Miller v Miller

Case [2011] HCA 9

HIGH COURT OF AUSTRALIA

FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

DANELLE EVELYN MILLER  APPELLANT

AND

MAURIN ASHTON MILLER  RESPONDENT

Miller v Miller [2011] HCA 9
7 April 2011
P25/2010

ORDER

1.        Appeal allowed with costs.

2.Set aside the orders of the Court of Appeal of the Supreme Court of Western Australia made on 6 November 2009 and, in their place, order that the appeal to that Court be dismissed with costs.

On appeal from the Supreme Court of Western Australia

Representation

B W Walker QC with J A Thomson for the appellant (instructed by Kott Gunning Lawyers)

G M Watson SC with N J Owens and R A Yezerski for the respondent (instructed by Tottle Partners)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Miller v Miller

Negligence – Duty of care – Illegality – Plaintiff and defendant illegally using stolen motor vehicle in contravention of s 371A of The Criminal Code (WA) ("Code") – Plaintiff twice asked defendant to be let out of vehicle – Requests not complied with – Whether plaintiff can recover damages for injuries sustained as result of defendant's negligent driving of vehicle – Whether defendant owed duty of care to plaintiff – Whether statutory purpose of s 371A of Code incongruous with duty of care between joint illegal users of vehicle – Whether plaintiff's requests sufficient to effect withdrawal from joint illegal enterprise – Whether reasonable steps available to plaintiff to prevent commission of offence.

Words and phrases – "duty of care", "illegal use", "joint illegal enterprise", "statutory purpose".

The Criminal Code (WA), ss 8, 371A.
Criminal Code Act Compilation Act 1913 (WA), Appendix B, s 5.

  1. FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ.   Early in the morning of 17 May 1998, the appellant (Danelle Miller – "Danelle"), then aged 16 years, wanted to go from Northbridge, a Perth suburb, to her home in Maddington, another Perth suburb.  She had been drinking, had tried unsuccessfully to enter a nightclub and was wandering in the streets with her sister and cousins.  The last train had left.  She did not have the money to pay for a taxi.  So she decided to steal a car.

  2. Having started a car in the car park near the nightclub, Danelle asked her older sister (Narelle) to drive her and her younger cousin (Hayley) home.  Danelle knew that Narelle had been drinking and did not hold a driver's licence.

  3. The respondent (Maurin Miller – "Maurin") was at a cab rank when he saw the car leaving the car park where it had been standing.  Maurin was a cousin of Danelle's mother.  He was aged 27 years.  He said to Narelle:  "I'm your uncle let me drive."  Narelle moved out of the driver's seat and he took the wheel.  Some of Maurin's friends who were waiting at the cab rank also got into the car.  Nine passengers jammed themselves into the…

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Details
AGLC
Miller v Miller [2011] HCA 9
Case
[2011] HCA 9
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning a plaintiff injured while a passenger in a stolen motor vehicle driven by the defendant. The plaintiff had twice requested to be let out of the vehicle, but these requests were not heeded. The central dispute revolved around whether the plaintiff could recover damages for negligence from the defendant, despite both parties being engaged in the illegal use of the stolen vehicle, which contravened section 371A of the Criminal Code (WA).

The legal issues before the Court were whether the defendant owed a duty of care to the plaintiff in these circumstances, whether the statutory purpose of the relevant criminal provision was incongruous with the existence of such a duty between joint illegal users, and whether the plaintiff's requests to exit the vehicle were sufficient to constitute a withdrawal from the joint illegal enterprise or if reasonable steps were available to prevent the commission of the offence. The Court also had to determine how the plaintiff's illegal conduct impacted their ability to recover damages for negligence.

The High Court reasoned that the illegality of a plaintiff's conduct does not automatically preclude recovery in negligence, nor is causation alone a sufficient criterion. The Court emphasised that the principles governing such situations are not found by simply observing the plaintiff's contravention of the criminal law or by invoking the maxim *ex turpi causa non oritur actio* without further explanation. Instead, the Court examined the statutory provisions, their purposes, and relevant case law, including *Henwood v Municipal Tramways Trust (SA)*, *Smith v Jenkins*, *Jackson v Harrison*, and *Gala v Preston*. The Court considered that the plaintiff's requests to leave the vehicle were significant in assessing their continued participation in the joint illegal enterprise.

The appeal was allowed, and the orders of the Court of Appeal of the Supreme Court of Western Australia were set aside. The Court of Appeal's order dismissing the appeal to that Court was reinstated, meaning the plaintiff's claim was ultimately dismissed.

