Gala & Ors v Preston

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.