Gala v Preston

[1991] HCA 18

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

GALA v. PRESTON

(1991) 172 CLR 243

28 May 1991

Negligence

Negligence—Duty of care—Plaintiff and defendant unlawfully using stolen motor car—Whether driver owned duty of care to passenger—Proximity—Public policy.

Decisions

MASON C.J., DEANE, GAUDRON and McHUGH JJ. The question raised in this appeal is: what are the principles which govern the liability of the driver of a motor vehicle to a passenger in that vehicle who is injured as a result of the careless driving of the vehicle, in the course of a joint enterprise that involves the commission of a criminal offence, being the theft of the vehicle and its unlawful use contrary to s.408A of The Criminal Code (Q.) ("the Code")? The question is one of fundamental importance and it calls for a consideration of a number of decisions of this Court.
The Facts

2. Shortly before midnight on 14 August 1984 the respondent (the plaintiff at the trial), then aged nineteen, suffered injuries when the motor vehicle in which he was a passenger veered off the road and struck a tree. The vehicle was being driven by the first appellant (the first defendant at the trial). At the time of the accident the respondent, along with the first appellant and two other youths, Steven Burn and Ray Simms, who were passengers in the vehicle, was engaged in the unlawful use of the motor vehicle contrary to s.408A of the Code.

3. The primary judge found that at about noon on 14 August 1984 the four youths went to the Customs House Hotel, Maryborough, where they began to play pool and consume liquor. They had lunch at about 2.00 p.m. The respondent consumed approximately forty scotches during the course of the afternoon and evening. His companions drank beer and consumed an equivalent amount of alcohol to that consumed by the respondent. The primary judge found that the probabilities were that the respondent and the first appellant, at the time of the accident, had a blood alcohol concentration in excess of .2 per cent.

4. At some stage during the evening, the party formed the intention to "go up north" and to steal a motor vehicle for that purpose. The respondent's evidence was that it had been his intention that he and Simms would visit the respondent's brother and some friends in Gladstone, whilst the first appellant and Burn would continue north to Rockhampton where they planned to commit some breaking and entering offences. When the suggestion was put to him during the course of cross-examination, the respondent said that he assumed that the journey north was to be something of a "joy ride".

5. Between 7.30 p.m. and 8.00 p.m., the four men discovered a vehicle parked in town with the keys in the ignition. After filling the vehicle with fuel at Maryborough, the respondent drove the vehicle some distance north of Gin Gin, whereupon the first appellant took over the driving. The respondent climbed into the rear left-hand seat of the vehicle and, after approximately half an hour, fell asleep. Shortly before 11.50 p.m., just south of Gladstone, the vehicle left the Bruce Highway and struck a tree. Simms was killed in the accident. The respondent suffered a number of injuries, the most significant being the dislocation of his right hip.

6. The respondent and the first appellant both pleaded guilty to and were convicted of unlawfully using a motor vehicle contrary to s.408A of the Code and were each placed on twelve months probation and ordered to pay restitution to the owner of the vehicle. The respondent was further ordered to perform unpaid community service.
The Issues in the Action

7. The respondent brought an action in the District Court against the first appellant, the second and third appellants (the owners of the vehicle) and the fourth appellant (the third party insurer and defendant by election) for damages for personal injuries sustained as a result of the negligent driving of the first appellant. The fourth appellant alleged in its entry of appearance and defence, first, that the respondent was not entitled to recover damages for injury and loss resulting from the accident because the accident occurred in the course of the joint illegal activity of unlawfully using the vehicle in question. Secondly, it alleged that the respondent voluntarily accepted the risk of injury, by travelling in a vehicle which he knew to have been illegally taken and illegally used and which he could have expected would be driven in an unsafe manner and, further, by consuming alcohol to the extent that the respondent impaired his own capacity to judge whether the first appellant was capable of driving the vehicle safely. Thirdly, it was alleged that the first appellant did not breach any duty of care he owed to the respondent. Alternatively, it was alleged that, in travelling in a vehicle which had been illegally taken and was being illegally used, in consuming alcohol to the extent referred to above and in failing to wear a seatbelt, the respondent contributed to his injuries.
The Decision of the Primary Judge

8. The primary judge was satisfied that the respondent was aware that the amount of alcohol consumed by the participants in the enterprise took them well over the permitted blood alcohol level for driving a motor vehicle and would result in them exhibiting observable signs of intoxication. However, the judge went on to find that an observer with a similar blood alcohol content would have his ability to observe and appreciate the signs in another person significantly impaired. Somewhat surprisingly, his Honour then stated that he was not persuaded that the respondent knew and appreciated that the first appellant's ability to drive was so impaired as to displace the ordinary standard of care owed by a driver to a passenger; nor did he consider that the respondent perceived and fully appreciated the existence of danger so as to accept voluntarily the risk of the consequent injury. The learned judge concluded that, as the respondent's failure to appreciate the risk was due to his own consumption of alcohol and as he had failed to wear a seatbelt, the contributory negligence of the respondent should be assessed at 60 per cent. These findings were not challenged on appeal.

9. However, the primary judge considered the decisions in Smith v. Jenkins (1970) 119 CLR 397, Progress and Properties Ltd. v. Craft (1976) 135 CLR 651, Jackson v. Harrison (1978) 138 CLR 438 and Bondarenko v. Sommers (1968) 69 SR(NSW) 269 in relation to the rights inter se of co-participants in a joint illegal enterprise and, in the light of those cases, concluded that the joint illegal enterprise in which the parties were engaged prevented him from determining the appropriate duty of care owed by the first appellant to the respondent. Judgment was entered for the defendant by election.
The Decision of the Full Court on Appeal

10. On appeal, the Full Court of the Supreme Court (Connolly, McPherson and Williams JJ.) reversed the decision of the primary judge, concluding that, on the facts of the case, the ordinary duty of care applied and that the first appellant was in breach of that duty of care. Williams J. (with whom Connolly J. agreed) considered the principle applicable to be that

"(s)pecial or exceptional circumstances affecting the relationship between the driver and passenger of a motor vehicle may take the case out of the ordinary class of relationship between such persons and put such people in a relationship in which either some duty of care (perhaps of a lower standard) is owed or even into a situation where no duty of care is owed at all."

