Gala & Ors v Preston

[1989] HCATrans 292

~ ~

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

Applicants

and

FRANK RAYMOND PRESTON

Respondent

Application for special
leave to appeal

BRENNAN J GAUDRON J McHUGH J

Gala

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 17 NOVEMBER 1989, AT 11.00 AM

Copyright 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, of counsel

for the applicants. (instructed by

V.A.J. Byrne & Co)

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

with my learn~d friend, MR P.L. FEELY, for the

respondent. (instructed by Carswell & Company)

BRENNAN J:	Yes, Mr Keane.
MR KEANE:	Your Honours, this case was one of personal injury suffered by the respondent during the course of a
joy-ride, the persons involved being jointly engaged,
as both courts below found, in the taking and
unlawful use of the vehicle.  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.  The Full Court decided that the driver
of the vehicle owed the ordinary duty of care of a driver to his passenger, the plaintiff - the
respondent here - because the nature of their joint illegal enterprise was not such as to increase the risk of
injury which arose from the use of the vehicle. the reasons of the Full Court in the judgment of
Mr Justice McPherson at page 17 of the application
book and in the judgment of Mr Justice Williams with whom Mr Justice Connolly agreed at page 35.

The case, in our submission, is indistinguishable

from the decision of this Court in SMITH V JENKINS,

(1970) 119 CLR 397.	In that case the plaintiff
failed.	In that case, as in this, the use of the

motor vehicle which was found to have been

negligent was itself illegal. The use was joint

and the act done negligently was in each case

itself the criminal act in which both plaintiff

and defendant were engaged. The common illegal

purpose was being affected by the very acts in

respect of which the plaintiff asserts that he was

owed a duty of care by the driver.

Might we say that there was no suggestion in

SMITH V JENKINS that the participants in the joint unlawfui use had agreed to drive the vehicle at an

excessive speed. Indeed, the contrary appears to

be the case if one looks at the account of the facts

recited by Mr Justice Windeyer at page 405 point 5

where Your Honours will see that immediately before

the accident occurred the plaintiff warned the

defendant to slow down and the defendant did not

do so. There is no suggestion in SMITH V JENKINS

that the manner of driving and the consequent risk

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of flight from apprehension and that that is so	of injury was affected in any way by the exigencies
appears explicitly in the judgment of
Mr Justice Windeyer at page 407 at about point 3
where Your Honours will see His Honour mentioned
that:

(Continued on page 4)

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MR KEANE (continuing):

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.

In that case, as in this, both plaintiff and defendant

had at one time or other been engaged in driving the

vehicle in question. Your Honours, it is our submission,

then, firstly that the case is indistinguishable

in any material respect from SMITH V JENKINS.

Your Honours, there is no suggestion in any of the

subsequent authorities to which reference was made

in the Full Court, that SMITH V JENKINS was wrongly

decided.

· BRENNAN J:  I do not think we need trouble you further at

this stage, Mr Keane. Mr Hampson.

MR HAMPSON:  Yes, if it please the Court. In our submission,

the Full Court correctly found the solution to the

distinctions which are to be made between

SMITH V JENKINS on the one hand, and

JACKSON V HARRISON on the other hand. In

JACKSON V HARRISON, 138 CLR 438, at 453 Mr Justice Mason

said - right at the foot of page 453:

It is quite incorrect to assert that

SMITH V JENKINS decided that the

participants in a joint illegal enterprise

owe no duty of care to each other.	it
decided no such thing.	The case was
limited to its particular facts.	They

involved the illegal use of a motor

vehicle contrary to section 81(2)

of the CRIMES ACT 1958 (Viet.). The

members of the Court assigned a variety

of reasons for arriving at this result,

no particular reason commanding universal

or even majority acceptance.

And then His Honour went on to analyse the

different approach of the Justices in that case

and he continued, at page 455:

To the extent to which the judgments in

SMITH V JENKINS express support for the

rule that in a joint illegal enterprise no

duty of care is owed to each other by the participants, the judgments do not decide

whether any distinction is to be drawn

between degrees of illegality so as to

exclude from the operation of the proposed

rule cases of minor or lesser illegality.

