid of getting into trouble with

his father. It is a different situation from some

of these other stealing cases but one looks at

those factors and says, "W~ll, is there something

particularly hazardous about it or is it an

ordinary type of thing in which there is no reason

to give the illegality aspect any real weight at

all". So, it depends on those circumstances, we

would submit.

BRENNAN J: Mr Hampson, if you embrace the notion of

impossibility to determine the standard of care

which is appropriate to be observed, are you

speaking there of anything other than the facts of

the case? If you are not speaking of anything
except the facts of the case then what has Smith v

Jenkins got to do with it?

MR HAMPSON:  Yes, I am only using the words the judges have

used in the cases when they talk about a refusal of

the court, or an inability of the court to erect a

standard of care. Now, they mean two different

things, we would see. The refusal is a clear case of public policy - an exercise of public policy to

say, "Well, we will not do it"; the inability is

one that has been suggested that it would not be

possible. Mr Justice Jacobs, for example, in

Jackson v Harrison, I think it is, spent some time

saying, "Well how could you", with the safe-

breakers as an example, "in fact, get a standard of

care out of: might the police be coming, what time

of night is it; how furtive have you got to be;

what this is a charge, all those sorts of things".

That, of course, however, was purely factual

and, with the greatest of respect, one would not

see that that would be beyond any court. That

would be a question of having appropriate evidence

before the court to do. It would not be impossible

because obviously there are cases in negligent

where far more sort of complex facts have to be

analysed for purpose of seeing whether there has

been negligence. So really, I am not advancing

that, Your Honour, as a consideration at all. It

Gala(3) 41 8/11/90

is a word that the judges have used that they would

be unable to erect a duty of care because of some

perceived difficulty in dealing with the facts.

DEANE J: But what about flight from the scene of the crime?

I mean there the court has to, as it were, say,

"Well now, what is the importance of escape from

the police?", and how do you modify the ordinary

duty to use circumspection and drive carefully by

reason of the common interest in escaping from the

police with the stolen property?

MR HAMPSON: Well, I would put it this way, that the way

that the court should deal with it really is to

in a task upon assessing the nature of the duty

that arises and the possibility that this has, it

was inherent in that, then our submission is that

there is no relevant duty.

Gala(3) 58 8/11/90

McHUGH J: But it may be, if you follow the approach in Cook

v Cook that the standard of the duty of care was

that that which would be expected of a driver who

had been drinking for six hours, who had finished

one of those stubby packs on the journey and he was

driving a car which had been stolen for the

purposes of going to Rockhampton.

MR KEANE: Late at night.

McHUGH J:  On that basis it may be that what happened was

well within the contemplation of what might be

expected.

MR KEANE:  And, Your Honour, we would then say, with

respect, that that amounts to identifying the

nature of the relationship or seeing that the
nature of the relationship is such as to give rise

to a duty of care so attenuated as to be no duty at

all.

McHUGH J: It is a duty of care that is owed, and it covers

deliberate acts, matters of that nature, but not

matters of the type that happened.

MR KEANE:  Matters that are inherently within the hazard of

the activity.

BRENNAN J:  Mr Keane, that seems to raise in my mind a

problem along these lines, that can you invite this the reasoning in Jackson v Harrison?

MR KEANE:  Your Honour, in our submission, we can. It is

our respectful submission a difficult thing to find
a necessary conflict of view between the two
decisions having regard to the absence of any
criticism of the decision in Smith v Jenkins in

Jackson v Harrison, except in the judgment of

Mr Justice Murphy. Those members of the majority

who upheld the plaintiff's claim in Jackson

v Harrison did so on the basis that none of them

criticized the decision in Smith v Jenkins.

BRENNAN J: Let me put it to you in another way. If one

were minded to embrace the proposition which I put

to you earlier in your argument as to the scope of
the principle for which you were contending, one

would point to Smith v Jenkins as some support for

the notion that there is no duty of care when the

act falls within the description which I put to you

and that would give effect to the illegal nature of

the conduct in which the allegedly negligent act or

omission arose.

