Gala & Ors v Preston

[1990] HCATrans 144

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B32 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
DAWSON J
GAUDRON J

McHUGH J

Gala(2)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 26 JUNE 1990, AT 10.55 AM

Copyrizht in the High Court of Australia

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MR P.A. KEANE, QC:  May it please the Court, I appear with

my learned friend, MR D.V. McMEEKIN, for the appellants.

(instructed by Quinlan Miller & Treston)

MR C.E.K. HAMPSON, QC:  May it please the Court, I appear with

my learned friend, MR P.L. FEELY, for the respondent.

(instructed by Carswell & Co)

MASON CJ:	Yes, Mr Keane.
MR KEANE:	May it please the Court, I hand up an outline of the

submissions of the appellants.

MASON CJ:  Thank you. Yes.

MR KEANE:	Your Honours, this case was one of personal injury suffered during the course of a joy ride, that being the
plaintiff's own description, which Your Honours will see
a t  page 3 7 1 i n e 3 0 o f th e r e co r d . The per sons in v o 1 v e d
were jointly engaged in the taking and unlawful use
of the vooicle.  Your Honours, a useful summary of the
facts in this regard can be found in the judgment of Mr Justice Williams in the Full Court at page 61 of the record, lines 30 to 50, and at page 62,
lines 5 to 35, where His Honour finds that the learned
trial judge had concluded correctly, as a matter of
fact:

that the "journey north in which the

plaintiff and the first defendant were

engaged was a joint unlawful use of the

motor vehicle".

Your Honours, the Full Court took the view, contrary

to that of the learned trial judge, that the ordinary

duty of care applied between the participants to

the joint illegal use of the vehicle so that in

consequence the plaintiff succeeded in his claim for

damages for negligence, although Your Honours will

have seen that there was an apportionment for

contributory negligence by reason of the consumption

of alcohol by driver and passenger.

Your Honours, the reasoning of the Full Court

appears firstly in the judgment of Mr Justice McPherson,

which is to be found in the record at page 56, line 30

and following and in particular at lines 52 to 55

where His Honour concludes:

there is nothing in the evidence that

suggests that the joint illegal enterprise

of using the motor vehicle contrary to s.408A

that is of the Queensland CRIMINAL CODE -

increased the risk of injury like that

sustained by the plaintiff or by any of

the others involved.

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Your Honours, would it be convenient if we were

to hand Your Honours a copy of section 408A at this

time?

MASON CJ:	Thank you.
MR KEANE:	Your Honours will see that though the text is,

in some respects, a little different from that contained

in its Victorian analogue that was the subject of

consideration in SMITH V JENKINS, the point of the

legislation is the same. Your Honours, the leading

judgment in the Full Court was that of

Mr Justice Williams with whom Mr Justice Connolly

agreed. Can we take Your Honours to page 65 of

the record just under line 15 where His Honour turns

to the critical issue raised by the appeal.

His Honour observes that:

There seems to have been a progression

in the reasoning of the High Court from

SMITH V JENKINS through CRAFT -

that is PROGRESS & PROPERTIES V CRAFT, and JACKSO~

V HARRISON to COOK V COOK:

It appears that the clearest statement of

basic principle is to be found in COOK and

the three earlier cases can be seen then

as situations in which that principle

was applied to reach a specific result.

Mr Justice Williams then considers the authorities Jt

some length and arrives at a statement of basic

principle at page 73 where Your Honours will see th3t

he states, at the beginning of the page:

The basic principle is that laid down by

the High Court in COOK. Special or

exceptional circumstances affecting the

relationship between the driver and

passenger of a motor vehicle may take the

case out of the ordinary class of

relationship between such persons and

put such people in a relationship in

which either some other duty of care

(perhaps of a lower standard) is owed

or even into a situation where no duty

of care is owed at all.

