Miller v Miller - [2009] WASCA 199

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MILLER -v- MILLER [2009] WASCA 199

CORAM: McLURE JA
BUSS JA
NEWNES JA

HEARD: 17 JUNE 2009

DELIVERED : 6 NOVEMBER 2009

FILE NO/S: CACV 39 of 2008

BETWEEN: MAURIN ASHTON MILLER
Appellant
AND
DANELLE EVELYN MILLER
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :SCHOOMBEE DCJ
Citation  :MILLER -v- MILLER [2008] WADC 46
File No  :CIV 1370 of 2005

Catchwords:

Negligence - Respondent a passenger in stolen car - Respondent aware car had been stolen - Joint illegal enterprise - Respondent injured when car hit pole - Whether appellant driver owed duty of care to respondent - Relevant principles

Legislation:

Criminal Code (WA), s 371A

Result:

Appeal allowed

Category: A

Representation:

Counsel:

Appellant: Mr M H Zilko SC & Mr G P Bourhill
Respondent: Mr J G Staude

Solicitors:

Appellant: Lavan Legal
Respondent: Kott Gunning

Case(s) referred to in judgment(s):

Bondarenko v Sommers (1968) 69 SR (NSW) 269
Brown v Harding [2008] NSWCA 51
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 259 ALR 616
Cook v Cook [1986] HCA 73; (1986) 162 CLR 376
Fabre v Arenales (1992) 27 NSWLR 437
Gala v Preston [1991] HCA 18; (1991) 172 CLR 243
Godbolt v Fittock (1963) 63 SR (NSW) 617
Henwood v The Municipal Tramways Trust (SA) [1938] HCA 35; (1938) 60 CLR 438
Hill v Van Erp [1997] HCA 9; (1997) 188 CLR 159
Hillen v ICI (Alkali) Ltd [1934] 1 KB 455
Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510
Italiano v Barbaro (1993) 40 FCR 303
Jackson v Harrison [1978] HCA 17; (1978) 138 CLR 438
Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549
Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552
Kickett v State Government Insurance Commission (1997) 26 MVR 321
Miller v Miller [2008] WADC 46
Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180
Progress and Properties Ltd v Craft [1976] HCA 59; (1976) 135 CLR 651
Smith v Jenkins [1970] HCA 2; (1970) 119 CLR 397
Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562

McLURE JA: I have had the advantage of reading the reasons for decision of Buss and Newnes JJA. I agree with the orders they propose. I wish to make some short observations on the vexed (and in some quarters controversial) question of the basis for, and scope of, the defence of illegality in negligence insofar as it applies to a joint criminal enterprise. The High Court has considered this subject on a number of occasions including in Smith v Jenkins (1970) 119 CLR 397, Progress & Properties Ltd v Craft (1976) 135 CLR 651, Jackson v Harrison (1978) 138 CLR 438 and Gala v Preston (1991) 172 CLR 243. These cases are considered in detail in the reasons of Buss and Newnes JJA.
In those cases in which a plaintiff involved in a joint criminal enterprise failed in his negligence claim against his co‑offender, most members of the High Court concluded that the defendant did not owe the plaintiff a duty of care: Smith v Jenkins; Gala v Preston. Whether or not the plaintiff owed a duty of care was also the focus of attention in the cases where the plaintiff was successful: Progress & Properties; Jackson v Harrison.
However, differing views have been expressed in those cases as to the basis for denying the existence of a duty of care to a co‑offender in a joint criminal enterprise. The basis is important because it provides the necessary framework for determining when, and in what circumstances, a duty of care will not exist. The basis identified in the majority judgment of Mason CJ, Deane, Gaudron and McHugh JJ in Gala v Preston, which is traceable back to Progress & Properties, has the greatest judicial support. The majority in Gala v Preston, applying the test of proximity, concluded that the driver of the stolen vehicle in which the parties were travelling did not owe his co‑offender a duty of care. Central to that conclusion was the further finding that it was not possible or feasible for the court to determine an appropriate standard of care. In reaching this conclusion, the majority relied on Cook v Cook (1986) 162 CLR 376, in which the notion of a variable standard of care was approved. In Cook v Cook, the High Court had regard to the plaintiff's knowledge of the driver's lack of experience as a basis upon which to found a different standard of care. The majority in Gala v Preston also had regard to the plaintiff's knowledge, actual and constructive, of all the surrounding circumstances to conclude that the participants could not have had any reasonable basis for expecting that a driver of the vehicle would drive according to the ordinary standards of competence and care. The ordinary standard being inapplicable, the majority held there was no duty because, having regard to the relationship between the illegality and the negligence, it was not possible or feasible for a court to determine what was an appropriate standard of care to be expected of the driver of the vehicle in that case.
Proximity is no longer seen as the unifying or determining criterion of a duty of care: Hill v Van Erp (1997) 188 CLR 159; Perre v Apand Pty Ltd (1999) 198 CLR 180; Imbree v McNeilly (2008) 236 CLR 510 [46]. The reliance on proximity in the majority judgment in Gala v Preston is not itself a sufficient basis for rejecting the conclusion that there was no duty of care. The other judges (Brennan, Dawson & Toohey JJ) reached the same conclusion.
The same may be said for the majority's reliance on Cook v Cook which was overruled in Imbree v McNeilly. The court in Cook v Cook relied on the plaintiff's knowledge of the inexperience of the defendant motor vehicle driver for applying a different standard of care. On that subject, the High Court in Imbree McNeilly said:
To reject knowledge of inexperience as a sufficient basis upon which to found a different standard of care is to reject the only basis, other than proximity, for the decision in Cook v Cook. Yet rejection of knowledge as a basis for applying a different standard of care is required not only by the observation that knowledge of inexperience is held not to affect the standard of care owed to other passengers … but also by the essential requirement that the standard of care be objective and impersonal [55]. (emphasis added)
The majority judgment in Gala v Preston appears to be inconsistent with the law as restated by the High Court in Imbree v McNeilly in a way that undermines their reasoning on the existence of a duty. It is unclear whether their penultimate finding (no reasonable basis for expecting that the driver would drive according to ordinary standards of care) is directly relevant to the existence of a duty.
Moreover, there is no common basis in the reasons of the other judges in Gala v Preston for the conclusion that the driver did not owe his co‑offender a duty of care. Brennan J found that no duty of care was owed because the normative influence of s 408A of the Criminal Code (Qld) would be destroyed if a duty of care was admitted. The reasoning of Dawson J was in some measure dependent upon the acceptance of the possibility of a variable standard of care. Toohey J concluded that Smith v Jenkins, which has not been overruled, could not be distinguished on the facts. He said:

Essentially, Smith v Jenkins turns on the unwillingness of courts to find … a duty in circumstances where, although there is a relationship between the parties which ordinarily would give rise to a duty of care, the injury to the plaintiff arises from a serious criminal act in which both the plaintiff and the defendant participated …
It gives effect to the view, seen as reflecting prevailing community standards, that a person who is injured while participating in conduct which has been identified by the criminal law as inimical to society should not be entitled to the compensation that the civil law ordinarily provides (291).

Whatever be the correct approach from among those identified by members of the High Court, the result in this case would be the same. That includes the variable standard of care approach, for the reasons given by Buss and Newnes JJA. The material facts of this case are not, in my assessment, distinguishable from the material facts in Smith v Jenkins and Gala v Preston. That dictates the conclusion that the appellant did not owe the respondent a duty of care.
BUSS JA: On Sunday, 17 May 1998 at about 5.00 am, the respondent, who was a girl then aged 16 years, was a passenger in a Toyota Corona sedan motor vehicle being driven by the appellant, who was a man then aged 27 years.
The motor vehicle had been broken into and stolen by the respondent, her sister Narelle Miller, who was then aged 20 years, and her cousin Hayley Miller, who was then aged 13 years, earlier in the morning of 17 May 1998. They had taken the vehicle from a car park in Murray Street, Perth for the purpose of travelling to their home in Maddington.
The appellant and the respondent were related. The appellant was a cousin of the respondent's mother. The respondent regarded the appellant as her uncle.
The appellant was not involved in breaking into and stealing the motor vehicle. However, soon after these events occurred, the appellant approached the respondent, her sister and her cousin and insisted that he drive the vehicle. A number of other people then accompanied him into the vehicle as passengers. There were, in total, nine passengers in the vehicle while it was being driven by the appellant. The vehicle was licensed to carry only five occupants.
At all material times, the appellant was intoxicated. He did not have a driver's licence. Also, he knew the motor vehicle had been stolen.

During the journey from Perth to Maddington, and while he was driving at an excessive speed near Kenwick, the appellant applied the brakes and caused the vehicle to slide about 50 m before mounting a median strip and colliding with a metal pole. The respondent suffered serious injuries in the accident.
The appellant was charged and convicted on his pleas of guilty of dangerous driving causing death (one of the passengers died in the accident), dangerous driving causing grievous bodily harm, and driving under the influence of alcohol. A total head sentence of 5 years' imprisonment was imposed.