11. Williams J. noted that the accident occurred some hours after the vehicle was stolen and some hundreds of kilometres from where it had been stolen and that there was nothing to suggest that, at the material time, the vehicle was being driven in an attempt to avoid apprehension by the police. Accordingly, Williams J. considered that there were no circumstances which could be said to give rise to the driving of the vehicle otherwise than in accordance with the ordinary reasonable standard expected of an experienced, skilled and careful driver.

12. Similarly, McPherson J. considered that, in the circumstances of the case, the joint illegal enterprise of using the motor vehicle contrary to s.408A of the Code did not increase the risk of the ensuing injury such that the injury could be said to be a "foreseeable consequence of the illegal enterprise or a hazard incidental to or inherent in its execution".
The Case for the Appellants

13. In this Court, the appellants submit that the present case is indistinguishable from the case of Smith v. Jenkins and ought therefore to be decided in accordance with the principle for which that case is authority. Both cases, it is said, concern the negligent driving of a motor vehicle by one of the participants in the unlawful use of the vehicle for the purpose of a "joy ride", the unlawful activity resulting in injury to another participant in the crime. The appellants submit that the principle established by Smith v. Jenkins is that, where the very act of which the plaintiff complains is the criminal act in which both the plaintiff and defendant are jointly engaged, no duty of care does or can arise between the driver and the co-participant in the use of the vehicle. On the other hand, the respondent submits that the case is distinguishable from Smith v. Jenkins and, alternatively, that the decision in that case should be overruled.
Illegality as a Defence to an Action in Negligence

14. In Henwood v. Municipal Tramways Trust (S.A.) (1938) 60 CLR 438, this Court rejected unanimously the argument that a passenger in a tram had no action in negligence against the tramway authority because he put his head out of the window of the tram in breach of a by-law made by the authority as a safety measure. The passenger, affected by nausea, having put his head outside the window, was struck by two standards while the tram was in motion, the standards being situated seventeen inches from the side of the tram. The authority was held liable in negligence in that it had failed to construct barriers to prevent passengers leaning out of the windows. The action of the passenger in breach of the by-law which exposed him to liability for a penalty under the by-law was not a defence to the action. The proposition for which Henwood stands as authority is that "there is no rule denying to a person who is doing an unlawful thing the protection of the general law imposing upon others duties of care for his safety", to repeat the words of Dixon and McTiernan JJ.: at p 462.

15. That principle is, of course, subject to the qualification that a statutory provision which creates an offence may evince an intention to disentitle a person who sustains injury in committing the offence from recovery in a civil action: see at p 460. This qualification has no relevance for the present case because it is not suggested that s.408A manifests such an intention. Illegality as a Defence in Cases of Joint Illegal Enterprise

16. However, Henwood was not a case in which the plaintiff sustained injury in the course of the commission by plaintiff and defendant of a joint illegal enterprise. Whether a plaintiff in that situation could recover damages for negligence was the question which arose for consideration in Smith v. Jenkins. The facts were similar to those in the present case. The plaintiff and the defendant, having assaulted and robbed the owner of a motor vehicle, unlawfully took the vehicle without the owner's consent. The plaintiff, who was a passenger, was injured when the vehicle left the road and collided with a tree due to the defendant's careless driving. The Court held unanimously that the plaintiff could not recover. Although the ratio of the decision is not altogether clear, it is best treated as deciding that, in the circumstances, no relevant duty of care arose on the part of the defendant to the plaintiff by reason of their participation in a joint illegal enterprise. Kitto J. considered that the relevant principle was that persons who join in committing an illegal act which they know to be unlawful have no legal rights inter se by reason of their respective participations in that act: at p 403. Windeyer J. observed (at p 422):
"If two or more persons participate in the commission of a
crime, each takes the risk of the negligence of the other or others in the actual performance of the criminal act. That formulation can be regarded as founded on the negation of duty, or on some extension of the rule volenti non fit injuria, or simply on the refusal of the courts to aid wrongdoers. How it be analysed and explained matters not." Earlier (at p 418), his Honour rejected the public policy approach and stated that the special relationship between the parties excluded the existence of a duty of care. He referred to the principle that an accomplice owed no duty of care to another accomplice in doing an act which was "a step in the execution of the common illegal purpose" (at p 419) and went on to say (at p 421) that "(t)he question is whether the harm arose from the manner in which the criminal act was done." Barwick C.J. (at p 400) and Owen J. (at pp 425-426) appear to have agreed with that statement of principle, whereas Walsh J. (at pp 433-434) stated that the rule was one of public policy.

17. But it would be wrong to regard the case as authority for the proposition that in all circumstances the participation of plaintiff and defendant in a joint illegal enterprise will negate the existence of a duty of care on the part of the defendant to the plaintiff, even when the alleged breach of duty arises in the execution of the criminal act. To take one example. The fact that a joint enterprise is carried on illegally in breach of safety regulations requiring a particular precaution to be taken should not preclude the existence of a relevant common law duty of care on the part of one participant to another unless circumstances of the parties' relationship, including the nature and incidents of the enterprise, are such as to make it unreasonable to fix a participant with a duty of care. There is no a priori reason why the illegality of a particular enterprise or activity should automatically negate the existence of a duty of care which might otherwise arise from the relationship which subsists between the parties, especially if it be accepted that the decision in Smith v. Jenkins does not rest on public policy.

18. So much at least was established by the subsequent decision in Progress and Properties. The plaintiff was injured when a hoist on which he had entered for the purpose of doing work on the twentieth floor of a building under construction crashed to the ground. The hoist was designed for the carriage of materials, not persons. A regulation made it an offence to ride on the hoist or to permit a person to do so. In the result both the plaintiff and the operator of the hoist, an employee of the defendant, acted in breach of the regulation. The accident occurred when the operator's foot slipped off the brake pedal, allowing the hoist platform to fall to the ground. The plaintiff sued in negligence and for breach of statutory duty not to lower any load at a speed exceeding 600 feet per minute. By majority (Stephen, Mason, Jacobs and Murphy JJ., with Barwick C.J. dissenting), the Court held that the defence of illegality could not be sustained.