Then he refers again to the facts of the earlier cases

and if Your Honours would go to the next page,

page 74 at the top, Your Honours will see that

His Honour speaks of:

The deliberate racing of a car recently

stolen for that purpose against another

constitutes special or exceptional

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circumstances affecting the hazards to
which the duty of care owed by driver to
passenger is directed.

If we can take Your Honours down then to just below line 35:

Whilst such a finding -

that is to say that the court cannot determine the

appropriate standard of care -

can more readily be made where, for

example, the recently stolen vehichle

is being driven dangerously in order to

avoid apprehension by pursuing police
officers, the same conclusion may be
reached where the facts, albeit occurring
some hours after the initial theft, result
in the Court being unable to determine

the appropriate standard given the

illegality. SMITH V JENKINS is therefore

a decision on the special and exceptional

facts as seen by the Court, and interpreted

in that way is not inconsistent with the

later decisions. But for present purposes

this Court must apply the principle as

established in CRAFT, JACKSON and COOK

to the facts of this case.

Going over the page Your Honours will see His Honour

summarizes the relevant facts:

The incident immediately causing the injury

to the appellant, and the acts alleged to
constitute the negligent driving by the

respondent Gala, occurred some hours after

the vehicle was stolen, and some hundreds

of kilometres north along the highway from

where it had been stolen. There is nothing

to suggest that at the material time the

youths in the car were attempting to avoid

capture by the police and had either

expressly or impliedly by conduct become
parties to an illegal venture which

necessitated the vehicle being driven

otherwise than in accordance with the

ordinary reasonable standard expected of an

experienced, skilled and careful driver.

It follows, in my respectful view

that the learned trial Judge erred in

concluding that he could not determine

an appropriate duty of care.

Your Honours, it is our submission that the points

of distinction which the Full Court sought to draw

between the facts that are materjal to the decision

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in SMITH V JENKINS are not valid points of distinction

and that tne present case is indistinguishable from

SMITH V JENKINS and we submit that the Full Court were

in error in forming the view that later decisions

of this Court compelled a different conclusion.

Your Honours, if we may go then to SMITH V

JENKINS, (1969-1970) 119 CLR 397. If we can take

Your Honours first of all to page 402, about

point 8, where in the judgment of Mr Justice Kitto

His Honour observes that:

The likelihood of the respondent's being injured by carelessness in the driving

was the same as it would have been if the

parties had been using the car lawfully.

Your Honours, that view of the facts is elaborated

somewhat in the judgment of Mr Justice Windeyer.

At page 405 point 5 Mr Justice Windeyer deals with

the circumstances of SMITH V JENKINS in a little

more detail. At about point 5 he said:

They drove away from Ballarat along the

Ross Creek road. Where they were making

for does not appear from the material

before us. The plaintiff was driving when

they started. After they had gone about

four miles Windmill took a turn for a

short time. Then the defendant took the

whee 1 and drove on at about eighty or n in e t y

miles an hour. When approaching the Glenel2

Highway near Smythesdale, the plaintiff

is said to have warned the defendant to

slow down. He did not do so. The car ran

off the road and hit a tree.

At page 406 at about point 8 Your Honours will see

that matters originally relied on for the defendent

in relieving him of liability included the contention:

that they were at the time of the accident

"fleeing from the scene of the said

felony".

Your Honours will see that that contention was

abandoned, and that it was abandoned is recorded at
page 407 at about point 3:

The evidence that the plaintiff and the defendant and their companions were fleeing

from the scene of a crime was abandoned by

the defence at the trial. However, the

evidence established without any doubt that they were engaged in a crime when the accident occurred.

The text of the section is there set out. So that,

Your Honours, in that case, as in this, the use of

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the motor vehicle which was found to have been negligent

was itself illegal, the use of the vehicle was joint,

and the act done negligently was, in each case, the

criminal act in which both plaintiff and defendant

were engaged.