The commencement of proceedings in the District Court and the relevant pleaded issues

The respondent commenced proceedings in the District Court against the appellant. She claimed damages on the basis that her injuries had been caused by the appellant's negligence.
The appellant denied that he owed the respondent a duty of care in that 'as at the time of the accident both [the respondent] and [the appellant] were engaged in an illegal enterprise': par 6 of the defence. The appellant also pleaded, in substance, that if he owed the respondent a duty of care (which he denied) then the respondent had been guilty of contributory negligence in that she failed to wear a seat belt; she entered the motor vehicle when she knew or ought to have known that he was under the influence of intoxicating liquor; and she remained in the vehicle notwithstanding that it became 'excessively overloaded with occupants': par 7 of the defence. Further, the appellant pleaded, in substance, that if he owed the respondent a duty of care (which he denied) then, with full knowledge of the risk of injury to her by his conduct as pleaded in the statement of claim, the respondent 'voluntarily consented to accept such a risk and to waive any claim in respect of any injury or damage that may have occurred to her by reason of the conduct of the [appellant]': par 8 of the defence.
The respondent filed and served a reply. She pleaded, relevantly, in par 2:
As to paragraph 6 of the Defence the [respondent] expressly denies that she and the [appellant] were engaged in a joint illegal enterprise and says that:
(a)her actions in breaking into and starting the motor vehicle were not done in concert with the [appellant];
(b)the [appellant], having subsequently taken control of the motor vehicle and having invited other persons to travel in it, interrupted the [respondent's] actions in connection with the motor vehicle;
(c)the [appellant] refused the requests of the [respondent] to stop the vehicle and let her out, thereby rendering the [respondent] an unwilling passenger; and
(d)the [appellant], by reason of his familial relationship with the [respondent], and their respective ages, was in loco parentis and in that capacity owed a duty of care for the [respondent's] safety and well‑being.

The trial in the District Court

The District Court proceedings were tried before Schoombee DCJ.
At the trial, the parties, by agreement, confined the issues in dispute. The trial judge was required to decide only one aspect of the respondent's claim, namely, whether the appellant owed her a duty of care. The appellant maintained his defence of 'joint illegal enterprise', but abandoned his other pleaded defences, in particular, his denial that he had breached any duty of care found to exist and his allegation of voluntary assumption of risk. The parties agreed that if a duty of care did exist then the respondent's damages should be reduced by 50% for contributory negligence.
The alleged joint illegal enterprise involved unlawfully driving the motor vehicle, without the owner's consent, in contravention of s 371A(1) of the Criminal Code (WA). The appellant did not rely on other apparent breaches of statute or regulations for the purposes of this defence; for example, driving the vehicle with a number of occupants exceeding that for which it was licensed and driving the vehicle without a licence.
The trial judge rejected the defence of joint illegal enterprise and held that the appellant owed the respondent 'the usual duty of care that a driver owes a passenger' [116].

The trial judge's findings of fact and reasoning

On Saturday, 16 May 1998 at about 6.00 pm, the respondent and her sister, Narelle, went to the house where the appellant was staying and commenced drinking alcohol with the appellant and other family members including the respondent's older cousin, Cindy. After about an hour, the appellant, the respondent, Narelle and Cindy travelled by train to Northbridge, arriving at about 8.00 pm. They then wandered the streets, drank alcohol and eventually went to a nightclub in Murray Street, Perth. The respondent was refused entry to the nightclub because of her age. The respondent's companions entered the nightclub and amused themselves while she walked to the nearest train station with a view to returning home. However, the train service had ceased for the night. At the train station she met her younger cousin, Hayley. They returned to the nightclub and met the respondent's companions. The respondent had insufficient money to engage a taxi to return home. See [3] ‑ [4], [9].
After searching unsuccessfully for money in motor vehicles parked in the car park outside the nightclub, the respondent broke into the Toyota Corona sedan. She started the vehicle with its dipstick and asked Narelle to drive her and Hayley home. The respondent knew that Narelle did not have a driver's licence and that she had been drinking alcohol. See [4] ‑ [5], [9].
As the respondent, Narelle and Hayley were about to leave the car park in the motor vehicle, the appellant, who was waiting at a taxi stand nearby, walked to the vehicle and told Narelle, 'I'm your uncle let me drive'. Narelle moved from the driver's seat to the front passenger seat, and the respondent joined Hayley on the back seat. Some friends of the appellant, who had been waiting with him at the taxi stand, entered the vehicle. As I have mentioned, there were, in total, nine passengers in the vehicle. See [6], [9].
The respondent said in evidence at the trial that she had not previously travelled in a motor vehicle driven by the appellant (ts 16, 20), she assumed he did not have a driver's licence (ts 19, 22), and she could have left the vehicle (if she had wished to do so) after the appellant and his friends had entered it (ts 20).
The trial judge summarised the respondent's evidence as to 'her expectations' in relation to the intended journey from Perth to Maddington with the appellant as the driver:
The [respondent] gave evidence that she expected the [appellant] to drive her home safely and to look after her. She said that she had known the [appellant] for as long as she could remember and that she regarded him as her uncle. She had a good relationship with him, respected him and looked up to him, as he was older. She had seen him from time to time and he had taught her some 'Ninja' tricks as a child (flipping onto your feet from a horizontal position on your back). She had no reason to be concerned about any of his behaviour in the past. She had not previously driven with the [appellant] in a car and did not know whether he had a driver's licence or not. In cross-examination she admitted that she assumed that he did not have a driver's licence. She knew that he had been drinking but did not know how much [7].
Her Honour then described the appellant's driving of the motor vehicle from Murray Street to the scene of the accident:
The [appellant] initially drove sensibly through the city and over the Causeway leading out of the city. However, he then started speeding and drove through a couple of red lights. At that stage the [respondent] asked the [appellant] to slow down and on a later occasion she asked him to stop and let her and her sister out. However, the [appellant] told the [respondent] and her sister that they were 'alright' and should come with him to Kelmscott. When they got to Kenwick, the suburb prior to Maddington, the [appellant] slowed down and the [respondent] again asked to be let out of the car. The [appellant] laughed off the [respondent's] concerns and revved the car. The [respondent] said that the [appellant] was 'playing with our emotions' and a short time thereafter the car left the road and hit a pole [8].
The trial judge accepted the respondent's evidence [9]. Her Honour did not accept the appellant's evidence 'insofar as it [contradicted] that of [the respondent]' [10]. On appeal to this court, these credibility findings were not challenged.
The reasoning of her Honour which underpinned her conclusion that the appellant owed the respondent 'the usual duty of care that a driver owes a passenger' [116], was as follows:
(a)The relationship between the appellant and the respondent was not merely that of driver and passenger. The 27‑year‑old appellant said in evidence that he regarded himself as responsible for the respondent's care. The 16‑year‑old respondent 'respected and looked up to' the appellant because she regarded him as her uncle. She expected him to 'look after her' [77].
(b)The respondent said that the appellant initially drove sensibly through the city [79]. There was insufficient evidence that the respondent realised that the appellant's level of intoxication was of such a degree as to be incapable of having proper control of the motor vehicle [80].
(c)The relevant joint criminal activity, for the purpose of determining whether any duty of care existed, was 'the driving of a stolen vehicle' [83]. Her Honour added:
In this case the [respondent] joined in with the [appellant's] criminal activity as she allowed him to drive her home in a stolen car. In my view it is irrelevant to the assessment of the nature of the joint criminal activity that the [respondent] initiated the stealing of the car and started the car by way of a dipstick. The [respondent's] criminal activity that has to be kept in focus is that arising from the joint illegal activity and this was allowing the [appellant] to drive her home in a stolen car. The position would have been exactly the same if the [appellant] had initiated the stealing of the car.
There was no evidence that the parties embarked on a 'joy-ride' as this word is used in the context of the cases dealing with illegal joint enterprises and stolen vehicles. The word 'joy-ride' in that context appears to mean a trip undertaken for fun, without any fixed destination and with the purpose of making the most of the thrill of flaunting the law while driving a stolen car …
The passengers in the [appellant's] car appear to have been a group of people who knew each other, apart from Shanelle, but they did not set out together with the purpose of making the most of the thrill of driving a stolen car in open flaunt of the law. The [respondent] and the [appellant] had been drinking alcohol, but she certainly did not wish to partake in any exercise which involved the [appellant] openly flaunting the law by speeding or otherwise driving in a reckless manner. The [respondent] specifically distanced herself from any such conduct when she asked the [appellant] to slow down and to stop to let her and her sister out of the car. The [appellant] was also not driving aimlessly through the streets of Perth, but on the way to at least his house, if not that of the [respondent] [84] ‑ [86].
(d)It was unclear, on the evidence, whether the fact that the motor vehicle was stolen 'made any material contribution to the manner in which [the appellant] was driving' [91]. There was very little evidence that 'the criminal activity of driving a stolen car had a definitive connection with the circumstances from which the negligent driving arose, or … that the criminal activity constituted the whole context of the accident' [94].
(e)The activity of driving a stolen car is not, of its nature, fraught with serious risks [95].
(f)The respondent did not appreciate that she would encounter serious risks in travelling home with the appellant [96]. Her Honour explained:
Neither the [respondent], nor for that matter a reasonable hypothetical plaintiff, had any reason to appreciate that she would be encountering serious risks. There was no evidence that the [appellant] presented as too intoxicated to be driving safely and the mere fact that they were driving in a stolen car would not of itself have made the [respondent] concerned about any risk of the [appellant] driving recklessly. As I have indicated earlier, unless there is evidence which shows that the parties were about to embark on a joy-ride and to have some fun in flaunting the law, the mere fact that they are driving in a stolen vehicle does not mean that this would necessarily be associated with an encounter of a serious risk [98].
(g)The respondent had not driven with the appellant previously, but she expected him to drive her home safely. The respondent's assumption that the appellant did not have a driver's licence did not 'necessarily mean that she assumed that he would drive in a reckless manner and ignore the rules of the road' [108].
(h)The fact that the motor vehicle was stolen 'was not a factor from which certain risks arose which would have made it impossible or not feasible to determine an appropriate standard of care' [111]. The evidence did not indicate that the duty of care ordinarily owed by a driver of a motor vehicle to a passenger 'did not exist or should be attenuated' [114].