If such a rule were to have a universal

operation its application woul~ in some

instances at least, be Draconian, as I

have said.

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He goes on to consider what the situation was

in some other places.

But it is not merely a matter of stating that a suitable criterion cannot be postulated.

What~i.-s 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 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 which

it goes to foreseeability. But the argument

travels more widely than that.

(Continued on page 6)

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MR HAMPSON (continuing):  He goes on then, at the bottom

of the page, the last sentence:

A more secure foundation for denying relief,

though more limited in its application -

and for that reason fairer in its operation -

is to say that the plaintiff must fail when

the character of the enterprise in which the

parties are engaged is such that it is

impossible for the court to determine the

standard of care which is appropriate to be

observed. The detonation of an explosive

device is a case of this kind.

That was harking back to a suggestion made in

England about an action being brought by one burglar

against the other, I suppose, in trying to detonate

an explosion to open a safe.

Mr Justice Jacobs, his decision commences

at the same page, and at 457 he referred to another

case, PROGRESS & PROPERTIES, and he sets out what

he said in that particular case. He said:

I adhere to that statement. I think

that it is correct to base the defence upon

a denial of a duty of care in the particular
circumstances rather than upon a denial of

remedy for a breach of the duty of care.

A legal duty of care presupposes that a tribunal
of fact can properly establish a standard

of care in order to determine whether there

has been a breach of the duty of care. If
the courts decline to permit the establishment

of an appropriate standard of care then it

cannot be said that there is a duty of care.

Before the courts will say that the

appropriate standard of care is not permitted

to be established there must be such a

relationship between the act of negligence

and the nature of the illegal activity that

a standard of care owed in the particular

circumstances could only be determined by

bringing into consideration the nature of

the activity in which the parties were engaged.

The two safe blowers provide the simplest

illustration. What exigencies of the occasion

would the tribunal take into account in
determining the standard of care owed?

He goes on and refers to that New South Wales case

of BONDARENKO V SOMMERS. That is, of course, where

they took a vehicle for the purpose of engaging in a race and in such a case, of course, it was

said - - -

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McHUGH J:  I do not think they took it for the purpose of

engaging in a race. They ended up engaging -

MR HAMPSON: - - - in a race. 'That is more accurate, thank you,

Your Honour, yes. But if one goes to the headnote

in this particular case, it shows that:

A passenger was injured through the

negligent driving of a motor car. The driver

was disqualified from holding a driver's

licence at the time and was driving the car

in breach of the MOTOR VEHICLES ACT.	The
~assenger was aware of the driver's

disqualification and was a joint participant

in the commission of the offence.

The majority in the court, it was the Chief Justice

only who dissented, held that there was a duty of

care, "You looked at what they in fact were doing

and it wasn't part of the joint illegal activity

that the car in any way would be driven negligently
or anything of that particular kind; it wasn't
a necessary ingredient what they were involved

in; they weren't speeding, as it were, to escape

police pursuit or anything of that nature", and

they held that there was a duty of care to drive the car reasonably with reasonable care and they held therefore that the passenger was entitled

to recover.

So the decision of this Court, in this later

case of JACKSON V HARRISO~ did distinguish the

earlier case,SMITH V JENKINS,in which such strong

reliance is placed here. In the decision of the

Full Court, the question is whether, of course,

Their Honours there have been guilty of any error

in the approach that they have taken. The first

judgment, I suppose, although it is not the longest
judgment, appears at page 14 of the appeal book

and it is that of Mr Justice McPherson. He examines

a number of aethorities and at the bottom of

page 15 of the appeal book:  (Continued on page 8)

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:MR H.Ai."'1PSON (continuing):

This, as my brother Connolly observed in the

in the course of the submissions on appeal

in the present case, might :tf applied without

qualification mean that the general duty of

care prevails without reference to the

illegality involved. But the learned Chief

Justice of the High Court, as he now is,

went on to say that the plaintiff must fail:

And then he got Mr Justice Mason's statement that

I had referred to before.