If we can just take you briefly - because as has been mentioned in the later decision in JACKSON V

HARRISON in the judgment of Your Honour

the Chief Justice, there was some diversity of

reasoning in SMITH V JENKINS - can we take Your Honours

very briefly and without reading the passages to what

seemed to be the critical points in the reasoning

of each of Their Honours. Firstly, if we may take

Your Honours to page 399 point 8 in the judgment

of the then Chief Justice, to the end of that page

where His Honour identifies an illegal use, as much

a use by the respondent as by the appellant, that

use being their joint enterprise, and at page 400

commencing about point 4 where having considered the

possibility that refusal of relief might be based

either upon a refusal of the law to erect a duty o;

care or upon a more general ground of public pol[c~

the then Chief Justice preferred the former vie':l ,~

the proper basis, and at point 7 His Honour sat

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 drive~.

Thus, we would say, to paraphrase the language c; · --2

Court in COOK V COOK, to say that the relationsh : between the parties in the present case was on-2 ·
driver and passenger is to only state half the t~ _,h_

Mr Justice Kitto, in his judgment at page 404 P'': ~r 5,

cites, and accepts as a statement of true princ::·

o f th e co mm on 1 aw , th e pa s s age the r e s e t o u t i n t ~- ·.:

judgment of Mr Justice Jacobs in BONDARENKO V s, ':>:::2-s.

In the judgment of Mr Justice Windeyer may we t.i~

Your Honours to page 416, the last paragraph on r_h ,(

page where His Honour refers to HENWOOD's case 1~:

goes on to say:

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.

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Further in the judgment of Mr Justice Windeyer at

page 422 commencing at the top of the page in the

first full sentence:

Here the harm done was not remote from

the carrying out of the illegal

enterprise. It resulted from the

careless manner in which the defendant

carried out his part in it.

There is a citation from the judgment of Lord Lyndhurst in COLBURN V PATMORE, and then Mr Justice Windeyer

went on:

That doctrine, given more particularity

for the present case, can I think be
formulated as a rule as follows: If two
or more persons participate in the
commission of a crime, each takes the risk
of the negligence of the other or others

in the actual performance of the criminal

act. That formulation can be regarded as

founded on the negation of duty, or on

some extension of the rule volenti non fit

injuria, or simply on the refusal of the

courts to aid wrongdoers.

In the judgment of Mr Justice Owen at page 425 point 5

His Honour refuses to find a duty of care in those circumstances, and we invite Your Honours to read

from page 425 point 5 to the end of Mr Justice Owen's

judgment and then, Your Honours, the fifth member

of the Court, Mr Justice Walsh, at page 432 point 5:

I have come to the conclusion that upon

the facts found by the learned trial Judge

the respondent had no right of action in

negligence against the appellant. I think

that the rule to which I have referred applies to those facts to produce that

result. The relationship of the parties

and the act of which the respondent

complains were such that no right of

action based upon the manner in which that

act was performed could arise.

Again, Your Honours, at page 433 where at point 4

reference is made again to the decision of the New

South Wales Court of Appeal in BONDARENKO V SOMMERS,

to the same passage as was cited by Mr Justice Kitto,

and then just below point 5 Mr Justice Walsh went on

to say that he preferred to say that:

the criminal relationship is the starting

point in the inquiry whether the criminal

act, in respect of which the relationship

exists, can be the basis of any right of

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action in negligence, rather than to

regard the question as being whether the crime is a bar to recovery. But I agree

with his Honour's statement that

" the existence of the joint criminal

enterprise in respect of the very act
of which the plaintiff complains as
having been done negligently seems to me
to lie at the foundation of the present

defence".

In my opinion, no right of action in negligence

is given by the law in respect of the carrying

out by one of the participants in a joint

criminal enterprise of the particular

criminal act in the commission of which

they are engaged.