The grounds of appeal

The appellant appeals against the trial judge's decision on six grounds.
The grounds may be distilled to the assertion that her Honour erred in law in finding that the appellant owed the respondent 'the usual duty of care that a driver owes a passenger' [116], notwithstanding that, at the time of the accident, the appellant and the respondent were involved in a joint illegal enterprise, namely, the unlawful use of the motor vehicle in question, without the owner's consent.

Joint illegal enterprise: the relevant case law

The law relating to illegality, in the context of a claim in negligence for damages in respect of personal injuries, has been considered by the High Court on several occasions. I will examine these authorities and refer to some other decisions of significance.
Henwood v The Municipal Tramways Trust(SA) [1938] HCA 35; (1938) 60 CLR 438 involved unilateral illegality by the deceased, as distinct from a joint criminal enterprise. The parents of the deceased brought proceedings against the Municipal Tramways Trust of South Australia for damages under the Wrongs Act 1936 (SA) on account of the death of the deceased, who died as a result of an accident while travelling on one of the Trust's trams. The deceased became sick, left his seat, leaned out over a rail on the side of the tram and vomited. His head struck two steel standards in the middle of the street, and he died shortly afterwards. The deceased's action, in leaning out over the rail of the tram, breached a by‑law made by the Trust under s 74 of the Municipal Tramways Trust Act 1906 (SA). A penalty was payable for breach of the by‑law.
The High Court held that there is no general principle which denies to a person who is engaged in an unlawful act the protection of the general law imposing upon others duties of care for his or her safety. The deceased's breach of the by‑law did not disable his parents from recovering in respect of his death. Dixon and McTiernan JJ, in their joint reasons, emphasised that where the damage suffered by a plaintiff in a negligence action has been directly brought about by his or her unlawful act, it is essential to discern the purpose of the law in question:
We do not think that, in the absence of English authority requiring us to do so, we ought to adopt as part of the law of torts a general principle that, if the damage suffered by the plaintiff has been directly brought about by an act of his which is unlawful, he can never complain of a wrongful or negligent act or omission on the part of the defendant from which the damage otherwise flows as a reasonable and probable consequence. It appears to us that in every case the question must be whether 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 (460).
In Godbolt v Fittock (1963) 63 SR (NSW) 617, the appellant was injured when a motor vehicle driven by the respondent left the road and collided with a tree in the course of a journey undertaken for the purpose of stealing and disposing of certain cattle for their mutual profit. The appellant alleged that the accident was caused by the respondent's negligent driving and sued him for damages. The Court of Appeal of New South Wales dismissed the appellant's appeal from the trial judge's rejection of his claim.
Sugerman J (Brereton J agreeing) held that the appellant was precluded, on the grounds of public policy, from suing the respondent for damages in negligence. His Honour elaborated:
In my opinion, when co‑adventurers in a joint criminal venture of a nature comparable with that in question in the present appeal use a motor vehicle in the pursuit of their common purpose, damages are not recoverable by one, being a passenger, against another, being the driver, in respect of injuries suffered as a result of want of due care in driving on a journey which is directly connected with the execution of the criminal purpose. I use 'directly' in a relative rather than in any absolute, sense. The question is one of the sufficiency of the connection to require a conclusion that it would be contrary to public policy that damages should be awarded for the injury or that the injury had its origin in a turpis causa (624).
Sugerman J did not decide that the joint illegal enterprise precluded a duty of care from arising, but that the illegality operated to bar the appellant's claim. His Honour said that the question was 'not one of causation as between the specifically criminal ingredient in the circumstances and the injury, but one of public policy, operating in this instance in a disabling sense' (624). His Honour decided that the joint illegal enterprise between the appellant and the respondent had a wide connotation and included acts done in furtherance of the illegal purpose, namely, the transporting of the stolen cattle to market.
The act of driving in Godbolt was connected with the implementation of the criminal purpose, but was not itself a criminal act.
Smith v Jenkins [1970] HCA 2; (1970) 119 CLR 397 was the first occasion on which the High Court considered the principles to be applied where a plaintiff sues a defendant for damages for personal injuries caused by the alleged negligence of the defendant in driving a motor vehicle in the course of a joint illegal enterprise.
In Smith, both the respondent/plaintiff and the appellant/defendant were, at the material time, unlawfully using the motor vehicle in question, which was the property of another, contrary to s 81(2) of the Crimes Act 1958 (Vic). The appellant and the respondent had assaulted the owner of the vehicle and unlawfully taken it. Later, the respondent, who was a passenger in the vehicle, was injured as a result of the appellant's negligent driving of the vehicle. The High Court held that the respondent was not entitled to recover damages, but there were material differences in the reasoning of the members of the court.
Barwick CJ decided that the proper basis for dismissing the respondent's claim was the refusal of the law 'to erect a duty of care as between persons jointly participating in the performance of an act contrary to the provisions of a statute making their act a crime punishable by imprisonment' (400). His Honour preferred this basis to a refusal of the court, on the grounds of public policy, to lend its assistance to the recovery of damages for breach of a duty of care because of the criminally illegal nature of the act out of which the harm arose. His Honour said:
The duty of care, which is the prerequisite to success in an action of negligence to recover damages for personal injuries, is a duty which the law imposes upon a party by reason of his relationship to another in the circumstances of the case. No doubt considerations of public policy have their place in the decision in the particular case to impose or erect such a duty. But basically it is the relationship of the parties which gives rise to the duty. Here the respondent and the appellant, in my opinion, did not relevantly stand in the relationship of passenger and driver. Their relationship was that of joint participants in the very act, itself unlawful in the sense I have mentioned, out of which the mischief to the respondent arose. In my opinion, the law will not hold that a duty of care arose out of that relationship (400).
Barwick CJ added that he was in general agreement with such of Windeyer J's reasons as 'lead to the conclusion which I have endeavoured to express for myself' (400).
Kitto J based his decision on a general principle of law which he gleaned from the reasons of Scrutton LJ in Hillen v ICI (Alkali) Ltd [1934] 1 KB 455, namely, 'that persons who join in committing an illegal act which they know to be unlawful … or … which they must be presumed to know to be unlawful … have no legal rights inter se by reason of their respective participations in that act' (403).
Windeyer J said that 'whether an action for negligence can be brought by one criminal against another depends upon whether the alleged negligence was so related to their unlawful conduct that the tort can be said to arise out of the crime ‑ but only in a general sense, not in the special causal sense' (421). His Honour added:
The question is whether the harm arose from the manner in which the criminal act was done. That question is not one of cause and consequence which can be answered in the old jargon of scholastic logic. Rather it is one of connection and relationship and involvement. For that the modern jargon of remoteness and proximity is more useful. At one end of the scale are cases when the same facts constitute both a crime and the tort. This is not that case. At the other end of the scale are cases when the tort is not related except in point of time to the crime. This is not that case. Here the harm done was not remote from the carrying out of the illegal enterprise. It resulted from the careless manner in which the defendant carried out his part in it (421 ‑ 422).
Later in his reasons (424), Windeyer J expressed his agreement with these observations of Jacobs JA in Bondarenko v Sommers (1968) 69 SR (NSW) 269:
The illegal act complained of was the taking and using of a motor vehicle and it is the using of the motor vehicle which is complained of as having been done negligently. Thus the actual act complained of as done negligently is itself the criminal act in which both plaintiff and defendant were engaged (277).
Owen J concurred with Windeyer J that the appeal should be allowed and said he wished only to make 'a few observations' which seemed to him to re‑enforce Windeyer J's conclusion. Owen J thought that a person who is engaged with another in committing a crime (in the case before the High Court, that of illegally taking and using a motor vehicle) is not entitled to sue the other if he or she acts carelessly in performing his or her part of the criminal enterprise and, as a result, causes injury to the co‑venturer. The reason given by his Honour for this conclusion was that 'the law does not recognise the relationship between two criminals who are jointly engaged in carrying out a criminal venture as being one which gives rise to a duty of care owed by the one to the other in the execution of the crime' (425).
According to Walsh J, the relationship in which the appellant and the respondent placed themselves was not one to which the law attaches a right of action for negligence (433). The refusal to recognise that right may be regarded, his Honour stated, as an application, in a particular situation, of 'the concept of public policy' (433 ‑ 434). As Walsh J pointed out, the act of driving in Smith was itself a criminal act. By contrast, the act of driving in Godbolt was merely connected with the execution of a criminal purpose (432 ‑ 433).
The next two decisions of the High Court which require attention are Progress & Properties Ltd v Craft [1976] HCA 59; (1976) 135 CLR 651 and Jackson v Harrison [1978] HCA 17; (1978) 138 CLR 438.
In Progress & Properties, a workman on a building which was under construction was injured when a goods hoist in which he was being carried fell to the ground. The workman brought proceedings against his employer alleging negligence and breaches of statutory duty. The employer pleaded, relevantly, illegality. The alleged illegality was that the workman's injuries were suffered by him in the course of, and in consequence of, his participation in a joint illegal venture, namely, his riding in a hoist not designed or constructed for the purpose of raising or lowering people, in breach of reg 139 of regulations made under the Scaffolding and Lifts Act 1912 (NSW). By the regulation, it was an offence to ride in the hoist or permit a person to do so. A majority of the High Court (Stephen, Mason, Jacobs & Murphy JJ, Barwick CJ dissenting) held that the plea of illegality failed.
Jacobs J (Stephen, Mason & Murphy JJ agreeing) said that a plea of illegality in answer to a claim in negligence constitutes a denial that, in the circumstances, a duty of care was owed by the defendant to the plaintiff. His Honour expounded on the point (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 ((1970) 119 CLR 397).
Jacobs J distinguished Smith, as follows:
In the present case the illegal activity was the riding by the respondent on the hoist driven by the appellant's servant, Mr Facer, and the permitting and allowing of him so to ride. However, the relation of the illegality to the negligence complained of does not require an examination of any special aspect of the relationship between the participants which could affect the standard of care to be expected in the circumstances. 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. On this ground alone the plea of illegality fails.
Further, I do not think that the fact that the law declines to impose a duty of care towards a person engaged in a joint illegal enterprise in respect of that enterprise can be applied in a case where the illegality, if it be assumed to be so, is one which arises from the breach of specific statutory duties of care for the safety of one of the participants. The reason for the law declining to raise a duty of care towards a joint participant in an illegal enterprise in respect of the manner in which that enterprise may be carried out is wholly inapplicable to the circumstances of regulations designed to enforce a high specific duty to ensure the safety of that participant (668 ‑ 669).
Barwick CJ dissented on the basis that it could properly and relevantly be said that both the driver of the hoist and the injured workman were unlawfully using the hoist, and it was the manner of that use which was an effective cause of the workman's injuries. Indeed, according to his Honour, the mutual relationship of the driver and the injured workman in the use of the hoist was 'even closer than that of the two occupants of the car in Smith v Jenkins' (655).
In Jackson, the respondent/plaintiff was a passenger in a motor vehicle driven by the appellant/defendant. The respondent was injured as a result of the appellant's negligent driving. The appellant was, to the respondent's knowledge, disqualified from holding a driver's licence and in consequence was driving the vehicle in breach of s 91(5) of the Motor Vehicles Act 1959 (SA). The trial judge held that the respondent was a joint participant in the commission of the offence and, on that ground, decided that he was not entitled to recover damages for his injuries. The Full Court of the Supreme Court of South Australia allowed the respondent's appeal. The High Court, by a majority (Mason, Jacobs, Murphy & Aickin JJ, Barwick CJ dissenting) affirmed the Full Court's judgment.
Mason J said that the case was to be decided by reference to the principle enunciated and applied by Jacobs J (Stephen, Mason & Murphy JJ agreeing) in Progress & Properties (452). According to his Honour, it was wrong to assert that Smith decided that the participants in a joint illegal enterprise owed no duty to each other. The case was limited to its particular facts and the members of the court assigned a variety of reasons for arriving at the result (453 ‑ 454). His Honour said that the preferable basis for denying relief by one participant against another participant in an illegal enterprise, for injuries sustained in the course of the enterprise, was this:
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 (455 ‑ 456).
His Honour then reaffirmed the correctness of the law as stated by Jacobs J in Progress & Properties (456). Mason J held that the relevant illegality in Jackson did not bear on the standard of care reasonably to be expected of the driver of the motor vehicle.
Jacobs J (Aickin J agreeing) reiterated his statement of principle in Progress & Properties, and added:
I think that it is correct to base the defence upon a denial of a duty of care in the particular circumstances rather than upon a denial of remedy for a breach of the duty of care. 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.
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 (457).
His Honour distinguished Smith on its facts. He said that the joint criminal enterprise in Smith was 'a jaunt, an escapade, a joy‑ride even though of a most serious kind from the beginning to the end' (460). A standard of care could not be determined for such a course of criminal activity. His Honour doubted that the decision in Smith would have been the same if the accident had occurred 'days, weeks or months later when the circumstances of the taking of the vehicle had ceased to have any significant relationship to the manner in which the vehicle was being used' (460). Like Mason J, Jacobs J held that the relevant illegality in Jackson did not bear on the standard of care reasonably to be expected of the driver (461).
Murphy J was of the view that, apart from a controlling statute, the denial of recovery to a plaintiff injured in the course of participation in a joint illegal enterprise was a question of 'judicial policy' (464). Leaving aside questions of insurance, his Honour could see no reason why policy considerations should render 'the careless defendant immune from civil action because of illegality' (464). His Honour then proceeded to set out the policy considerations which, in his view, were important. Murphy J emphasised that the defence of illegality should be confined strictly (465). Where a plaintiff's illegality is statutory, recovery will be denied by reason of illegality only where denial is 'statutory policy' and not because the court, for reasons of policy, declines to adopt a standard or recognise a duty (466). His Honour concluded that although the illegality in Jackson (driving while disqualified) was a serious offence, the legislation creating the offence did not require recovery to be denied and the defendant to be exempted from liability (466).
Barwick CJ, dissenting, reviewed the reasons of the High Court in Smith. His Honour concluded that a clear majority of the court supported the proposition that the relationship of one participant to another in the commission of an offence is not such as to give rise to a duty of care as between themselves in relation to acts done in the commission of the offence (443). According to Barwick CJ, the court in Smith did not confine its decision to acts in the commission of the offence which were causally related to the injuries received (443 ‑ 444). The principle recognised by the court extended to acts done in the commission of the offence even though the immediate cause of the injuries was not part of the agreement to participate in the use of the motor vehicle, and was not itself an element in the illegality of that use (444).