Orders

Orders of the court

1. Appeal allowed with costs.

2. Set aside the orders of the Court of Appeal of the Supreme Court of Western Australia made on 6 November 2009 and, in their place, order that the appeal to that Court be dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ HEYDON J
Sufficient has been said, for present purposes, about Henwood. More must be said about the other three cases. Each of them (Smith v Jenkins, Jackson v Harrison and Gala v Preston) arose out of an action for damages for personal injury suffered by a person complicit in an offence committed by the driver. What is said in those cases, especially in Smith v Jenkins and Jackson v Harrison, must be understood against a background provided not just by the decision in Henwood, but also by the course of decisions in State courts after Henwood.Decisions of State courts In Christiansen v Gilday[50], the Full Court of the Supreme Court of New South Wales considered a case in which the master of a trawler sued the owner for damages for personal injury suffered at sea when the master fell against the moving parts of an inadequately guarded winch. Under the Navigation Act 1901 (NSW) it was a misdemeanour for the owner to send a ship to sea, and for the master knowingly to take it to sea, in a state so unseaworthy as to be likely to endanger life. The defects in the winch were of that kind and both the plaintiff as master, and the defendant as owner, were found to have contravened the Navigation Act.[50](1948) 48 SR (NSW) 352. The Full Court held that the plaintiff could not recover damages. Jordan CJ agreed[51] with the conclusion of the trial judge that the plaintiff could not "recover damages for injuries sustained by him in the course of his doing an act which was not only illegal but criminal". The analysis of Street J was to substantially similar effect. By contrast, Davidson J referred to Henwood and looked[52] to the objects of the Navigation Act. Davidson J concluded[53] that the Act was not directed to saving employees or others from their own acts, or to protecting the owner or master against liability to actions by the crew. On the contrary, Davidson J continued[54], the object of the Act was "to impose rigid obligations, including criminal consequences, upon the owner and the master for the protection of everyone using the ship at sea". Accordingly, his Honour held that the master could not recover from the owner.[51](1948) 48 SR (NSW) 352 at 355.[52](1948) 48 SR (NSW) 352 at 356.[53](1948) 48 SR (NSW) 352 at 356.[54](1948) 48 SR (NSW) 352 at 356. In 1952, Smith J of the Supreme Court of Victoria had decided, in Williams v McEwan[55], that a plaintiff's complicity in the illegal use of a motor car was not a bar to his recovery in an action for damages for negligence. The decision turned on the law of the place where the accident occurred – New South Wales. A New South Wales statute provided[56] that nothing in the Act (which, among other things, proscribed[57] the illegal use of a motor vehicle) "shall affect any liability of any person by virtue of any statute or at common law". The decision did not turn on the application of any common law principle about illegality.[55][1952] VLR 507.[56]Motor Traffic Act 1909 (NSW), s 17.[57]Motor Traffic Act 1909, s 8A.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ, HEYDON J

To explain why Danelle's requests to get out of the car are important to the resolution of the issues in this matter, it is necessary to examine how the fact that a plaintiff has engaged in illegal conduct in the course of, or in connection with, events said to give rise to liability in negligence bears upon the liability of the defendant to the plaintiff. The examination of the significance that is to be attached to illegality of the kind described will take the following course. First, reference will be made to some preliminary considerations. Second, illegality in tort will be placed in the larger context provided by looking at the significance that has been attached to illegality in the law of contract and trusts. Third, reference will be made to some of the cases that have considered the issue. Fourth, the relevant principles will be identified. Fifth, consideration will be given to the statutory provisions that were engaged in this matter, some reference made to their legislative history, and their purposes identified. Sixth, the principles will be applied to the facts of this case.Preliminary considerations It is convenient to begin examination of the issues in the case by making two preliminary points: first, the illegality of a plaintiff's conduct presents the question, but does not provide the answer to, whether the plaintiff can recover damages for negligence for injury suffered in the course of or as a result of that illegal conduct; and second, causation alone does not provide a satisfactory principle by which to resolve the issue, and was rejected as a determinative criterion by this Court in Henwood v Municipal Tramways Trust (SA)[4].[4](1938) 60 CLR 438; [1938] HCA 35. Over the last century, both in Australia and in other common law jurisdictions, courts have offered different statements of the principle or principles that govern whether and how the fact that a plaintiff acted illegally in the course of, or in connection with, events said to give rise to liability in negligence bears upon the liability of the defendant to the plaintiff. Academic commentators have offered not only different criticisms of those principles, but also several different alternative formulations of the principles. One point that emerges with complete clarity from the cases and the commentary is that the relevant principles are not identified by stopping the inquiry at the point of observing that a plaintiff has contravened the criminal law in the course of the events that the plaintiff alleges render the defendant liable to the plaintiff in tort. Nor are the principles identified by asserting, without further explanation, that public policy "requires" that such a plaintiff have no claim. Likewise the principles are not identified by simply intoning the Latin maxim ex turpi causa non oritur actio. As Windeyer J demonstrated, in Smith v Jenkins[5], it is greatly to be doubted that the maxim, properly understood, has any application in tort. Its intrusion into the debate "has caused a confusion which would not have occurred if the writers had condescended to translation and had not taken the maxim into territory where it does not belong"[6]. In any event, reference to the maxim does not reveal the reasoning that leads to the conclusion that liability is denied. The maxim "notwithstanding the dignity of a learned language, is, like most maxims, lacking in precise definition"[7].[5](1970) 119 CLR 397 at 409‑414; [1970] HCA 2; see also Gollan v Nugent (1988) 166 CLR 18 at 28, 46; [1988] HCA 59.[6]Smith v Jenkins (1970) 119 CLR 397 at 410.[7]Beresford v Royal Insurance Co Ltd [1937] 2 KB 197 at 219‑220 per Lord Wright MR.