Your Honours, we think it appropriate to draw
Your Honours' attention as well, in the judgment

of Mr Justice Walsh, to page 434 in the paragraph

which begins at about point 4 after the citation from

GODBOLT V FITTOCK, where he says that:

I think that a distinction of that kind is

not invalidated merely because no precise

formula is available for its application

to all cases. In some cases of statutory

offences, the statute will give a positive

indication of the conclusion which should

be reached. When there is no such

indication the solution appropriate to

different situations may be worked out

by the familiar methods of application,
adjustment and development of legal

principle to meet the case in hand.

Your Honours, the subsequent decisions of this Court

to which Mr Justice Williams referred in the passages
to which we have drawn Your Honours' attention in

PROGRESS & PROPERTIES V CRAFT and JACKSON V HARRISON

assume, in our respectful submission, the correctness

of the decision in SMITH V JENKINS in its particular

context, although it may be said that they demonstrate

a disposition to confine it to the particular case

of injury suffered in the course of unlawful use of

a vehicle in contravention of section 81 of the

Victorian Act, as it was there, or section 408A of

the Queensland CRIMINAL CODE.

BRENNAN J:  How far does this go, Mr Keane? Say, for example,

their escapade of the night had been completed; they
had sobered up completely the next day; they had
reached - where were they making for, Gladstone -

they had reached Tannum Sands, they decided to go

for a swim; coming back from the swim one of them

drove negligently.

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MR KEANE:  Your Honour, in point of fact only the plaintiff

was going toGladstone. On the plaintiff's evidence

the other occupants of the vehicle were going to

Rockhampton to do some more break and enters, but

to answer Your Honour's question, the point

Your Honour raises is, of course, the point that

is mentioned in the judgment of Mr Justice Jacobs

in JACKSON V HARRISON, that there must come a time

when the circumstances of the taking are so divorced
from the situation applying at the time of the

accident that the same result might not follow.

Your Honour, we can accept that that might be

so. The point we wish to make is that the distinction

which the Full Court sought to draw, that is to say

that they were some hundreds of kilometres and some

hours from the point of the original taking is not
the point at which one would draw the line because
they are still engaged in the very illegal enterprise

of which they complain, and that is to say the injury

by careless driving in the course of the joy ride

from Bundaberg to Gladstone and then to Rockhampton

which they purposed.

Your Honour, that is the point we wish to make,

with respect, in relation to the attempt to distinguish
the present case from SMITH V JENKINS. It just does
not seem, with respect, to be a satisfactory point
of distinction to make it a matter of kilometres and
hours when, in this case, one is able to identify
the journey which they purposed and identify the fact
that they were still engaged in it at the time.
Your Honours, the only clear expression in the
subsequent decisions of this Court of disapproval of

SMITH V JENKINS is contained in the judgment of

Mr Justice Murphy in JACKSON V HARRISON. We can draw

Your Honours' attention to that. It is contained

in (1977-1978) 138 CLR 438 and the relevant passage

in the judgment of His Honour appears at page 462

at the bottom and over to page 463.	His Honour
expressed the view that:

in the circumstances of SMITH V JENKINS,

there was no difficulty about the

requisite standard of care and the

duty of care.

Your Honours, that view is, in our submission, contrary

to that of Mr Justice Jacobs with whom, in this case,

Mr Justice Aickin agreed, that view being expressed

at page 457 to page 458, commencing with the citation

from Mr Justice Jacobs' judgment in PROGRESS &

PROPERTIES V CRAFT.	Mr Justice Jacobs concluded
at page 460 at point 5:

It appears to me that these facts lie

at the basis of the conclusion that there

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was a relevant joint criminal enterprise.

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

even though of a most serious kind from

the beginning to the end. How could a

standard of care be determined for such a

course of criminal activity? I doubt that

the decision would have been the same if the accident had occurred days, weeks or

months later when the circumstances of the

taking of the vehicle had ceased to have any

significant relationship to the manner in

which the vehicle was being used.