The question then is whether the nature

of the illegal enterprise in this case was such

as to increase the risk of the injury that

ensued. It is not, I think, essential to the

application of the public policy rule that

there be a "joint" enterprise. An individual

acting on his own may be affected by it.

However, in the present instance there is

evidence that the participants had in mind the

conmion purpose, which they carried into effect,

of unlawfully taking and using a motor vehicle

without the consent of the owner. To do so

a crime, itself designated a crime by s.541

is a crime under s.408A of The CRIMINAL CODE.

of the Code. However, there is nothing in

the evidence that suggests that the joint
illegal enterprise of using the motor vehicle
contrary to s.408A increased the risk of injury

like that sustained by the plaintiff or by any

of the others involved. The accident that

occurred was not a foreseeable consequence

of the illegal enterprise or a hazard incidental

to or inherent in its execution.

He goes on to say it might have been different perhaps

if one had regard to the alcohol, but in any event

aspect of the matter and he said in any event that	that was dealt with by the contributary negligence
was not raised and could not be raised at this
particular time. So he said:

I am therefore in agreement with the orders

proposed by Mr Justice Williams, whose

reasons I have had the opportunity of

considering.

And Mr Justice Connelly also agreed with the reasons of Mr Justice Williams, which conmience

at page 18 of the appeal book. The important part

for present purposes is at page 25 of the appeal book

where he says, about five or six lines down:

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I now return to the critical issue raised

by the appeal.

There seems to me to have been a progression

in the reasoning of the High Court from

SMITH V JENKINS through CRAFT and JACKSON to 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. In consequence it is best

to start with COOK, the most recent of the

High Court cases in point.

COOK was concerned with a situation where a

vehicle was involved in a collision whilst it

was being driven by an inexperienced and unlicensed

person. Personal injury was occasioned to a

passenger in the vehicle, but it was that

passenger who had invited the unlicensed driver

to take charge of the vehicle with full

knowledge of the unlawfulness of the venture.

And so forth.

The relevant reasoning for present purposes

in that judgment commenced with the proposition

that in the ordinary case "the standard of care

required, being objective and impersonal, is not

modified or extended by the personal driving

history, ability or idiosyncrasy of the

particular driver. It is the degree of care

and skill which could reasonably be expected of

an experienced and competent driver".

And so forth.

On the facts of the case before them they held

that the "standard of the duty of care which

arose from that distinct relationship of

proximity was that which could reasonably be

driver - expected of an unqualified and inexperienced

and they held that the driver's conduct failed to

meet that test.-

Notwithstandil:lg tha~ _;he Court recognised that the

driving was unlawful, and t:l1at ooth 1:he driver and passenger

·were parties to that illegality, the· mattg was· decided

wit~t any express reference_ to_ th~ .relevance of tf'l..a.t

illegal.µ.y to theissue-or~ste.P,ce of §i. duty and its

breach .. , The C,ourt caonot .be taken as beh1g utmri.ndful of the

decisions in StlI'llLV ·J.J:U.<INS, CP.AFI' ;-· and JACKSON:	indeed
.J~T, an~ GCOK: and I- readi:fy- draw the inference that	Sir...~thony Mason was· a party. to. the decisions in CP..AFI',
he saw no inconsistency between what was said by the
majority in (XX)K and the earlier reasoning in CRAET and
JACKSON.

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:MR HAMPSON (continuing):  He then turned to JACKSON

and he concentrates on the judgment of

Mr Justice Mason and Mr Justice Jacobs, with

whom Mr Justice Aiken agreed. I have already

referred the Court to that and the passage.

BRENNAN J:  Mr Hampson, we are familiar with the

judgments.

:MR HAMPSON:  Yes, I do not go further.

BRENNAN J: The point, as I understand, which you are

seeking to make is that the judgment is right

in the sense that in terms of principle there has been a development and that the principle

was correctly applied in this case.

:MR HAMPSON: That is so, yes, Your Honour.

BRENNAN J: Whatever the facts of SMITH V JENKINS may

be.

