Gala & Ors v Preston - [1989] HCATrans 292

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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

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

C2T23/l/HS

17/11/89

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…

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 [1989] HCATrans 292
Case: [1989] HCATrans 292
Decision Date

CaseChat Overview and Summary

The parties to this matter before the High Court of Australia were Michael Gala, John Chapman, Marlene Chapman and Suncorp Insurance and Finance (applicants) and Frank Raymond Preston (respondent). The dispute concerned personal injury suffered by the respondent during the course of a joy-ride, where the respondent and the other participants were found by the courts below to have been jointly engaged in the unlawful use of a vehicle. The Full Court had taken a different view to the trial judge, holding that the ordinary duty of care applied between the participants in the joint illegal use of the vehicle.

The central legal issue before the High Court was whether the ordinary duty of care applied between participants in a joint illegal enterprise, specifically in the context of the unlawful use of a motor vehicle. The applicants argued that the case was indistinguishable from the High Court's decision in *Smith v Jenkins*, where a plaintiff in a similar situation had failed in their claim. The applicants contended that in *Smith v Jenkins*, the negligent driving was itself the criminal act in which both parties were engaged, and that the common illegal purpose was being achieved by the very acts in respect of which the plaintiff asserted a duty of care.

The applicants submitted that *Smith v Jenkins* was not wrongly decided and that subsequent authorities had not suggested otherwise. They argued that the facts of the present case were materially the same as *Smith v Jenkins*, as the negligent use of the vehicle was illegal and joint, and the negligent act was part of the criminal enterprise. The respondent, on the other hand, argued that the Full Court had correctly distinguished *Smith v Jenkins* from the present case, and from other authorities such as *Jackson v Harrison*. The respondent's counsel referred to *Jackson v Harrison* to assert that *Smith v Jenkins* did not establish a general rule that participants in a joint illegal enterprise owe no duty of care to each other, but was limited to its particular facts.

Orders