Your Honour, that is apropos of the point Your Honour

Justice Brennan raised with me a moment' ago. In that

case, in JACKSON V HARRISON, there was an expression

by Your Honour the Chief Justice of a view that SMITH

V JENKINS should not be seen as being authority for the general proposition that participants in a joint

illegal enterprise owe each other no duty of care.
Your Honour said that at page 453 point 9.

Your Honour went on on page 454 to consider the

various reasons assigned by Their Honours in SMITH they did arrive and then at the bottom of the page in the last paragraph of text Your Honour said:

I mention this only for the purpose of

demonstrating that SMITH V JENKINS is not

a decision which on its facts can be

decisive of this case and that in view
of the diversity of reasoning expressed in

the judgments there was no reason why the

Court should have been constrained to adopt

a particular view in PROGRESS & PROPERTIES

V CRAFT.

Your Honour went on to consider the difficulties that

arise in applying the general principle which

Your Honour has earlier said SMITH V JENKINS does

not sustain and then at point 7 Your Honour said:

But it is not merely a matter of stating

that a suitable criterion cannot be

postulated. What is more important is that the existence of the duty of care is primarily based on the concept of

foreseeability. To deny the existence

of the duty in every case in which the

parties are engaged in a joint illegal
enterprise is to discard foreseeability

as a criterion. The appellant's

argument would have greater force if it

attempted to assert that the unlawful conduct of the parties, whether it be

serious or slight, is relevant to the
existence of the duty to the extent to

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which it goes to foreseeability.

But the argument travels more widely

than that.

Your Honour concluded your consideration of the question at page 456 in the second-last paragraph of Your Honour's

judgment:

It is for these reasons that I consider

the law to have been correctly stated by

Mr Justice Jacobs in PROGRESS & PROPERTIES

V CRAFT. A plaintiff will fail when the

joint illegal enterprise in which he and

the defendant are engaged is such that the

court cannot determine the particular

standard of care to be observed. It matters
not whether this in itself provides a
complete answer to the plaintiff's claim
or whether it leads in theory to the
conclusion that the defendant owes no

duty of care to the plaintiff because no

standard of care can be determined in the

particular case.

Your Honour, with respect, in our respectful submission,

the appellants' submissions in this case do not deny

foreseeability as a general test for the existence

of a duty of care. We submit though, and we submit

hopefully harmoniously with the approach indicated

in COOK V COOK, that the care the passenger can expect

corresponds with the relationship he establishes and,

Your Honours, if we can take you shortly to the

passages in COOK V COOK that establish, in our

submission, support for that proposition - - -

MASON CJ:	Just before you do that, can I take you back to the passage in Justice Jacobs' judgment to which you
earlier directed our attention in JACKSON V HARRISON,
at page 460.

(Continued on page 12)

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MASON CJ (continuing):  His Honour seems to concede there

that even though the car is still being illegally

used at some considerable time in the future,

none the less, it may be possible in those

circumstances to contemplate the existence of a

duty of care. Now, on your submission, why should

that be so when the car is still in the course of

use in the execution of the joint illegal

enterprise which, of course, relates just as much

to use as it does to the original taking?

MR KEANE:  Yes, Your Honour. Your Honour, it may be that

if one is forced to confine it, one can do so by

identifying the original purpose and that that

purpose is still on foot, the purpose that informed

the original taking and the immediate use. Thus,

for example, if several days later they had

remained in possession of the car and they had gone

their separate ways and one morning were driving to

work, one might then say that the existence of the

relationship between the taking and the circumstances

of the accident no longer bears a sufficiently

significant relationship to lead the Court to the

view that it should refuse to erect a duty of care
because in those circumstances the jaunt or
escapade, the joy-ride might be said to have come

to an end.

MASON CJ:	Notwithstanding that there is still illegal use?
MR KEANE:	Yes.
BRENNAN J:	Do you distinguish between continuing offences

and offences which are not continuing offences?