19. Jacobs J. (with whom the other Justices in the majority agreed) said (at p 668):

"A duty of care arises out of the relationship of particular persons one to another. An illegal activity adds a factor to the relationship which may either extinguish or modify the duty of care otherwise owed. A joint illegal activity may absolve the one party from the duty towards the other to perform the activity with care for the safety of that other. That, it seems to me, is the effect of Smith v. Jenkins. Where there is a joint illegal activity the actual act of which the plaintiff in a civil action may be complaining as done without care may itself be a criminal act of a kind in respect of which a court is not prepared to hear evidence for the purpose of establishing the standard of care which was reasonable in the circumstances. A court will not hear evidence nor will it determine a standard of care owing by a safe blower to his accomplice in respect of the explosive device."

His Honour went on to say (at p 668) that the relation of the illegality to the negligence complained of did not require an examination of any special aspect of the relationship between the participants which could affect the standard of care, observing (at pp 668-669):

"Whether or not it was legal to ride on the hoist platform the same standard of care in operating the hoist would be expected of the operator, and the court would not be obliged to embark on an inquiry whether the act of the operator was reasonable, having regard to the illegality of the enterprise."

As a further ground for rejecting the defence of illegality, his Honour added that the defence was wholly inapplicable to the circumstances of regulations designed to enforce a high specific duty to ensure the safety of the participant in the illegal enterprise: see at p 669.

20. Again, in Jackson v. Harrison, the Court, by majority, did not regard participation in an illegal enterprise as disabling. The facts of the case are closer to those of Smith v. Jenkins than Progress and Properties. The plaintiff was injured when travelling as a passenger in the defendant's car as a result of the defendant's negligent driving. Both parties' driving licences had been suspended in consequence of convictions for traffic offences. Each was aware of the other's disqualification. Nonetheless they took the car on a weekend journey, agreeing to share the driving. Each committed the offence of driving a motor vehicle without a licence. Three members of the majority of four (Mason J., Jacobs J. and Aickin J.) applied the law as stated by Jacobs J. in Progress and Properties. Jacobs J. (with whom Aickin J. agreed) observed (at p 457):

"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."

21. His Honour went on to observe (at p 459) that in accordance with Henwood it is necessary to consider whether, to use the words of Dixon and McTiernan JJ. in that case (at p 460),

"it is part of the purpose of the law against which the plaintiff has offended to disentitle a person doing the prohibited act from complaining of the other party's neglect or default, without which his own act would not have resulted in injury".

His Honour distinguished Smith v. Jenkins on the ground that it concerned a relevant joint criminal enterprise of a serious kind beginning with the theft of money, the car keys and the car itself. The criminal enterprise was such that it was not possible to determine a standard of care for such a course of criminal activity: see at p 460. However, his Honour conceded that the decision might not have been the same if the accident had occurred days, weeks or months later when the circumstances of the taking of the vehicle ceased to have any significant relationship to the manner in which the vehicle was being used. By way of contrast, the facts in Jackson v. Harrison were such that the joint illegality had no bearing at all on the standard of care reasonably to be expected of the driver.

22. The majority reasoning in Progress and Properties and Jackson v. Harrison is inconsistent with the proposition that a defendant is under no duty of care whenever he or she is engaged with a plaintiff in the commission of a joint illegal enterprise and the alleged breach of duty arises in the execution of the criminal act. There are two strands to the majority reasoning. The first is that, in cases involving a joint illegal enterprise, it is necessary to examine the relation of the illegality to the negligence complained of with a view to ascertaining whether it is possible or feasible for the court to determine an appropriate standard of care. If it is impossible or not feasible to do so, no duty of care arises. The second is that, in cases of illegality arising from infringement of statutory provisions which are designed to promote safety, e.g., traffic laws and industrial safety regulations, there is no reason why illegality of that kind should negate the existence of a duty of care.

23. However, it is necessary to take account of developments affecting the concept of the duty of care since Smith v. Jenkins, Progress and Properties and Jackson v. Harrison were decided. Commencing with Jaensch v. Coffey (1984) 155 CLR 549, this Court, in a series of decisions, has accepted that a relevant duty of care will arise under the common law of negligence only in a case where the requirement of a relationship of proximity between the plaintiff and the defendant has been satisfied: see Sutherland Shire Council v. Heyman (1985) 157 CLR 424, at pp 461-462, 506-507; Stevens v. Brodribb Sawmilling Co. Pty. Ltd. (1986) 160 CLR 16, at pp 30, 50-52; San Sebastian Pty. Ltd. v. The Minister (1986) 162 CLR 340, at pp 354-355; Cook v. Cook (1986) 162 CLR 376, at pp 381-382. The requirement of proximity constitutes the general determinant of the categories of case in which the common law of negligence recognizes the existence of a duty to take reasonable care to avoid a reasonably foreseeable and real risk of injury. In determining whether the requirement is satisfied in a particular category of case in a developing area of the law of negligence, the relevant factors will include policy considerations. Where, as in the present case, the parties are involved in a joint criminal activity, those factors will include the appropriateness and feasibility of seeking to define the content of a relevant duty of care. Thus, it would border on the grotesque for the courts to seek to define the content of a duty of care owed by one bank robber to another in blowing up a safe which they were together seeking to rob. On the other hand, to take an extreme example the other way, it would be unjust and wrong for the courts to deny the existence of the ordinary relationship of proximity which exists between the driver of a motor vehicle and a passenger merely because the driver was, with the encouragement of the only passenger, momentarily driving in a traffic lane reserved for the use of cars with three or more occupants.