:MR HAMPSON: Whatever they may have been, they have

been, by members of this Court, said to be

in effect distinguishable in principle. The

fact that people are involved, whether jointly

or whatever, in an illegal venture so far as

driving is concerned, does not say that the injured passenger plaintiff cannot recover.

A duty of care is still owed, providing the

Court can formulate one and that will depend,

of course, upon the nature of the driving

adventure. A speeding type of case, a pursuit
case, will be different from a case such as
the present one no doubt where there is

drink involved but they were driving from one

country town in Queensland to another, or,

in JACKSON V HARRISON where they were just

going for an amiable trip around Adelaide,

it seemed was the intention ..

McHUGH J: But if you are correct, SMITH V JENKINS must

have been decided to the contrary and so must
have BONDARENKO V SOMMERS.	But in BONDARENKO V

SOMMERS the new trial has not take place yet,

even though it is 20 years later.

:MR HAMPSON:  I did not know that.

McHUGH J: Perhaps, on the theory of the Full Court's

decision, BONDARENKO could go back for a new

trial and succeed.

:MR HAMPSON:  That may be so, Your Honour, but the situation

is - I mean the authorities, and Your Honour

Mr Justice Brennan has said that the Court is

familiar with them, show, when one reads them, a

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significant change, as Mr Justice Williams identified, and that was the approach of the

Full Court. They said, "Well, we're relying on the" - I mean, the important point of

principle from the earlier case, from

SMITH V JENKINS, the suggestion there that

there was no duty of care - that was the way

it was interpreted widely - is ~ust

saying, there is no duty of care when parties

are engaged in such an enterprise. It was
quite clear, and it was expressly said by

this Court -for examole in JACKSON V HARRISON

in the passage to which I referred -that is

no such principle at all. There will be a

duty of care, providing the court can formulate

it. We submit that the Court said you can

formulate a duty of care in this case, t~at is

the instant case. They formulated it; they

said that the plaintiff, even though he was

intoxicated and asleep in the back of the car, there was nothing about the fact that they had taken the car which in any way allowed the

defendant driver to drive as he did without

reasonable care. He still owed a duty to the plaintiff to

drive with reasonable care in that situation.

The other aspects, the alcohol and so

forth, attracted from the trial judge an

apportionment of fault which went 60 per cent

against the plaintiff. The is not a matter;

the Full Court left that there. But the

important question before this Court at the

moment is whether the Full Court were correct

in saying that there was a duty of care owed

by the defendant to the plaintiff.

BRENNAN J:  The problem from the point of view of a

special leave application, I suppose,

Mr Hampson, is this, is it not: that a

looking at SMITH V JENKINS, might well be	trial judge, looking at this judgment and
perplexed to know what is the appropriate approach which he should take to the resolution
of the case before him if the case before him
should be one which has a distinct similarity
to this case or to SMITH V JENKINS.

MR HAMPSON:  There would be no problem, of course

in Queensland - - -

BRENNAN J: Yes.

MR HAMPSON:  - - - as a result of the Full Court's

decision. There would be no difficulty there.

McHUGH J: Why, surely the trial judge is bound to follow

the High Court? Supposing the High Court thinks

SMITH V JENKINS covers the facts of his case?

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MR HAMPSON:  That, in fact, it is impossible in this particular

case to formulate a duty of care. That is what

Your Honour means?

McHUGH J: Yes, well - - -

MR HAMPSON: That is not what they said, of course, in

SMITH V JENKINS. That is a factual way of looking

at it but in SMITH V JENKINS it did appear, as

Mr Justice Mason pointed out that, in fact, what the

Court was saying was that he cannot recover - a

person cannot recover - in this particular
situation. For example, in the judgment of

Mr Justice Windeyer, I did not pause to look at it, there are quite a number of reasons that

His Honour goes on to, or with, there which could

be the reasons for the denying of a cause of

action to the plaintiff. But SMITH V JENKINS, in

our submission, is only to be approached on a

factual basis. I mean, one can say, "All right,

in SMITH V JENKINS, there is a case of robbing
the car - stealing the car - that is similar in

fact here". But, so far as the principle is

concerned of the later decisionsof the High Court,

that is an immaterial fact, whether you steal it

or not. The question is whether, in the nature

of the enterprise - or the condition as it is, or

coloured as it is by this illegality - the question

is whether or not there is something there which

negates the existence of a duty of care.