MR KEANE:	Your Honour, in our submission, the principal position is, as a matter of principle, that where one
can identify an illegal us~ a continuing offence,
one ought to refuse relief to participants in that
joint use just as one might refuse relief to
participants in an activity where the offence is
committed in a particular instant such as a break
and enter.  So that, Your Honour, to answer
Your Honour's question, no, we would not.

We were going to take Your Honours briefly to

some short passages in COOK V COOK which recognize,

in our submission, that a relationship or that the

circumstances of a relationship may be so

affected by particular features of it, one of which,

we would submit, is the engagement in an illegal

enterprise that the ordinary duty is excluded.

Your Honours, COOK V COOK is reported in

(1986) 162 CLR 376. Your Honours will recall that

is the case of the learner driver and the experienced

driver and Your Honours were called upon to·

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resolve the question of the extent of the duty

owed by the learner driver in such a case.	The
passages which we would wish to draw

Your Honours' attention to commence in the joint

judgment at page 383 at about point 4 half-way

through the sentence:

special and exceptional facts may so

transform the relationship between

driver and passenger that it would be

unreal to regard the relevant

relationship as being simply the ordinary

one of driver and passenger and

unreasonable to measure the standard of

skill and care required of the driver by

reference to the skill and care that are

reasonably to be expected of an
experienced and competent driver of that

kind of vehicle.

Similarly, on the next page, page 384 in the last

paragraph where the observation is made that:

It also accords with the clear trend of

authority in this country to the effect

that special and exceptional circumstances can transform the ordinary relationship of driver and passenger into a special one

with the result that the hypothetical

reasonable person of the law of negligence

can no longer be credited with the degree

of skill and experience that would

otherwise be attributed to him or her.

Then, there is a citation from JOYCE's case in

the judgment of Sir Owen Dixon and at the top of

page 385 His Honour spoke of:

the principle applied to the case of the

drunken driver's passenger is that the

care he may expect corresponds with the

relation he establishes.

We draw Your Honours' attention, again without

reading it on this occasion, to page 386 in the

passage at point 5 to point 6 where Their Honours

spoke of:

the recognition that exceptional

circumstances could take the relationship

of proximity between a driver and a

passenger into a special category -

and, similarly, at page 387, the first 10 lines

after the citation.

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Your Honours, in our submission 1 special

circumstances may alter the ordinary relationship

of driver and passenger so that it would be

plainly unreasonable for the standard of the duty

of care owed by a driver and a passenger in an

ordinary case to be applied. As Mr Justice Windeyer

observed in SMITH V JENKINS at page 418, the

special relationship can exclude the duty of care.

In our submission, in the case of the special

relationship between parties engaged in the joint

theft - and we would submit as well, the joint

use of the motor vehicle - a duty of care in

relation to the manner of use is excluded either
because the Court refuses to recognize or to
enforce a duty and we submit that it is the use,

the driving itself, which is the crime and the

activity which carries the risk of injury in the

course of the joy-ride.

BRENNAN J: 

But really, that is simply saying that there

are special circumstances in which the orindary
duty of care would not apply without saying, "What
are the criteria by reference to which the
existence of special circumstances can be

determined?".

MR KEANE: 

No, for that, Your Honour, we have to go back to the statements of principle in SMITH V JENKINS

and we alight upon the identification for

present purposes of a special relationship created
by the engagement in the enterprise of the taking

a~dthe use of the vehicle for the purposes of this

joy-ride. It is our submission, that as all of

Their Honours were clear in those circumstances,
the Court will not lend its aid to the party injured.
The majority of Their Honours, in our submission,

founded themselves on the footing that the Court

will not erect a duty of care. In our submission,
that was the view of the Chief Justice,

of Mr Justice Windeyer and Mr Justice Owen.