24. An exemplification of the relationship of proximity which provides particular assistance in dealing with the problems that this case presents is to be found in Cook v. Cook. There, an inexperienced and unlicensed driver, the defendant, was invited by the plaintiff to drive a car in which the plaintiff travelled as a passenger. The defendant, in seeking to avoid a parked vehicle, accelerated and lost control of the car so that it mounted the footpath and crashed into a concrete pole, causing injury to the plaintiff. Mason, Wilson, Deane and Dawson JJ., in their joint judgment, recognized that, where there is ordinarily a relationship of proximity between driver and passenger, the standard of care is that reasonably to be expected of an experienced, competent driver. Then the standard is objective and is not modified or extended by the driving history or ability of the particular driver. Their Honours went on to point out (at pp 383-384) that special and exceptional circumstances, such as those of that case, may transform the relationship between a driver and a particular passenger into a special or different class or category of relationship. It follows that the onus of establishing the existence of facts giving rise to a relationship of such a special or different category under which it would be unreasonable to fix the duty of care owed by a driver by reference to the ordinary standard of care lies on the party who asserts it: see at p 387. Likewise, the onus lies on the party who asserts that, by reason of special and exceptional facts, the ordinary relationship of a driver towards a passenger is transformed into one which lacks the requisite relationship of proximity to give rise to a relevant duty of care.

25. So, in the present case, it is a matter of examining the relationship between the respondent and the first appellant with a view to ascertaining whether there was a relationship of proximity such as to give rise to a relevant duty of care on the part of the first appellant as driver of the motor vehicle to the respondent as his passenger. The respondent does not contend that, if such a duty of care arose, the appropriate standard of care was other than the ordinary standard of care to be expected of a driver to a passenger in the vehicle.

26. When attention is given to the circumstances of the present case it is difficult to see how they can sustain a relationship of proximity which would generate a duty of care. The joint criminal activity involving the theft of the motor vehicle and its illegal use in the course of a spontaneously planned "joy ride" or adventure gave rise to the only relevant relationship between the parties and constituted the whole context of the accident. That criminal activity was, of its nature, fraught with serious risks. The consumption by the participants, including the first appellant, of massive amounts of alcohol for many hours prior to the accident would have affected adversely the capacity of a driver to handle the motor vehicle competently. Despite the surprising conclusion of the primary judge, each of the parties to the enterprise must be taken to have appreciated that he would be encountering serious risks in travelling in the stolen vehicle when it was being driven by persons who had been drinking heavily and when it could well be the subject of a report to the police leading possibly to their pursuit and/or their arrest. In the special and exceptional circumstances that prevailed, the participants could not have had any reasonable basis for expecting that a driver of the vehicle would drive it according to ordinary standards of competence and care.

27. In this situation the parties were not in a relationship of proximity to each other such that the first appellant, as the driver of the vehicle, had a relevant duty of care to the respondent, as a passenger in the vehicle. In the circumstances just outlined, it would not be possible or feasible for a court to determine what was an appropriate standard of care to be expected of the first appellant as the driver of the vehicle. To conclude that he should have observed the ordinary standard of care to be expected of a competent driver would be to disregard the actual relationship between the parties as we have described it. To seek to define a more limited duty of care by reference to the exigencies of the particular case would involve a weighing and adjusting of the conflicting demands of the joint criminal activity and the safety of the participants in which it would be neither appropriate nor feasible for the courts to engage.

28. In the result the appeal should be allowed with costs, the orders of the Full Court of the Supreme Court should be set aside and, in lieu thereof, the appeal to that Court should be dismissed with costs.

BRENNAN J. The plaintiff (the respondent) was a passenger in a motor vehicle being driven by the first defendant (the appellant Gala) at high speed northbound along a straight section of the Bruce Highway towards Gladstone when, shortly before 11.50 p.m. on 14 August 1984, it left the road, collided with a tree and broke in two. The plaintiff sued the defendants (the appellants) in the District Court in Gladstone for damages in respect of personal injuries suffered by him in the accident which, he alleged, was the result of the first defendant's negligence. The plaintiff and the first defendant were two of a group of four young men travelling in the vehicle who had unlawfully taken the vehicle in Maryborough earlier that night, probably between 7.30 and 8.00 p.m., intending to drive it to Gladstone and further north to Rockhampton. At the time of the accident, the four young men were parties to the unlawful use of the vehicle contrary to the provisions of s.408A of The Criminal Code (Q.).

2. In the District Court Judge Dodds, finding that the occupants of the car were engaged in a joint unlawful use of the vehicle, held the case to be of the same kind as Smith v. Jenkins (1970) 119 CLR 397 which, according to the explanation of that case proffered by Jacobs J. in Jackson v. Harrison (1978) 138 CLR 438, at p 460, was a case in which a standard of care could not be determined in respect of the joint criminal enterprise of unlawfully using a motor vehicle. Judge Dodds said that he could not determine an appropriate standard of care and he entered judgment for the defendants. On appeal the Full Court of the Supreme Court of Queensland held that a standard of care could be determined. Williams J., with whom Connolly J. agreed, said:
"The incident immediately causing the injury to the
appellant, and the acts alleged to constitute the negligent driving by the respondent Gala, occurred some hours after the vehicle was stolen, and some hundreds of kilometres north along the highway from where it had been stolen. There is nothing to suggest that at the material time the youths in the car were attempting to avoid capture by the police and had either expressly or impliedly by conduct become parties to an illegal venture which necessitated the vehicle being driven otherwise than in accordance with the ordinary reasonable standard expected of an experienced, skilled and careful driver.

It follows, in my respectful view that the learned trial judge erred in concluding that he could not determine an appropriate duty of care. The ordinary duty of care applied and the only reasonable inference open from the facts is that the respondent Gala so drove at the material time that he breached that duty of care. I would therefore find that the respondent Gala was negligent."

McPherson J. observed:

"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."

The Full Court gave judgment for the plaintiff in the sum of $3,091.20 being the damages assessed by Judge Dodds adjusted for interest and reduced by 60% for the plaintiff's contributory negligence. The appeal to this Court raises for consideration once again the principle which governs a plaintiff's entitlement to recover damages for negligence when the act or omission which causes the damage in suit occurs in the course of the commission of a criminal offence to which the plaintiff and defendant are parties.

