Gala & Ors v Preston - [1990] HCATrans 269

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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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 NOVEMBER 1990, AT 3.38 PM

Gala(3)

7/11/90

MR P.A. KEANE, QC:

May it please the Court, I appear with

my learned friend, MR D.V.C. McMEEKIN, for the
appellants. (instructed by Quinlan, Miller
and Treston)

MR C.E.K. HAMPSON, OC:

May it please the Court, I appear

with my learned friend, MR P.L. FEELY, for the
respondent. (instructed by Carswell and Company)

MASON CJ:

Yes, Mr Keane.

MR KEANE:

May it please the Court.

I hand up again, in

the case of most of Your Honours, outlines of our
submissions.

MASON CJ:

They remain the same, do they?

MR KEANE:

They are the same, Your Honour, yes.

May we

also at this time hand up again copies of
section 408A of the Queensland Criminal Code, that
being the Queensland analogue of the Victorian
section relevant in Smith v Jenkins.

MASON CJ:	Thank you.	Yes.
R KEANE:	Thank you, Your Honour.	Your Honour, this case is

one of personal injury suffered by a passenger in a
motor vehicle in the course of the unlawful use of
that vehicle, the vehicle having been taken for the
purpose of a joy-ride by, amongst others, the

driver and the passenger. The expression
"joy-Nide" is the plaintiff's own expression, as
appears from the record at page 37, about half-way
down the page, and the general description that I
have given to the sequence of events is summarized
in the judgment of Mr Justice Williams, with whom
Mr Justice Connolly agreed, in the Full Court at
page 62 of the record, lines 1 to 30.

Your Honours, the Full Court, contrary to the
learned trial judge and notwithstanding the
decision of this Court in Smith v Jenkins, took the
view that the ordinary duty of care between driver
and passenger applied so that the driver was liable
in negligence for the plaintiff's injuries.
In our submission, the present case is

indistinguishable from Smith v Jenkins and we
propose to take Your Honours, in a moment, to the report of the case in Smith v Jenkins. Before we
do that, might we say that both cases, in our
respectful submission, involve the negligent
driving of a motor vehicle by one of the
participants in the unlawful use of the vehicle for
the purpose of a joy-ride which resulted in injury

Gala(3)

7/11/90

to another participant in the crime. The very act
of which the plaintiff complains was the criminal
act in which both plaintiff and defendant were
engaged.
In neither case, Your Honours, in our

respectful submission, was there any element of
increase…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gala & Ors v Preston

Details

AGLC: Gala & Ors v Preston [1990] HCATrans 269
Case: [1990] HCATrans 269
Decision Date

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia concerning personal injury sustained by a passenger in a motor vehicle. The passenger, the respondent, was injured while participating in the unlawful use of a vehicle for a "joy-ride" alongside the driver, one of the appellants. The core dispute revolved around whether the ordinary duty of care between a driver and passenger applied in such circumstances, leading to liability for negligence.

The High Court was required to determine whether the decision of the Full Court of Queensland, which found the driver liable in negligence, was correct, particularly in light of the High Court's previous decision in *Smith v Jenkins*. The central legal issue was whether the plaintiff's participation in the criminal act of unlawfully taking and using the vehicle precluded them from recovering damages for injuries caused by the negligent driving of another participant in that crime.

The appellants argued that the present case was indistinguishable from *Smith v Jenkins*. They contended that in both cases, the injury arose from the negligent driving of a motor vehicle during a joint criminal enterprise (a joy-ride), and that there was no increased risk of harm derived from the criminal nature of the activity itself. The appellants submitted that the plaintiff's own criminal conduct was the very act of which they complained, and therefore, the ordinary duty of care should not apply. The Full Court of Queensland had departed from the trial judge's decision by holding that the ordinary duty of care did apply, despite the unlawful use of the vehicle.

Orders