Mr Justice Walsh seems to have put it more explicitly

on the footing of public policy.  Mr Justice Kitto,

more narrowly, perhaps, in a technical sense, on the

view that the joint illegal activity or the

unseverability of the joint illegal activity denied

a remedy under the civil law. But, Your Honour, in

our respectful submission, those are features that

one can identify SMITH V JENKINS and in this case.

We do not pretend to seek to lay down, as

Mr Justice Walsh recognized might be an invidious

task, a statement for all times and all places and

we apprehend that that would not be in accordance
with the technique of the common law.

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Your Honours, may we submit finally, that in any

event, and questions of the principled

development of the common law apart, regarding

SMITH V JENKINS simply as an authority and an

authoritative statement of the position in

respect of facts indistinguishable from it, might

we venture to submit to Your Honours that that

case should not be overturned otherwise than by

legislative action. Having stood for 20 years to

the apparent satisfaction of the community,

perhaps because it serves a policy that commends

itself to the community and the legislatures of

the community, even it be said that as a matter of

principle it is perhaps anomalous, but that is a

submission we make very much in the alternative

and very much on the assumption that our learned

friends invite Your Honours to reconsider the

correctness of SMITH V JENKINS.	Those are our
submission, Your Honours.

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

MR HAMPSON:  May I hand up copies of the synopsis of our

arguments?

MASON CJ:	Mr Hampson, there is one matter we had better raise with you at the outset and that is this: ,,,Jna t
are you going to ask us to do or say about
SMITH V JENKINS?
MR HAMPSON:	Well, we are going to say that it can be

distinguished, Your Honour, because, we would say,

it does not really have a ratio decidendi - that

has been pointed out by - or the reasons why no
duty of care was elevated there by the Court does

not have any universal ratio.

MASON CJ:  But, the point of my question is, and I gather

your answer to it is, that you are not going to

ask the Court to reconsider the decision in that

case?

MR HAMPSON:  Yes, I would have to do that if you are against

me on what I say is the capacity to distinguish it.

MASON CJ:  Well, if that is the position and that is your

fall-back submission, then I see an insuperable

difficulty to this Court entertaining that

submission. There are only five of us.	I should
have thought that if you were to ask us to

reconsider SMITH V JENKINS we should constitute the

entire Court to hear that question.

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MR HAMPSON:  Yes, I appreciate the difficulty, Your Honour.

I mean, really, I think it is, with respect, the

necessary fall-back position.

MASON CJ:  I am not disputing that. I would not seek to

dissuade you from taking that position.

MR HAMPSON:  We are confident that the Court should be

able to distinguish it but in the final analysis it,

we would be submitting, is an unsatisfactory

decision and it does not really accord with the

other, how should I say, principles, concomitant

principles.

McHUGH J:	You would have to overrule more than that would you not? You would have to overrule
GODBOLT V FITTOCK in the New South Wales Court
of Appeal; you would have to overrule BOEYEN V KYD"C?
would you not, in the Victorian Supreme Court?
MR HAMPSON:	No, well this Court would not be overruling

that.

McHUGH J:  I know, but those decisions could not stand, co:_ild

they?

XR HAMPSON:  No, it would be only necessary to overrule :ha•·

particular decision and the others obviously wo:_il~

not stand, that is so.

McHUGH J:  And BONDA.RENKO V SOMMERS would have to be wron.c: L ·:

decided.

MR HAMPSON:  No, well, you see, one gets in those cases

very close to a hazardous situation which, perha::-c:i.

it is akin to a volenti non fit injuria type of

defence, Your Honour, but the aspect of the

illegality that they are concerned with in

SOMMERS's case and in JENKINS's case really, the car and the use that was made by agreement of

it was necessarily committing further illegal ac:s

of driving very fast and, in one case, racir and

so forth and it is that hazardous aspect of the

matter that we would say fits comfortably with the

other aspects of foreseeability and the like in the

law of negligence. But really to take a situation

where you have none of those hazardous acts, we

would submit that it would be incorrect to say that

we will not elevate a duty of care.