3. In a series of cases in this Court the problem of liability in negligence to a plaintiff committing or being party to the commission of a criminal offence has been considered: Henwood v. Municipal Tramways Trust (S.A.) (1938) 60 CLR 438; Smith v. Jenkins; Progress and Properties Ltd. v. Craft (1976) 135 CLR 651; Jackson v. Harrison. In these cases, the basis for denying to a plaintiff a right to recover has been stated in different ways. On one approach, it is possible to determine this case without considering those differences, for the facts of the present case are similar to the facts in Smith v. Jenkins. Although Smith v. Jenkins was distinguished from Progress and Properties Ltd. v. Craft and Jackson v. Harrison by the majorities in those cases, the actual decision in Smith v. Jenkins was not overruled. There are some differences in incidental facts between this case and Smith v. Jenkins, but the two cases are indistinguishable in their material facts. In particular, in both cases the plaintiff sustained his injuries in an accident as the result of the defendant's carelessness in controlling a motor vehicle that the plaintiff and the defendant were unlawfully using and, in both cases, the journey which followed immediately on the unlawful taking of the vehicle had been contemplated when the vehicle was taken. However, to determine this case on merely a factual correspondence with Smith v. Jenkins would leave unresolved the question whether there is any and what principle by which to determine the claim of a plaintiff who is a party to a criminal offence and who is injured by the carelessness of a co-offender in the course of committing the offence. Some reconsideration of the different statements of the basis for denying recovery is called for and a statement or restatement of the relevant principle must be attempted. To undertake that task, I would commence by recalling some basic propositions which inform the area of the law relevant to this case.

4. It is trite law that in every tort of negligence there are a duty of care owed by the defendant to the plaintiff, a breach of that duty by the defendant and consequent damage suffered by the plaintiff: Overseas Tankship (U.K.) Ltd. v. Morts Dock and Engineering Co. Ltd. ("The Wagon Mound (No.1)") (1961) AC 388, at p 425. These elements can be expanded by five propositions:

1. A defendant's liability in negligence relates to the damage which the plaintiff has actually suffered, and to no other: The Wagon Mound (No.1), at p 425; Sutherland Shire Council v. Heyman (1985) 157 CLR 424, at pp 486-487. 2. A defendant's liability for that damage arises from an act done or an omission made by the defendant (the relevant act or omission) which is a cause of the damage suffered: Chapman v. Hearse (1961) 106 CLR 112, at p 122. However, an omission cannot be said to be a cause of damage unless the defendant was under a duty to act to avoid or prevent the damage and the omission is a breach of that duty: East Suffolk Rivers Catchment Board v. Kent (1941) AC 74; Jaensch v. Coffey (1984) 155 CLR 549, at p 578; Sutherland Shire Council v. Heyman, at pp 476-481. 3. A defendant's liability for damage does not extend to damage caused by the relevant act or omission unless the possibility of causing that damage or damage of the same kind was reasonably foreseeable at the time when the relevant act was done or the relevant omission made: Bolton v. Stone (1951) AC 850, at p 858; Hughes v. Lord Advocate (1963) AC 837; Mount Isa Mines Ltd. v. Pusey (1970) 125 CLR 383, at pp 390, 392-393, 401-403, 413-414; Jaensch v. Coffey, at pp 562-563. 4. A defendant is liable if, and because, a reasonable person in the defendant's position foreseeing the possibility of causing the damage suffered or damage of the same kind would not have done the relevant act or made the relevant omission: Blyth v. The Birmingham Waterworks Company (1856) 11 Ex 781 (156 ER 1047); Heaven v. Pender (1883) 11 QBD 503, at p 509; Donoghue v. Stevenson (1932) AC 562, at pp 580-581; Fardon v. Harcourt-Rivington (1932) 146 LT 391, at pp 392,393; Bolton v. Stone, at pp 866-869. That is the foundation not only of every duty of care in torts of negligence but of the standard of care required to discharge the duty: Vaughan v. Menlove (1837) 3 Bing (NC)468, at p 475 (132 ER 490, at p 493). The standard of care is fixed by reference to the steps which the hypothetical reasonable person would take to avoid or prevent the possibility of the occurrence of the foreseeable damage: Glasgow Corporation v. Muir (1943) AC 448, at p 457; Wyong Shire Council v. Shirt (1980) 146 CLR 40, at p 45; Jaensch v. Coffey, at pp 562-563. 5. A legal duty does not always arise when the facts show that the kind of damage suffered by the plaintiff was reasonably foreseeable by the defendant. Elements in addition to reasonable foreseeability of damage are required to give rise to a duty of care to avoid or prevent damage other than physical damage to the person or to the property of the plaintiff; similarly, additional elements are required where the act or omission of the defendant amounts to a representation to the plaintiff on which the plaintiff relies in doing an act or abstaining from acting whereby the relevant damage is caused: Hedley Byrne and Co. Ltd. v. Heller and Partners Ltd. (1964) AC 465; Shaddock and Associates Pty. Ltd. v. Parramatta City Council (No.1) (1981) 150 CLR 225, at pp 230-231; Mutual Life and Citizens' Assurance Co. Ltd. v. Evatt (1968) 122 CLR 556, at pp 568-570; Jaensch v. Coffey, at pp 574-576; San Sebastian Pty. Ltd. v. The Minister (1986) 162 CLR 340, at p 369. Again, there may be special features of the circumstances in which the relationship between the plaintiff and the defendant exists which preclude the arising of a duty of care or modify the standard of care otherwise required to discharge the duty: Rootes v. Shelton (1967) 116 CLR 383, at p 389; The Insurance Commissioner v. Joyce (1948) 77 CLR 39, at p 59; Cook v. Cook (1986) 162 CLR 376, at pp 391-394.

