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…
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.
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Details
AGLC
Gala v Preston [1991] HCA 18
Case
[1991] HCA 18
Decision Date
CaseChat Overview and Summary
Gala v Preston concerned a claim for damages for personal injury arising from a motor vehicle accident. The plaintiff, Mr. Gala, was a passenger in a vehicle driven by the defendant, Mr. Preston, when the vehicle left the road and crashed. Mr. Gala alleged that Mr. Preston's negligent driving caused his injuries. The High Court of Australia considered the appeal from the Supreme Court of Queensland.
The central legal issue before the High Court was whether the plaintiff's participation as a passenger in a vehicle driven by a driver who was intoxicated and driving at excessive speed constituted a defence to the claim for damages for negligence. Specifically, the court had to determine the extent to which the plaintiff's knowledge of and acquiescence in the driver's dangerous conduct might disentitle him from recovering damages.
The High Court held that the plaintiff's claim was not barred by his knowledge of the driver's intoxication and excessive speed. The court reasoned that while the plaintiff's conduct might be relevant to contributory negligence, it did not, as a matter of law, extinguish the defendant's duty of care or the plaintiff's right to sue for breach of that duty. The principles of contributory negligence, which involve assessing the plaintiff's own failure to take reasonable care for their safety, were to be applied rather than a rule that would automatically deny recovery in such circumstances. The court affirmed that the defendant owed a duty of care to the plaintiff, irrespective of the plaintiff's awareness of the risks.
The High Court allowed the appeal, setting aside the judgment of the Supreme Court of Queensland and remitting the matter for a new trial on the issue of contributory negligence.