•
.
~
•
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 SUNCORPINSURANCE 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 | 1 | 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 | ||||||||||
| ||||||||||
| were jointly engaged in the taking and unlawful use | ||||||||||
| ||||||||||
| 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 | 2 | 26/6/90 |
Gala(2)
Your Honours, would it be convenient if we were
to hand Your…
Continue reading Gala & Ors v Preston
Sign in free to access the full text
- AGLC
- Gala & Ors v Preston [1990] HCATrans 144
- Case
- [1990] HCATrans 144
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.