5. Ordinarily, where the plaintiff's damage consists in physical injury to person or property caused by an act or omission of the defendant without the intervention of any other person - the archetypal category of negligence with which Donoghue v. Stevenson was concerned - no more is required to establish a relationship giving rise to a duty of care than that a reasonable person in the defendant's position would foresee the possibility of damage of that kind. No more is needed to establish the standard of care than that a reasonable person in the defendant's position, foreseeing the possibility of damage of that kind, would not have done the act or made the omission which caused the injury suffered by the plaintiff. As I read Lord Atkin's speech in Donoghue v. Stevenson (at pp 580-581), foreseeability is what he had in mind when he used the term "proximity". He did not intend that term to be confined to physical proximity but to embrace "such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act".

6. In recent times, as new categories of negligence have been recognized, the term "proximity" has been used frequently to describe any relationship out of which a duty of care arises whether or not reasonable foreseeability is the only or sufficient criterion for the existence of the relevant duty of care. In the present case, the majority seek to determine by reference to this extended notion of proximity whether the facts bring the case within one of "the categories of case in which the common law of negligence recognizes the existence of a duty to take reasonable care to avoid a reasonably foreseeable and real risk of injury". I am unable to adopt this approach. Use of the term "proximity" in its extended sense can be accepted only if it is steadily kept in mind that the term may then comprehend either elements additional to reasonable foreseeability which are essential to the existence of a duty in a new category of negligence or the elements in a relationship which, despite reasonable foreseeability, would preclude the arising of a legal duty of care. (By a new category of negligence I mean a category where the defendant's act or omission is not the direct cause of physical injury to the plaintiff's person or property.) Moreover, "proximity" in the extended sense may comprehend the effect of a statute giving a particular character to a relationship, whereas the duty of care relevant to the archetypal category of negligence is deduced from all the factual circumstances which constitute the relationship of the plaintiff and the defendant: Grant v. Australian Knitting Mills Ltd. (1935) 54 CLR 49, at p 64; (1936) AC 85, at p 103. "Proximity" in its extended sense may also comprehend "policy considerations". In the present case the majority hold that policy considerations "include the appropriateness and feasibility of seeking to define the content of a relevant duty of care".

7. The amorphous character of the extended notion of proximity was perceived by Lord Bridge of Harwich in Caparo Industries Plc. v. Dickman (1990) 2 AC 605, at pp 617-618:
"What emerges is that, in addition to the foreseeability of
damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. But ... the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope. Whilst recognising, of course, the importance of the underlying general principles common to the whole field of negligence, I think the law has now moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes."

8. There are logical and jurisprudential objections to the employment of "proximity" in its extended sense as a criterion by which to determine whether a duty of care exists in a new category of negligence or to determine whether a relationship is such that, despite reasonable foreseeability, no duty of care has arisen. If the term be used as a description of a relationship out of which a duty of care does arise, it would be a sophism to invoke the term as a criterion to determine whether a duty of care arises. In this case, for example, to say of the relationship between the plaintiff and the first defendant that it was not a proximate relationship and therefore no duty of care was owed would be to state as a conclusion what must be demonstrated to justify the premiss that the relationship was not a proximate one.

9. On the other hand, if "proximity" in the extended sense be invoked primarily as a criterion of the existence of a duty of care, it is too amorphous a concept to serve the purpose. I have elsewhere stated my reasons for rejecting the notion of proximity in its extended sense as a working criterion of liability (San Sebastian, at pp 367-369; Hawkins v. Clayton (1988) 164 CLR 539, at pp 555-556). This case presents starkly the problem of the inadequacy of content of the notion.

10. Here the parties are driver and passenger in a car. There are few more familiar examples of a proximate relationship. Every fact required to establish the tort of negligence in the ordinary driver and passenger case appears and, in addition, the fact that the plaintiff suffered his injuries in the course of an unlawful use of the motor vehicle in which he was participating. If, in this case, the relationship is to be held not to give rise to a duty of care, it must be on account of some consideration which can, and should, be identified. One may say that that consideration denies to the relationship of driver and passenger the character of proximity and that accordingly no duty of care arises. Or one may say directly that that consideration precludes a duty of care from arising. Whether the proposition be put in one way or the other, "proximity" is surplus to the reasoning. But what is impermissible, in my respectful view, is to employ "proximity" in some extended but undefined sense as the reason why a duty of care, prima facie arising on facts which establish reasonable foreseeability, should be denied. Better to identify the consideration which negates the duty of care than simply to assert an absence of proximity.

11. Uncertainty of content was recognized as a defect in Lord Wilberforce's "second stage" of the test of liability which he expressed in a notable passage in his speech in Anns v. Merton London Borough Council (1978) AC 728, at pp 751-752. It will be remembered that Lord Wilberforce's first stage was "proximity or neighbourhood such that, in the reasonable contemplation of the (defendant), carelessness on his part may be likely to cause damage to the (plaintiff)" - a stage which, at least on one view, focusses on foreseeability. The relevant part of the second stage was "whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty". To use the extended notion of proximity as the limiting consideration to determine whether a duty of care arises on facts establishing reasonable foreseeability seems to me, with respect, to reintroduce the approach of Lord Wilberforce which was rejected by this Court in Sutherland Shire Council v. Heyman and by the House of Lords in Murphy v. Brentwood District Council (1990) 3 WLR 414. In my respectful opinion, this Court should not propound as a criterion an extended notion of proximity which would reintroduce the formlessness of Lord Wilberforce's second stage test into the law of negligence where development is needed.

12. By rejecting the extended notion of proximity as a criterion for ascertaining the existence of a duty of care, I should not be taken to reject the desirability of developing the law of negligence. The purpose of judicial development of legal principle is to keep the law in good repair as an instrument of resolving disputes according to justice as it is understood in contemporary society, subject to statute. The law must keep an order and form which admit of practical application, for justice requires both consistency in decisions and discrimination between cases on bases that can be articulated and applied. Principles of law must be adequate to resolve disputes that arise in contemporary society and, so far as practicable, they must be sufficiently precise to be applied without reference to a court. The purpose of judicial development of legal principle is not to espouse a broad theory which, unembarrassed by precise content, can be postulated as an explanation of diverse cases. Were such a theory to be propounded as a legal principle, each judge would be free to give it such content as he or she chooses and the law would become an invitation to litigate, not an instrument of dispute resolution. In a society where values change and where the relationships affected by law become increasingly complex, judicial development of the law is a duty of the courts - more especially when legislative law reform languishes. But the technique of development will be inadequate if, at the end of the day, a legal principle is crafted in words which do not reflect the degree of precision of which the subject matter admits so that the principle is left to derive its content from actual decisions in a multitude of cases. The law is not developed by making working principles obsolete without providing other working principles in substitution.