The most recent pronouncement of the High Court on joint illegal enterprise as a defence to an action in negligence is Gala v Preston [1991] HCA 18; (1991) 172 CLR 243. The facts of the case bear some resemblance to Smith and Jackson.
The respondent/plaintiff was a passenger in a motor vehicle. He was injured when the vehicle, which was being driven by Michael Gala (one of the appellants/defendants), left the road and struck a tree. Earlier on the day in question, the respondent, Gala and two others had stolen the vehicle after having consumed large quantities of alcohol. When the accident occurred they were unlawfully using the vehicle contrary to s 408A of the Criminal Code (Qld). The respondent sued Gala and the owners of the vehicle for damages for negligence. The trial judge dismissed the action on the ground that the joint illegal enterprise in which the respondent and Gala were engaged precluded the determination of the appropriate duty of care owed by Gala to the respondent. The Full Court of the Supreme Court of Queensland allowed the respondent's appeal. The decision of the Full Court was reversed in the High Court. Although the High Court concluded that the respondent was not owed any duty of care, the reasoning of the court was materially different from that in Smith and Jackson.
Mason CJ, Deane, Gaudron and McHugh JJ, in their joint reasons, reviewed Smith, Progress & Properties and Jackson. They then said it was necessary to take account of developments affecting the concept of the duty of care since those cases 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 recognises 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 (252 ‑ 253).
Mason CJ, Deane, Gaudron and McHugh JJ observed that where, as in the case before them, the parties are involved in a joint criminal enterprise, those factors will include the appropriateness and feasibility of seeking to define the content of a relevant duty of care (253). The onus lies on the party who alleges that, as a result of special and exceptional circumstances, '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' (254). According to their Honours, in the case before them, it was necessary to examine the relationship between the respondent and Gala with a view to ascertaining whether there was 'a relationship of proximity such as to give rise to a relevant duty of care' by Gala to the respondent (254). They then held that the circumstances of the case before them could not 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.
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 (254 ‑ 255).
Each of the other members of the court in Gala (namely, Brennan, Dawson and Toohey JJ) wrote separate reasons for concluding, like Mason CJ, Deane, Gaudron and McHugh JJ, that the appeal should be allowed and the respondent's claim dismissed. Their reasoning differs materially as between each other and from the joint reasons.
Brennan J rejected the approach of Mason CJ, Deane, Gaudron and McHugh JJ, in using an extended notion of proximity to determine whether the facts in Gala brought the case within one of the categories in which the common law recognises the existence of a duty of care (259 ‑ 262). His Honour thought, at (263), it could be taken as settled that, when a plaintiff lacks a remedy in cases of the kind under discussion, the law denies the existence of a duty of care: Smith, 400, 403, 419, 425; Progress & Properties, 656, 668; Jackson, 443, 457. Brennan J noted that the legal principle which underlies the approach of the majorities in Progress & Properties and Jackson is not easy to discern (268) and that the unqualified principle in Smith is too draconian in its application (270). In short, his Honour was of the view that none of the approaches thus far adopted in the High Court is wholly satisfactory (270). His Honour formulated the following principle:
The principle that there is no duty of care where the admission of the duty would condone a breach of the criminal law is, regrettably but inevitably, one that calls for a classification of the laws creating offences according to the effect which admission of the duty would have on their normative influence. The principle cannot be expressed in a way which is self‑executing in the sense that there is no evaluation to be made. When the law creating the offence is of the class to which the principle applies, no duty of care arises between co-offenders in respect of conduct engaged in in the course of committing the offence or in attempting to commit the offence (or, it should be added, in being an accessory after the fact to the offence where being an accessory after the fact is an offence). If the normative effect of the criminal law is not to be impaired, the principle must extend to all conduct falling within these descriptions, not merely to conduct which in itself amounts to a complete element of an offence of the relevant kind (273).
His Honour applied this principle to the case before the court. He held that the normative influence of s 408A of the Criminal Code (Qld) would be destroyed by admitting a duty of care (273).
Dawson J said that the criminal nature of the activity engaged in by the respondent, Gala and the others, with its associated lack of responsibility for the safety of the motor vehicle in question, and the inevitable desire to avoid detection, meant that the participants in the venture could not be placed, as regards each other, in the position of ordinary, prudent users of the road (280). Any standard of care would require modification by reference to the criminal nature of the activity. This special element in the relationship of the participants 'remained present to affect that relationship during the entire period of the illegal use of the motor car' (280). According to Dawson J, in the circumstances, the law refuses to set a standard of care and, therefore, to erect a duty of care.
Toohey J allowed the appeal on the basis that the case was indistinguishable on the facts from Smith:
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 (292).
The joint reasons of the majority in Gala have been analysed and applied on numerous occasions by intermediate courts of appeal, most notably, by a Full Court of the Federal Court in Italiano v Barbaro (1993) 40 FCR 303 (Black CJ, Neaves, Burchett, Whitlam & Beazley JJ). See also Fabre v Arenales (1992) 27 NSWLR 437; Kickett v State Government Insurance Commission (1997) 26 MVR 321; Brown v Harding [2008] NSWCA 51.