In principle, one would have said that once

one had stolen a car - two people had stolen the

car; one is driving the other is a passenger; there

is no suggestion of police pursuit or anything like

that. Indeed, they are absent from the town now

where the vehicle was stolen; it was driving along

the road. One would have thought that it is quite
simple for a court to say, "Well, the relevant

standard of care is that of an ordinary driver".

There is nothing at all that colours those facts

there, different from a case where, perhaps, they

were racing or, the suggestion is, where they were trying to

escape from the police.

So, really, we submit that the Full Court has

properly reconciled the decisions in the light of

the later decisions of this Court - and that is

important.

McHUGH J: But every judgment has got to be read in the light

of its own facts and if you had to select which
decision of the High Court more approximately covered

this case, surely the answer would be SMITH V JENKINS

rather than JACKSON V HARRISON?

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MR HAMPSON:  That might be so, Your Honour, but one does not

look at cases just to find cases which are closer in

fact. The question, really, is that the principle

of law is what should be controlling the decision,not the

fact that the facts in one particular case seem more akin

to the facts in another, and - - -

McHUGH J: It is a question of what the ratio decidendi is

and depending upon what theory you adopt, certainly

the material facts are highly relevant. Surely the

ratio of SMITH V JENKINS applies to the facts of

your case. Now, SMITH V JENKINS may be wrongly

decided, perhaps it has got to be overruled, but is

that not a reason why special leave should be

granted?

MR HAMPSON: Well, that means for the Court to say that,

with respect, must really be finding an

inconsistency between the later cases of this

Court and SMITH V JENKINS - the earlier case - to

justify such an examination. We would submit

that, really, the Full Court has properly done

that. It has properly relied on the later

decisions of this particular Court. I cannot take

the matter any further than that, though, I am

afraid. I can only, as I have submitted, say that

the Court has followed the decisions of this Court
that it is a far better approach not to look, as

in SMITH V JENKINS the Court was doing, concerned,

quite obviously-•.it_ is very much coloured with public

policy considerations, matters of public policy and so forth, involved in the fact that there was

illegality involved.

Now, the later cases of this Court, put the

matter rather on the nature of whether there is a particular hazard, or something of that kind,

arising out of the character of the illegal

enterprise which would say that there should not

be a duty of care because the Court could not

formulate one. In this particular case, that

accords with that later view because there was

absolutely nothing in the evidence which indicated

that the vehicle was being used at the relevant

time in any hazardous or dangerous way.

(Continued on page 15)

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McHUGH J:  But it does seem extraordinary, does it not, that

two people can steal a car then when one drives

it negligently the other one can sue the other

person and obtain damages from a compulsory third

party insurer?

MR HAMPSON:  No, with respect, Your Honour. The policy is

that whoever is driving the car - certainly

in Queensland - the driver is to be indenmified,

whoever he is, whoever the particular driver is,
you see,and supposing somebody steals a car and

knocks down an innocent bystander, one has the

same question. It might be regrettable for the

licensed insurer to have to pay that damages

because the person did not take out the policy, was

not authorized by the owner of the car to drive,

was a thief,but there is no reason, in principle,

once one comes over that point that that is what is

involved in the statute that the injured person is

not an innocent bystander but another thief.

The question is, is he, as it used to be put and,

I think, it was put in one of the cases IIEntioned, capit lupirrum,

is he an outlaw, does he bear the head of a wolf and, we would submit, that is not the case. The

principle is that he will have to be by his fellow

thief, his personal integrity, his bodily integrity

and the like, will have to be taken care of

according to reasonable standards if, in fact,

reasonable standards in what is being done can be

imposed. But, I do not think that there is anything

that I can add.

BRENNAN J:  We need not trouble you in reply, Mr Keane.

The Court is of the opinion that special leave should be granted in this case. Special leave will

be granted accordingly.

AT 11.27 AM THE MATTER WAS ADJOURNED SINE DIE

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