Gala & Ors v Preston

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.