If one looks at the question of the definition

of a standard of care in Jackson v Harrison, one

Gala(3) 59 8/11/90

might regard the consequences of illegality as some

of the factual ingredients which go to determine

whether or not there should be recovery in the

instant case but it would say nothing about whether

or not the illegality affects the existence of duty

and care.

MR KEANE:  In so far as that suggestion is advanced on the

basis of what Mr Justice Jacobs said in Jackson v

Harrison, we would simply draw Your Honours'

attention to what His Honour said in Bondarenko v

Sommers, His Honour having delivered the leading judgment in that case, (1969) SR (NSW) 269, and

there, in that case, at 275, about the middle of

the page, His Honour has there, in dealing with the illegality issue, set out the learned trial judge's address to the jury and has said:

The reason for the stress placed by the

learned trial judge upon the activities after

the stealing of the car is in relation to the
issue of criminality or illegality that he

wished to stress to the jury that the

immediate illegal purpose was still being

carried out at the time when the injury

occurred to the plaintiff.

Your Honours, it has been sought by our learned

friends to submit to Your Honours that

Mr Justice Jacobs' reasoning proceeds on the notion

that it is really akin to volenti notfit injuria

that the youths in Bondarenko v Sommers had agreed

to assume the risks of the car race. In our

respectful submission, it is quite clear that was

not the -significance which Mr Justice Jacobs saw in

those activities. The significance of those

activities that His Honour identified was the fact

that they were part and parcel of the immediate

illegal purpose which had prompted the stealing of

the vehicle. So that in our respectful submission

Bondarenko v Sommers is a case where illegality was

relevant itself rather than simply identifying the

possible consequences of illegality as diminishing the duty.

BRENNAN J: But if you look at what Mr Justice Mason, as the

Chief Justice then was, at page 455 in

Jackson v Harrison at the foot of the page:

If a joint participant in an illegal

enterprise is to be denied relief ..... the

denial of relief should be related not to the

illegal character of the activity but rather

to the character and incidents of the
enterprise and to the hazards which are

necessarily inherent in its execution.

Gala(3) 60 8/11/90

Now that, as I read it, schews the illegality.

MR KEANE:  Your Honour, I do note that. Earlier on in the

judgment of His Honour the Chief Justice,

His Honour has referred to Smith v Jenkins, has

rejected that wide view of it, which is not the

view we advance and it has not criticized the case,

but confines it to its facts. We might say, with

respect, the hazards of stealing a vehicle - the

hazard of taking a motor car - does involve the

possibility of an accident in that process. Now, I

know that does not answer Your Honour's question

that one has to put aside the illegality as a

factor in assessing the hazards, but, as we read
the judgment, we seek to read both passages being

mutually consistent and on that footing we submit

that it would seem that the criminal character of

the stealing and use in Smith v Jenkins is itself a

relevant circumstance and its relevance is

identified in going to the existence of the duty.

MASON CJ:	And if, of course, one is looking at a possible inconsistency between Jackson v Harrison and
Smith v Jenkins it is a mistake to concentrate on
one judgment, particularly one judgment that was
not concurred in by anyone else.
MR KEANE:	Yes, Your Honour, we adopt that observation, with

respect.

Your Honours, there is only one further matter

and it is, really, not of great moment. It is

simply that I think our learned friend mentioned

that the accident occurred at Childers, just north

of Childers. Just to avoid any confusion it, in

fact, occurred at Tannum Sands. That appears at

page 41 of the record, line 40.

BRENNAN J: That is a lot further on than Childers.

MR KEANE: It is somewhat further on.

BRENNAN J: That is near Gladstone, is it not?
MR KEANE:	Two hours in a fast car, Your Honour.

Your Honour, those our submissions.

MASON CJ:  Thank you, Mr Keane. The Court will consider its

decision in this matter and will adjourn until

9.45 am tomorrow morning.

AT 12.26 PM THE MATTER WAS ADJOURNED SINE DIE

Gala(3) 61 8/11/90