Gala and the decline of proximity

As Gummow, Hayne and Kiefel JJ (Crennan J agreeing) noted in Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510, for some time, before and after the decision in Cook v Cook [1986] HCA 73; (1986) 162 CLR 376, proximity was accepted as 'the unifying criterion of duties of care' [40]. See Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549, 583 ‑ 584 (Deane J); Hill v Van Erp [1997] HCA 9; (1997) 188 CLR 159, 176 ‑ 177 (Dawson J), 210 (McHugh J), 237 ‑ 239 (Gummow J). However, by 1999, at the latest, the High Court had rejected proximity as a satisfactory device for deciding whether a defendant owed a duty of care [41]. See Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180. See also the recent analysis by Allsop P (Simpson J agreeing) in Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 259 ALR 616 [94] ‑ [108].
In Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562, Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ accepted that the notion of proximity 'gives little practical guidance in determining whether a duty of care exists in cases that are not analogous to cases in which a duty has been established' [48]. In particular
[i]t expresses the nature of what is in issue, and in that respect gives focus to the inquiry, but as an explanation of a process of reasoning leading to a conclusion its utility is limited [48].
It appears that although proximity has ceased to be a satisfactory device for determining whether a defendant owes a duty of care, it retains some relevance, in combination with numerous other factors, in identifying the existence of a new duty of care. See Caltex Refineries [101] ‑ [107].
Cook was overruled in Imbree.

Joint illegal enterprise: the relevant legal principles

In my opinion, the principles which govern the liability of the driver of a motor vehicle to a passenger in the vehicle who suffers injuries as a result of the driver's careless driving, in the course of a joint enterprise that involves unlawfully using the vehicle, without the owner's consent, contrary to s 371A(1) of the Criminal Code, are those enunciated in the joint reasons of Mason CJ, Deane, Gaudron and McHugh JJ in Gala, modified as necessary by the High Court's subsequent rejection of proximity as a satisfactory device for deciding whether a defendant owes a duty of care. These principles must be followed by this court until the High Court decides otherwise.
As Neaves, Burchett and Whitlam JJ observed in Italiano, the High Court in Gala did not purport to overrule any of its earlier decisions on the point in issue. Rather, the reasoning of Mason CJ, Deane, Gaudron and McHugh JJ 'superimposes upon [the earlier cases] an analysis utilising the concept of proximity, but without altering the conclusion that the relevant effect of joint criminal conduct is exerted upon the duty of care … and without altering the established categories for determining whether that effect will be fatal to an action in a particular case' (330). I respectfully agree with that observation.
In Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552, however, McHugh J expressed the view that, as a result of the High Court's rejection of the doctrine of proximity, 'it may be that' the High Court would no longer follow the reasoning in Gala [30]. His Honour added that while Gala stands, it is authority for the proposition that, 'in special and exceptional circumstances, it would be unreasonable to fix the standard of care owed by the driver by reference to the ordinary standard of care owed by a driver to a passenger' [30].
The relevant principles, for the purposes of this appeal, are as follows.
First, ordinarily a driver of a motor vehicle owes a duty of care to his or her passenger.
Secondly, special and exceptional circumstances may transform the ordinary relationship between a driver and his or her passenger, and preclude a duty of care from arising.
Thirdly, special and exceptional circumstances may include a joint enterprise between the driver/defendant and the passenger/plaintiff that involves unlawfully using the vehicle without the owner's consent and that culminates in the passenger/plaintiff suffering injuries, in the course of the enterprise, as a result of the driver/defendant's careless driving.
Fourthly, the onus lies on the driver/defendant to prove that, by reason of special and exceptional circumstances, a duty of care does not arise.
Fifthly, the court must examine the relationship between the driver/defendant and the passenger/plaintiff for the purpose of deciding whether it would be appropriate and feasible to determine a standard of care to be expected of the driver/defendant.

The merits of the appeal

At the material time, s 371A(1) of the Criminal Code provided:
A person who unlawfully ‑
(a)uses a motor vehicle; or
(b)takes a motor vehicle for the purposes of using it; or
(c)drives or otherwise assumes control of a motor vehicle,
without the consent of the owner or the person in charge of that motor vehicle, is said to steal that motor vehicle.
At the material time, by s 378, relevantly, any person who steals anything capable of being stolen is guilty of a crime, and is liable to imprisonment for 7 years.
In my opinion, when the appellant and the respondent commenced the journey from Perth to Maddington, there were special and exceptional facts and circumstances which precluded a duty of care from arising.
The critical facts and circumstances were these:
(a)The appellant and the respondent were engaged in a joint criminal enterprise which involved unlawfully using the motor vehicle in question which the respondent, to the knowledge of the appellant, had broken into and taken, without the owner's consent, for the purpose of making the journey.
(b)The enterprise was criminal because its performance involved a contravention of s 371A(1). The offence against s 371A(1) was serious. It carried a maximum penalty of 7 years' imprisonment. The offence did not merely involve, for example, the breach of a provision designed to promote safety.
(c)The enterprise was joint because the appellant and the respondent were parties to the commission of the offence. Further, each of them expressly or impliedly agreed to make the journey in the vehicle with the knowledge that the respondent had broken into and taken the vehicle without the owner's consent.
(d)The respondent's age and the nature of her relationship with the appellant were not inconsistent with the formation of, and her responsibility for, the joint criminal enterprise. She had attained the age of criminal responsibility, and she was not acting under duress.
(e)The respondent could have left the vehicle (if she had wanted to) when the appellant and his friends got into it.
(f)The appellant had, to the respondent's knowledge, consumed some alcohol, although, on the trial judge's findings, she was unaware of the level of his intoxication. She could not, however, have been satisfied that his ability to control the vehicle and drive it sensibly had not been compromised by his drinking.
(g)The respondent assumed, accurately, that the appellant did not have a driver's licence.
(h)The appellant and the respondent knew that the vehicle was grossly overloaded with occupants.
In my opinion, at the commencement of the journey there were significant and reasonably foreseeable risks involved with the joint criminal enterprise. There was a significant and reasonably foreseeable risk that the appellant might not exercise the degree of care and skill expected of a reasonably careful and competent driver. Also, there was a significant and reasonably foreseeable risk that the appellant, who was in control of the vehicle, might refuse to comply with requests or directions from the passengers (including the respondent) in the course of the agreed journey from Perth to Maddington (including requests to slow down or stop). These risks arose as a result of the appellant driving a stolen vehicle, his not having a driver's licence, his having consumed an unknown quantity of alcohol, and the vehicle being grossly overloaded with occupants.
The respondent must be taken to have understood that she would be taking these risks in travelling in the vehicle. Its owner may have reported the loss of the vehicle to the police. If that occurred, police officers may have sought to pursue the vehicle and arrest the appellant and the respondent. Further, police officers on patrol may have noticed the grossly overloaded state of the vehicle and endeavoured to stop the vehicle for the purpose of apprehending the appellant. The appellant may have refused to comply with instructions from police officers and sought to evade them.
These facts and circumstances manifested a relationship between the appellant and the respondent which was not consonant with the observance by the appellant of the ordinary standard of care to be expected of a reasonably careful and competent driver. The ordinary standard of care is objective. When the journey commenced, the respondent could not reasonably have expected the appellant to observe this standard.
In the present case, as in Gala, it was neither appropriate nor feasible for the trial judge (and it is neither appropriate nor feasible for this court) to engage in the weighing and adjusting of the risks attending the joint criminal enterprise on the one hand, and the safety of the passengers (in particular, the respondent) on the other. It is not feasible or appropriate for the law to endeavour to fix a standard of care by taking into account and evaluating the incidents of the criminal enterprise upon which the appellant and the respondent were jointly engaged. See Italiano, 330 (Neaves, Burchett & Whitlam JJ). In the present case, the appellant's careless driving arose in the course of the performance of the joint criminal enterprise. The enterprise was not merely incidental to the occurrence of the accident. At all material times, the circumstances in which the vehicle was taken had an ongoing nexus with the purpose for which the vehicle was being used.