The car case is probably a little unusual because so far as the user is concerned, as has

been pointed out here and has been mentioned in other

judgments, it is a continuing matter and while the

people are in possession of a car, even if it be

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two or three years after the event, the logic,

as it were, of failing to erect a duty of care just

because of the continuing use must also continue.

There is no logic in finding a cut off point about it.

So, really, we see it as a matter that it can be

distinguished - SMITH V JENKINS - but if it is not,

we would say, it is an unsatisfactory case and

just because there are other cases of other courts

which are in favour of it does not mean that that

is any reason why it should not be overruled.

I mean, it very frequently happens that a case is

overruled although there were in the common law

many hundreds of cases that went before it

consistent with it gradually building up to that

particular decision.

McHUGH J:  Yes, but all those cases culminating in

SMITH V JENKINS followed a particular line and I

know people seek to explain those cases later

on different grounds but the accepted doctrine

was in the profession that if there was a joint
illegal taking of a motor vehicle, no duty of

care was owed.

MR HAMPSON:	Yes, well we would submit that - - -
McHUGH J:	I appeared for Mr Bondarenko and he got a new

trial and as far as I know it has never taken nlace

on the authority of the judgment below., Maybe ·he

can succeed·••• .back for a new trial.

MR HAMPSON:  It might be met with a difficulty in not having

pursued the courts, might have been struck out by

this time for not prosecuting it, Your Honour, I

do not know. All I can say is, with respect, one

does not shrink from the fact that there are

other cases which were consistent with SMITH V JENKINS

as a reason why it could not be submitted that

SMITH V JENKINS should be overruled if it, in fact,

got to that stage. But, what we would be

submitting is that SMITH V JENKINS has been too

widely interpreted by the profession; it is not	really authority for the fact that if two people
take a car then there will not be a duty of care any
more than some people in the profession thought it
had been an application of an ex turpi causa non
oritur actio situation. Now, again, I mean, that
was debunked by the case itself in
Mr Justice Windeyer's judgment so really what has
been considered by the profession as being the
situation is really no reason why -if it has been
incorrectly laid down - the Court should not overrule on it.

MASON CJ:  Your attitude having been made clear,

Mr Hampson, it seems to me that the Court should

consider whether it should continue with this

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hearing or whether the matter should stand

adjourned to future date in Canberra where all

the members of the Court can participate in the

hearing. Have you any submission to make on the

possibility of the Court pursuing that course?

MR HAMPSON:	No, Your Honour, I have no submission.
MASON CJ:	It seems to me unsatisfactory that we should

hear your argument directed to establishing a

dinstinction between this case and SMITH V JENKINS

and then consider it on that footing being unsure

at that stage as to whether or not your argument

would succeed and facing the possibility that we

might have to come back again and rehearse the
arguments in order to consider your final

argument.

MR HAMPSON:	I appreciate the problem but I do not think there is any submission I can make about it because,
with the greatest of respect, it does seem really
inevitable on analysing it because the Court
obviously in advance cannot say that there is going to be a successful distinguishing of it, even having
read Mr Justice Williams's judgment in the Full Court.

MASON CJ:  Yes. Now, Mr Keane, what do you have to say on

the course that the Court should take?

MR KEANE:  We do not wish to make any submission contrary to

that which has been suggested.

MASON CJ:  Yes, well the Court will take a brief adjournment

now and we will consider what course we will take

in the matter.

AT 11.45 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.47 At.~:
MASON CJ:	In view of Mr Hampson's proposed challenge to the

correctness of SMITH V JENKINS, the Court feels

that it has no alternative but to adjourn the matter
to a date to be fixed for hearing in Canberra so

that the entire Court can participate in the

determination of the matter. The matter will,

therefore, stand adjourned to a date to be fixed in

Canberra.

AT 11.48 AM THE MATTER WAS ADJOURNED

TO A DATE TO BE FIXED

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