13. In this case, if it were not for the joint criminal activity of the four young men who were unlawfully using the vehicle, there would be no doubt but that the first defendant as driver owed a duty of care to the plaintiff as passenger. If it were not for that joint criminal activity, no factors other than reasonable foreseeability would have been material to the ascertainment of a duty of care. Thus, in the Full Court, where their Honours took the view that the initial taking of the car had receded into history and was not material to the assessment of the standard of care which the driver was bound to exercise in controlling the vehicle, the first defendant was held to owe the ordinary duty of care to the plaintiff. The factor which calls for consideration is simply the illegal use of the vehicle at the time of the accident and the joint participation of the plaintiff and the first defendant in that use.

14. If this factor be fatal to the plaintiff's remedy in damages, the plaintiff's lack of remedy may flow from an absence of a duty of care or from some principle, over and above the law of negligence, which operates to preclude the court from granting a remedy on an acknowledged cause of action. It can be taken as settled that, when a plaintiff lacks a remedy in cases of the present kind, the law has denied the existence of a duty of care: Smith v. Jenkins, at pp 400, 403, 419, 425; Progress and Properties Ltd. v. Craft, at pp 656, 668; Jackson v. Harrison, at pp 443, 457. That being so, the effect of the relevant legal principle, when it applies, must be that a defendant, even though he can reasonably foresee the possibility that a plaintiff will suffer damage, does not owe the plaintiff who is his joint participant in the commission of an offence a duty of care in the doing of the act which causes the plaintiff's damage or in the making of an omission which would be held to cause the plaintiff's damage were it not for his participation with the defendant in the commission of the offence.

15. The critical question, of course, is: what is the legal principle which sterilizes a duty of care that would arise on the facts were it not for the joint participation in the commission of an offence? Leaving aside the notion of proximity in the extended sense, the approaches taken in this Court in past cases can be subsumed under one or other of three headings: illegal acts, statutory intent and refusal to hear evidence.
Illegal acts

16. Smith v. Jenkins was a case of joint unlawful use of a motor vehicle by a plaintiff passenger and a defendant driver in which the injured plaintiff failed to establish a duty of care in respect of the defendant's driving of the vehicle. As I read the judgments of Barwick C.J., Windeyer and Owen JJ., their Honours agreed upon the principle "that the joint participation in the commission of the offence in that case precluded either of the participants from recovering from the other damages for injuries received in the performance of the offence". That statement of principle, extracted from the judgment of Barwick C.J. in Jackson v. Harrison, at p 442, appears to be supported by the judgments in Smith v. Jenkins delivered by Barwick C.J. (at p 400), Windeyer J. (at pp 421-422), Owen J. (at p 425) and, perhaps, by Kitto J. (at p 403). Although Mason J. in Jackson v. Harrison (at p 453) asserted that Smith v. Jenkins did not decide "that the participants in a joint illegal enterprise owe no duty of care to each other", that was not precisely the proposition which Barwick C.J. sought to advance in Jackson v. Harrison. The proposition was limited, as it had to be, to the absence of a duty of care with respect to the conduct which caused the damage in suit, being conduct "in the performance of the offence" or, to use the language of Windeyer J., "in the actual performance of the criminal act". So limited, I read the effect of the judgments in Smith v. Jenkins in the way in which Barwick C.J. stated it.

17. Barwick C.J., in dissent, adhered to this principle in Progress and Properties Ltd. v. Craft (see p 656) and in Jackson v. Harrison (where, however, his Honour related the principle to an act "in some way connected with the commission of the offence": p 446). In the latter case, his Honour held the principle to apply when the offence is created by regulation as well as by Act of Parliament and to offences created by industrial safety laws (at pp 444-448, 450) though he had recognized in Progress and Properties Ltd. v. Craft (at p 658) that the application of the principle to offences created for the protection of workmen "presents features of harshness which are not readily acceptable in the present-day world". Significantly, in Jackson v. Harrison (at pp 451-452) his Honour allowed that "it must be conceded that there are offences to which the principle does not apply" but no verbal formula could be devised to exclude any offence punishable by fine or imprisonment. In Smith v. Jenkins Windeyer J. found that the criteria advanced in argument were unsatisfactory to distinguish between "criminality in its stricter and more limited sense" and other criminality (at pp 423-424). And Walsh J. held the view (at p 427) that there is no "single rule by which, in all cases, the question raised by a plaintiff's commission of an illegal act, or his participation in it, is to be answered."

18. In Smith v. Jenkins, the Court advanced no qualification to the principle therein stated. Given the unqualified form in which that principle was stated, its application by Barwick C.J. in the later cases is, to my mind, logically compelling and I am unable to see logical grounds for distinguishing Progress and Properties v. Craft and Jackson v. Harrison from Smith v. Jenkins. However that may be, as an unqualified application of the principle in Smith v. Jenkins would deny a remedy even when the offence is of minimal importance, the principle has attracted the criticism levelled against it by Mason J. in Jackson v. Harrison (at pp 453, 455) that it is "too Draconian to command acceptance".
Statutory intent