The learned trial judge fell into error by focussing upon the personal relationship between the appellant and the respondent and the subjective expectations of the respondent; by attributing substantial weight to whether the journey could be characterised as a 'joy‑ride'; and by failing to take into account or, alternatively, attach sufficient importance to the significant and reasonably foreseeable risks involved with the joint criminal enterprise.
The appellant's assertion that the trial judge's decision was vitiated by error has been made out.

The significance of the respondent's requests that the appellant slow down and stop the motor vehicle

As I have mentioned, the trial judge found that, shortly before the accident, the respondent requested the appellant to slow down and, a little later, requested him to stop to enable her and her sister to alight from the vehicle [8]. The appellant disregarded her requests [8]. These findings of fact reflect the plea in par 2(c) of the respondent's reply that 'the [the appellant] refused the requests of [the respondent] to stop the vehicle and let her out, thereby rendering [the respondent] an unwilling passenger'. The respondent's requests were a factor (among numerous factors) which grounded her Honour's conclusion that the appellant owed the respondent 'the usual duty of care that a driver owes a passenger' [116]. According to her Honour, by these requests the respondent 'specifically distanced herself from' the appellant's conduct in speeding or otherwise driving in a reckless manner [86].
The respondent did not file a notice of contention for the purpose of seeking to uphold the trial judge's decision on the basis that the respondent, by her request that the appellant stop the vehicle so that she could alight, withdrew from the joint criminal enterprise and, in consequence, from that point up to the accident, the appellant owed the respondent the ordinary duty of care imposed by the law of negligence on the driver of a vehicle towards his or her passenger.
I raised this issue with counsel for the respondent in the course of oral submissions on the appeal:
BUSS JA:   Do you say that at that point the duty of care arose from the ashes of the previous joint illegal enterprise and, what, a duty of care was owed from that point on when she asked him to slow down or she asked to get out of the vehicle?
STAUDE, MR:   We don't say there was a point at which the relationship changed.
BUSS JA:   Well, how is that relevant?
STAUDE, MR:   We say that the duty was always owed to her by the respondent.
BUSS JA:   Well, if the duty was always owed from the time the journey commenced, then how are those points of any relevance; in other words, the fact she asked him to slow down or she asked to get out of the vehicle at one stage? How is that relevant in terms of the existence of a duty that always existed, on your submission?
STAUDE, MR:   It indicates her unwillingness to participate in an enterprise which involved reckless driving. It was when the driving became reckless that she indicated that she wished to get out of it, for him to stop and for him to let her out of the vehicle (appeal ts 36).
A little later the following exchange occurred:
BUSS JA:   I must say I still don't fully understand, Mr Staude, and perhaps you can explain it to me, the relevance in your submission of the request by the plaintiff that the driver slow down or that she be allowed to exit the vehicle against the background that you submit that a duty of care existed from the outset. If you are right and a duty of care existed from the outset, of what relevance are those subsequent activities? How are they relevant to the issue in the case?
STAUDE, MR:   It's solely evidential, your Honour.
…
STAUDE, MR:   It tends to prove that a joyride in the sense of an irresponsible driving episode was not reasonably expected by anyone in the car including the plaintiff when the journey began. So it was not an inherent risk of ‑ ‑ ‑
BUSS JA:   Well, you couldn't put that higher than saying it wasn't expected by the plaintiff, actively expected.
STAUDE, MR:   And it wasn't reasonably expected because of the nature of the journey which was to be undertaken, the purpose of it (appeal ts 38).
It is apparent that counsel for the respondent did not rely on (and, indeed, disavowed) a case based on the proposition that a duty of care arose upon the respondent requesting the appellant to stop the vehicle so that she could alight. Counsel did not argue that the respondent's request constituted a withdrawal by her from the joint criminal enterprise.
In any event, as I have mentioned, at the commencement of the journey there were significant and reasonably foreseeable risks involved in the joint criminal enterprise, including the risk that the appellant, who was in control of the vehicle, might not comply with requests or directions from his passengers (including the respondent) in the course of the agreed journey from Perth to Maddington (including requests to slow down or stop). The appellant's speeding and reckless driving occurred in the course of the agreed journey in the stolen vehicle. There was no detour. The appellant did not (unilaterally or otherwise) embark on a different journey. In these circumstances, the respondent's requests did not at law transform her relationship with the appellant so that, upon the making of the requests, an ordinary duty of care by the appellant to the respondent arose.

Conclusion

I would allow the appeal, set aside the judgment entered by the trial judge, and dismiss the respondent's claim.
NEWNES JA: This appeal arises out of a motor vehicle accident in which the respondent was seriously injured. The respondent was one of eight passengers in a stolen car driven by the appellant which left the road and collided with a pole. The respondent became a tetraplegic as a result of the accident. The only issue at trial was whether the appellant owed a duty of care to the respondent. The trial judge found that he did: Miller v Miller [2008] WADC 46. It is against that finding that this appeal is brought.

The facts

At the time of the accident, the respondent was 16 years of age. On 16 May 1998, at about 6.00 pm, the respondent and her older sister, Narelle (who was then 20 years of age), visited the house where the appellant was staying. The appellant, who was then 27 years of age, was the cousin of the respondent's mother. The respondent said in evidence that she regarded the appellant as her uncle. The respondent and Narelle spent about an hour drinking alcohol with the appellant and Cindy, the cousin of the respondent's mother, before they all took the train to Northbridge at about 8.00 pm. The respondent, Narelle, Cindy and the appellant wandered around Northbridge for some time before going to a nightclub. During the time they were wandering around Northbridge they consumed more alcohol.
The respondent did not enter the nightclub because she was under‑age. She walked to the train station with the intention of catching a train home. When she arrived at the station, the respondent realised she had missed the last train. She came across her cousin, Hayley, at the train station and asked Hayley to walk with her back to the nightclub to wait for the others to emerge.
After they came out of the nightclub, the appellant, Cindy and three other friends decided to take a taxi home. The appellant told the respondent there would not be enough room for her, Narelle and Hayley in the taxi. The respondent did not have enough money to pay for a taxi and decided to look for money in cars parked outside the nightclub. Having failed to find any money, the respondent decided to steal a car. By this stage it was about 4.00 am.

The respondent managed to start a car, a Toyota Corona sedan, and asked Narelle to drive her and Hayley home in it. The respondent was aware that Narelle had been drinking. The respondent was also aware that Narelle did not hold a driver's licence.
As the respondent, Narelle and Hayley were about to leave the car park in the stolen car the appellant, who was waiting at a nearby taxi stand, walked over to the car and said to Narelle, 'I'm your uncle, let me drive'. Narelle moved from the driver's seat to the front passenger seat and the respondent moved into the back of the car with Hayley. The appellant got into the driver's seat. A number of the appellant's friends who had been waiting with him at the taxi stand also then got into the car, making a total of eight passengers plus the appellant. After some juggling of positions, the respondent ended up sitting on Hayley's lap in the back of the car. The respondent admitted in evidence that she could have got out of the vehicle if she had wished to do so.
The respondent gave evidence that she had not previously been in a vehicle driven by the appellant and did not know whether he held a driver's licence. She conceded in cross‑examination that she assumed he did not. The respondent also said that she was aware the appellant had been drinking but said she did not know how much he had drunk, having parted company with him several hours earlier when he went into the nightclub.
The respondent and Narelle lived in Maddington. The appellant lived in Kelmscott, a suburb some distance further south. The appellant drove from Northbridge through the central city, along the Esplanade and over the Causeway onto Albany Highway, heading towards Kelmscott. The arrangement was apparently that on his way to Kelmscott the appellant would drop off the respondent and Narelle at their home in Maddington. The respondent gave evidence, which the trial judge accepted, that the appellant drove in a sensible manner through the city and over the Causeway, but then began speeding and drove through a couple of red lights. The respondent asked the appellant to slow down and then asked him to stop and let her and Narelle out. The appellant told her that they were 'alright' and that they should come with him to Kelmscott.
Just prior to reaching Maddington, the appellant slowed down and the respondent again asked to be let out. She said the appellant laughed off her concerns. Shortly afterwards, at about 5.00 am, the appellant lost control of the car, which left the road, mounted a kerb and collided with a pole. The respondent suffered very serious injuries in the collision and is now a tetraplegic. One of the other passengers died as a result of the accident.
The appellant was subsequently charged with dangerous driving causing death, dangerous driving causing grievous bodily harm, and driving under the influence of alcohol. He pleaded guilty to the charges and was sentenced to 5 years' imprisonment.
The respondent brought an action for damages for negligence against the appellant. The only question for determination by the trial judge was whether, in circumstances where the appellant and the respondent were involved in a joint illegal enterprise at the time of the accident, the appellant owed a duty of care to the respondent. It was common ground that the joint illegal enterprise was the unlawful use of a motor vehicle, contrary to s 371A of the Criminal Code1913 (WA).
The respondent agreed that if a duty of care were found she would be liable for contributory negligence to the extent of 50 %. The appellant waived his reliance on certain other pleaded defences.

