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

BlT 3/ 1 /HS

26/6/90

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.

B 1T3/

2/HS

26/6/90

Gala(2)

Your Honours, would it be convenient if we were

to hand Your…

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 144
Case: [1990] HCATrans 144
Decision Date

CaseChat Overview and Summary

This case, Gala & Ors v Preston, was heard in the High Court of Australia. The dispute concerned a claim for personal injury suffered by the plaintiff, Frank Raymond Preston, during a "joy ride" which involved the unlawful use of a vehicle. The appellants were the parties involved in the unlawful use of the vehicle, including the driver and an insurer.

The central legal issue before the High Court was whether the ordinary duty of care applied between participants engaged in the joint unlawful use of a motor vehicle, and consequently, whether the plaintiff could succeed in a claim for damages for negligence. This question arose after the Full Court had overturned the trial judge's decision, finding that the duty of care did indeed apply.

The High Court considered the reasoning of the Full Court, which had concluded that the joint illegal enterprise of using the motor vehicle did not inherently increase the risk of injury in a way that would negate the ordinary duty of care. The Full Court's decision was informed by a progression of High Court authorities, including *Smith v Jenkins*, *Progress & Properties v Craft*, *Jackson v Harrison*, and *Cook v Cook*. The High Court noted that the principle articulated in *Cook v Cook* provided the clearest statement of the basic principle, suggesting that special or exceptional circumstances might be required to remove a case from the ordinary relationship between a driver and passenger.

The provided text does not detail the final orders or outcome of the High Court's decision.

Orders