19. In Henwood v. Municipal Tramways Trust (S.A.), where a passenger, being sick and leaning out of a tram, was killed by striking his head on posts which were too close to the tram, his parents recovered damages against the tramway authority despite the deceased's breach of a by-law forbidding leaning out of a tram. Dixon and McTiernan JJ. (at pp 464-465) construed the by-law as imposing a penalty but not as intending to affect the liability of the authority arising from the propinquity of the posts to the tram track and the lack of suitable guard rails on the tram. Although in Jackson v. Harrison Mason J. (at p 452) thought that the principle of Smith v. Jenkins as enunciated by Barwick C.J. was "at variance with the philosophy underlying Henwood v. Municipal Tramways Trust (S.A.)", the two cases were, as Barwick C.J. was surely right to point out (at pp 446-447), "in a different field of discourse". In Henwood v. Municipal Tramways Trust (S.A.), the defendant was under an acknowledged duty of care to its passengers and the question was simply whether a breach of the by-law by the deceased which was a contributing cause of his death denied the remedy to which the plaintiffs were otherwise entitled by reason of the defendant's conduct; in Smith v. Jenkins, the question was whether a duty of care is owed in respect of conduct in which the plaintiff was a criminal participant. In the former class of case, what is relevant is the intent of the statute to deny a civil remedy in damages for which the defendant is liable by reason of his conduct; in the latter, what is relevant to the existence of a duty of care is the set of circumstances (including the conduct of the respective parties) out of which the alleged duty is said to arise. A statute creating an offence could conceivably provide that a plaintiff injured in the course of a joint commission of the offence by the carelessness of his co-offender should or should not have a remedy in damages, but the legislature does not usually turn its mind to the civil claims of co-offenders inter se. It is difficult to see how an intent of that kind could properly be imputed to a statute which simply creates an offence or defines the parties to an offence.

20. Although statutory intent offers no satisfactory basis for resolving civil claims between co-offenders arising out of carelessness in the commission of offences, the harshness of an undiscriminating application of the principle in Smith v. Jenkins needs to be relieved. It is desirable, if possible, to postulate a ground of distinction between criminal conduct in respect of which no duty of care between co-offenders can arise and criminal conduct in respect of which a duty of care between co-offenders can arise. The judgments of the majorities in Progress and Properties v. Craft and Jackson v. Harrison sought to make such a distinction but, as we shall see, the basis of the distinction was not identified.
Refusal to hear evidence

21. In Bondarenko v. Sommers (1968) 69 SR(NSW) 269, Jacobs J.A, then sitting in the Court of Appeal of New South Wales, pointed out (at p 276) that -
"it is often the criminal relationship between the plaintiff
and the defendant which is the starting point in the inquiry whether the crime bars the plaintiff from recovery for the defendant's breach of duty of care." Holding that there must be a relation between the criminal act and the act of negligence complained of, his Honour said (at p 275):

"If, to use the language of Latham C.J. in Henwood's case, the person injured by want of care is a burglar on his way to a professional engagement, the fact that he is a burglar has no relation causally or otherwise to the injury to him in a motor accident on the highway. On the other hand, if the burglar in the act of breaking in is so negligent that he injures his accomplice, the accomplice cannot in my view sue for negligence, because the actual act of which he would be complaining as done without care would itself be a criminal act of a kind in respect of which a court would not hear evidence for the purpose of establishing the particular standard of care which would be expected in the circumstances."

22. In Progress and Properties Ltd. v. Craft, his Honour, sitting in this Court and speaking for the majority, said (at p 668): "A joint illegal activity may absolve the one party from the
duty towards the other to perform the activity with care for the safety of that other. That, it seems to me, is the effect of Smith v. Jenkins. Where there is a joint illegal activity the actual act of which the plaintiff in a civil action may be complaining as done without care may itself be a criminal act of a kind in respect of which a court is not prepared to hear evidence for the purpose of establishing the standard of care which was reasonable in the circumstances. A court will not hear evidence nor will it determine a standard of care owing by a safe blower to his accomplice in respect of the explosive device." And in Jackson v. Harrison, his Honour (with the concurrence of Aickin J.) adhered to what he had said in the earlier cases. He said (at pp 457-458):

"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? That the burglar alarm had already sounded? That the police were known to be on their way? That by reason of the furtive occasion itself a speed of action was required which made it inappropriate to apply to the defendant a standard of care which in lawful circumstances would be appropriate? The courts will not engage in this invidious inquiry. The reason is no doubt based on public policy. If, then, no standard of care can legally be determined, it cannot be said that there is any duty of care."

His Honour added, in accordance with Henwood's Case as he saw it, that, if the purpose of the law creating a statutory offence is not expressed to disentitle a person doing the prohibited act from complaining of the other party's neglect or default, that purpose can be inferred "by taking account of the same factors as I have described in respect of the relation between the illegal activity and the act of negligence complained of": at p 459.

23. In Jackson v. Harrison (at p 456) Mason J. considered the law to have been stated correctly by Jacobs J. in Progress and Properties Ltd. v. Craft, though Mason J.'s formulation of the relevant principle was not identical with the formulation by Jacobs J.:
"A plaintiff will fail when the joint illegal enterprise in
which he and the defendant are engaged is such that the court cannot determine the particular standard of care to be observed." (Emphasis added.) This criterion, in his Honour's view, mitigated the harshness of the Smith v. Jenkins principle. He said (at pp 455-456):

"If a joint participant in an illegal enterprise is to be denied relief against a co-participant for injury sustained in that enterprise, the denial of relief should be related not to the illegal character of the activity but rather to the character and incidents of the enterprise and to the hazards which are necessarily inherent in its execution. 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. But the driving of a motor vehicle by an unlicensed and disqualified driver, so long as it does not entail an agreement to drive the car recklessly on the highway (see Bondarenko v. Sommers), stands in a somewhat different position."

36. Smith v. Jenkins remains as a statement of the unwillingness of the law to lend its support to the recovery of damages by a plaintiff who suffers injury while participating with the defendant in the commission of a serious criminal act, when that act is the act relied upon to found a cause of action. In those circumstances, a duty of care is held not to exist, not because of the difficulty of defining a standard of care but because of the participation by the parties in the criminal activity which resulted in the injury. Smith v. Jenkins is sound law and should not be overruled. It cannot be distinguished on the facts of the present case; those facts involve a serious criminal act from which the claim arises. The appeal should be allowed.

Orders

Appeal allowed with costs.

Set aside the orders of the Full Court of the Supreme Court of Queensland and, in lieu thereof, order that the appeal to that Court be dismissed with costs.