Decision of the trial judge

The trial judge, having reviewed a number of authorities, considered that eight factors relevant to the determination of the question of whether a duty of care was owed by the appellant could be distilled from the judgment of the plurality in Gala v Preston [1991] HCA 18; (1991) 172 CLR 243. Those factors were:
1.the nature of the relationship between the respondent and the appellant;
2.whether the joint criminal activity gave rise to the only relevant relationship between the parties;
3.whether the joint criminal activity constituted the whole context of the accident;
4.whether the joint criminal activity was, of its nature, fraught with serious risks;
5.whether the respondent appreciated that she would be encountering serious risks in participating in the criminal activity;
6.whether the respondent could not have had any reasonable basis for expecting that the driver of the vehicle would drive it according to ordinary standards of competence and care;
7.the nature and incidents of the illegal enterprise; and
8.whether in the circumstances it would not be possible or feasible for a court to determine the appropriate standard of care to be expected of the appellant as the driver of the vehicle.
The trial judge considered that a number of subsequent cases, commencing with Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180, give rise to two additional factors, being:
9.the vulnerability of the respondent to the conduct of the appellant; and
10.the measure of control which the appellant had over any conduct which could affect the respondent.
The trial judge then considered her findings on the evidence in light of each of those factors. Her Honour found as follows.
1.The relationship between the appellant and respondent was not only that of driver and passenger. Both parties regarded the appellant as being responsible for the respondent's care ([77]). The respondent gave evidence that she expected the appellant to drive her home safely and to look after her. She said that she had known the appellant for as long as she could remember and that she regarded him as her uncle. She had a good relationship with him, respected him and looked up to him, as he was older. She had no reason to be concerned about any of his behaviour in the past.
2.The activity of driving a stolen vehicle was not the only factor which gave rise to the relationship between the appellant and the respondent; the other factor was the respondent's reliance on the appellant to look after her and to drive her home safely ([88]). In that connection her Honour appeared to attach some weight to the fact that the car was not being used for what her Honour described as a 'joy‑ride' but for the purpose of taking the participants home.
3.It was not clear that the joint criminal activity - the use of a stolen car - constituted the whole context of the accident, in that it was not clear that the fact the car was stolen made any material contribution to the manner in which the appellant drove it. The appellant may have driven the car in the same manner if it had been his own or that of the respondent. Her Honour also observed that other than the appellant's plea of guilty to charges of dangerous driving causing death and grievous bodily harm, there was no evidence of what caused the accident. It may have been caused by momentary inattention or otherwise been unrelated to the fact the car was stolen ([91] ‑ [94]).
4.Whether using a stolen car is fraught with serious risks depends upon the circumstances. Where a stolen car is used to take friends home, the unlawful use of the car is not, of its nature, fraught with serious risks ([95]).
5.The respondent did not appreciate that she would be encountering serious risks in travelling home with the appellant at the wheel of the stolen car. There was no evidence that the appellant appeared to be too intoxicated to drive safely and the mere fact that they were in a stolen car would not have made the respondent concerned about any risk of the appellant driving recklessly ([96] ‑ [98]). There was no reason for the respondent to appreciate that they might become involved in a pursuit by the police, because they were not using the vehicle for a 'joy‑ride'. Further, the respondent did not have time to weigh up the inconvenience of finding herself without a lift home against the risk of accepting a ride with the appellant in an inebriated state ([107]). The case was distinguishable from Gala v Preston and Kickett v State Government Insurance Commission (1997) 26 MVR 321 because there was no evidence that the appellant was highly intoxicated or on a 'joy‑ride'.
6.There was no evidence upon which it could be concluded that the respondent had any reasonable basis for expecting the appellant to drive the car other than according to ordinary standards of competence and care ([108]).
7.The illegal enterprise was the unlawful use of the motor vehicle in contravention of s 371A of the Criminal Code ([78]). It is irrelevant that the respondent initiated the stealing of the car. There was no evidence that the parties embarked on a 'joy‑ride', rather the car was being driven for the purpose of taking the participants home ([85] ‑ [87], [109]).
8.There was no evidence that in the circumstances it would not be possible for a court to determine the appropriate standard of care to be expected of the appellant as driver of the vehicle. The fact that the car was stolen did not make it impossible or not feasible to determine an appropriate standard of care ([110] ‑ [111]).
9.The respondent was vulnerable to the decision by the appellant to take over as the driver of the car because she regarded him as her uncle and would not have been in a position to question his authority. Once the car was on the road, she was unable to get out of the car and was exposed to the appellant's reckless method of driving. The respondent was also vulnerable by reason of the circumstances under which she did not object to the appellant driving - it was 4.00 am and she had no money and no other way of getting home to Maddington ([112]).
10.The appellant had control over who would drive the car and the manner in which the car was driven. The appellant ignored the respondent's requests to slow down or stop in circumstances where he was in a position to control the manner of driving, and therefore the risk to which the respondent was exposed ([113]).
The trial judge found that the application of those factors led to the conclusion that the appellant owed to the respondent the usual duty of care that the driver of a motor vehicle owes to a passenger. The evidence did not indicate that such a duty did not exist or should be attenuated ([114]).
Her Honour concluded that:
I accept that this is a case which on first impression appears to fall into the same category as some of the other cases dealing with joint illegal enterprises and stolen cars … in which the courts held that there was no duty of care. However, the application of the salient features identified ... indicates that on the particular facts of this case, it falls into a different category. The main distinguishing feature is that although this case involved a ride in a stolen car, it was not a 'joy‑ride' and it was not a journey that courted the risk of serious injury, at least not from the outset [115].

Grounds of appeal

The appellant relied on six grounds of appeal, but it is unnecessary to set out those grounds. In substance, the issue on the appeal was whether the trial judge erred in law in finding that the appellant owed to the respondent a duty of care in driving the vehicle, in circumstances where at the time of the accident the appellant and the respondent were involved in a joint illegal enterprise, namely, the unlawful use of the vehicle.

Appellant's submissions

The appellant submitted that the trial judge erred in law in concluding that the appellant owed the respondent a duty of care. While the concept of proximity is no longer relevant, Gala v Preston is still authority for the principle that a duty of care should not be found to exist in circumstances where the parties were involved in a joint illegal enterprise. In this case, the relationship between the appellant and respondent was properly assessed against the activities in which they were involved leading up to the accident, being their joint and knowing involvement in the serious criminal act of the unlawful use of a motor vehicle. In such circumstances, there is no basis upon which a duty of care owed by one to the other can be found to exist. Such conduct falls outside the normal moral criteria which defines and underpins the basis upon which the common law recognises a duty of care. Furthermore, recognition of a duty of care in this case would condone a serious breach of the Road Traffic Act 1974 (WA).

The appellant submitted that the finding of the trial judge that the parties did not intend to embark on a 'joy‑ride' (a concept without any clear meaning) provided no point of distinction. The proposition that if they were not embarking on a 'joy‑ride', the respondent was entitled to expect from the appellant the normal standard of care required of a driver, is a wholly unsafe and unworkable basis for the law to operate. The existence of a duty of care does not depend upon the purpose for which the participants engaged in the criminal conduct (in this case, the purpose for which they used the stolen car), but a duty of care is denied because the serious illegality of the conduct means that it is not feasible to determine an appropriate standard of care, with the result that no duty of care can arise.
The appellant submitted that the trial judge erred in failing to apply and follow Kickett v SGIC, in which the Full Court had found that the appellant in that case could not have had any reasonable expectation that the driver of the stolen vehicle in which they were travelling would drive it according to the ordinary standards of competence and care. The court observed in that case that because the car was stolen it could have lead to a police pursuit, with all the attendant risks. In the present case, the joint illegal enterprise was also fraught with serious risks, given the stolen vehicle had nine occupants and was travelling through the central city and suburban areas in the early hours of the morning.
The appellant further contended that the trial judge had placed irrelevant or undue significance or reliance upon the existence of a familial relationship of responsibility between the appellant and the respondent when the only relevant relationship between the appellant and the respondent was as joint participants in a continuing illegal act. Moreover, that finding was inconsistent with other evidence at trial. Nothing in the appellant's conduct toward the respondent during the course of the evening could have led the respondent reasonably to conclude that the appellant would exercise the care of a normal driver.

Respondent's submissions

The respondent submitted that the trial judge correctly found that the appellant owed a duty of care to the respondent in circumstances where first, the respondent was 16 years of age and regarded the appellant (who was 27 years of age) as her uncle; secondly, the appellant accepted he had a responsibility to look after the respondent; thirdly, the illegal activity initiated by the respondent was interrupted by the appellant's insistence that he drive the car; fourthly, the purpose of the journey was to get home; and fifthly, after the journey had commenced the appellant drove recklessly despite being asked by the respondent and others to stop and let them out of the car.
It was argued that the trial judge correctly took into account the respondent's vulnerability, the control exercised by the appellant, and the fact that the respondent had no reason to expect that the vehicle would be not be driven with a reasonable standard of care in circumstances where the journey was not a 'joy‑ride' and so did not court the risk of serious injury. That approach was in accordance with the authorities. The finding that the appellant owed a duty of care does not condone the respondent's participation in the crime; rather a failure to recognise a duty of care would condone acts by the appellant which were far more egregious than those of the respondent, being dangerous driving causing grievous bodily harm.

The disposition of the appeal

There is no doubt that ordinarily the driver of a motor vehicle will owe to any passenger in the vehicle a duty to exercise the care and skill reasonably to be expected of a competent driver. In the present case, the question is whether the appellant owed any (and if so, what) duty of care to the respondent who was a participant with the appellant in the unlawful use of a motor vehicle, in contravention of s 371A of the Criminal Code.
Before turning to the relevant authorities it is convenient to set out s 371A of the Criminal Code. It is (relevantly) as follows:
(1)A person who unlawfully -
(a)uses a motor vehicle; or
(b)takes a motor vehicle for the purposes of using it; or
(c)drives or otherwise assumes control of a motor vehicle,
without the consent of the owner or the person in charge of that motor vehicle, is said to steal that motor vehicle.
By virtue of s 378 of the Criminal Code, a person who contravenes s 371A is liable to imprisonment for seven years.
It was not in issue before the primary judge or on this appeal that the appellant and the respondent were unlawfully using the motor vehicle without the consent of the owner at the time of the accident.
The question of whether a duty of care is owed by one participant in an illegal act to another participant in that act has been considered in several decisions of the High Court.
A convenient starting point is Smith v Jenkins [1970] HCA 2; (1970) 119 CLR 397. In that case, the respondent and the appellant assaulted and robbed the owner of a motor vehicle, and took the vehicle without his consent. The respondent was a passenger in the vehicle which was being driven by the appellant when it left the road and collided with a tree. The respondent was injured in the accident and brought an action in negligence against the appellant. The High Court unanimously held that the respondent could not recover, but different views were expressed as to the basis for that conclusion.
Kitto J expressed (403) the relevant principle as being 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 the act.
Windeyer J considered (418) that the question was not whether the respondent was precluded by considerations of public policy from asserting a right of action for negligence, but the proper enquiry was whether there was any right of action; that is, whether there was a duty of care. His Honour said (419) that a person owed no duty of care to an accomplice in doing an act which was a step in the execution of a common illegal purpose, and concluded that '[t]he present case seems to me the same in principle'. His Honour accepted (421) that whether an action for negligence can be brought by one criminal against another depends upon whether the negligence was so related to their unlawful conduct that it can be said, in a general sense, to arise out of the crime. The question was whether the harm arose from the manner in which the criminal act was done. Windeyer J considered that in that case the harm 'resulted from the careless manner in which the [appellant] carried out his part in [the illegal enterprise]' (422). His Honour formulated the relevant rule as follows:
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 (422).
Barwick CJ said (400) that the refusal of relief should be based, not on grounds of public policy, but the refusal of the law to erect a duty of care as between persons jointly participating in the performance of a crime, and expressed general agreement with the reasons of Windeyer J. Owen J (425) was of the same view. Walsh J considered (433 ‑ 434) that no right of action existed, but put that on the basis of public policy.
A plea of illegality fell for consideration in a quite different factual situation in Progress and Properties Ltd v Craft [1976] HCA 59; (1976) 135 CLR 651. There a workman on a building under construction was injured while riding on a goods hoist, with the concurrence of the operator of the hoist. The accident occurred when the operator lost control of the hoist. Pursuant to regulations made under the Scaffolding and Lifts Act 1912 (NSW), it was unlawful for the workman to ride on the hoist or for any person to permit him to do so. The workman sued his employer for negligence. The employer pleaded that the workman's injuries were suffered in the course of and in consequence of his participation in a joint illegal venture, namely, riding on a goods hoist in contravention of the regulations. The High Court (Stephen, Mason, Jacobs and Murphy JJ, Barwick CJ dissenting) rejected the plea of illegality. Jacobs J (with whom Stephen, Mason and Murphy JJ agreed) said:
A plea of illegality in answer to a claim of negligence is a denial that in the circumstances a duty of care was owed to the injured person. 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 (668). (footnotes omitted)
Jacobs J said (668) that the relation of the illegality to the negligence in that case did not require any examination of the relationship between the participants which could affect the duty of care. The same standard of care would be expected of the operator whether or not it was legal to ride on the hoist, and the court would not have to embark on an enquiry whether the act of the operator was reasonable having regard to the illegality of the enterprise. His Honour also considered (669) that the defence of illegality had no application to regulations designed to protect the participants in the enterprise.
The participation in an illegal enterprise involving a motor vehicle arose in Jackson v Harrison [1978] HCA 17; (1978) 138 CLR 438, but in rather different circumstances to the present case. In that case, both the respondent and the appellant had had their driver's licence suspended for traffic offences. Each knew that the other's licence had been suspended. Nevertheless, they decided to use the appellant's vehicle to travel from Adelaide to Port Augusta for the weekend and agreed to share the driving. Due to the appellant's negligence in driving the vehicle, it collided with some stationary vehicles, injuring the respondent. The respondent sued the appellant for damages for negligence. The High Court (Mason, Jacobs, Murphy and Aickin JJ, Barwick CJ dissenting) rejected a plea of illegality.
Mason J referred to the above‑quoted passage from the judgment of Jacobs J in Progress and Properties as stating the relevant principle. His Honour rejected the proposition that there was any general principle that a person who is engaged in some unlawful act is owed no duty of care by another participant. He considered that the decision in Smith v Jenkins was limited to the illegal use of a motor vehicle. Mason J said:
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 (455 ‑ 456).
His Honour considered that the driving of a motor vehicle by a disqualified driver was not such a case.
Jacobs J (with whom Aickin J agreed) referred to what he had said in Progress and Properties and went on to say:
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 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 (457 ‑ 458).
His Honour referred, as an application of those principles, to a passage in his reasons for judgment in Bondarenko v Sommers (1968) 69 SR (NSW) 269, in which he had said:
The illegal act complained of was the taking and using of a motor vehicle and it is the using of the motor vehicle which is complained of as having been done negligently. Thus the actual act complained of as done negligently is itself the criminal act in which both plaintiff and defendant were engaged (277).
Jacobs J considered that the fact the driver was disqualified had no bearing on the standard of care reasonably to be expected of him.
In Gala v Preston, the appellant, the respondent and two other youths had consumed a great deal of alcohol during the course of an afternoon before deciding that evening to steal a car to 'go up north'. The intention was that the respondent and one of the other youths would visit friends while the appellant and the other youth would continue further north to commit some breaking and entering offences. They stole a vehicle and set out, but later that night, while the appellant was driving, the vehicle left the road and struck a tree. The respondent was injured in the accident. Subsequently both the appellant and the respondent pleaded guilty to the unlawful use of a motor vehicle, contrary to s 408A of the Criminal CodeAct 1899 (Qld). The respondent sued the appellant for damages for negligence in driving the vehicle. The High Court unanimously held that the respondent could not recover from the appellant.
Mason CJ, Deane, Gaudron and McHugh JJ, in a joint judgment, reviewed the earlier cases dealing with illegality. Their Honours considered (249 ‑ 250) that Smith v Jenkins was not authority for the proposition that in all circumstances the participation of the 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. There was 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. Their Honours referred with approval to the passage from the judgment of Jacobs J in Progress and Properties which I set out earlier. They went on to say:
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, eg, traffic laws and industrial safety regulations, there is no reason why illegality of that kind should negate the existence of a duty of care (252).
Their Honours then turned to the development, after the cases referred to, of the concept of proximity in determining the existence of a duty of care. In the course of their consideration of that topic, their Honours referred to the court's decision in Cook v Cook [1986] HCA 73; (1986) 162 CLR 376. They observed (253 ‑ 254) that in that case it had been held that special and exceptional circumstances may transform the relationship between a driver and a particular passenger into a special or different class or category of relationship which lacks the requisite relationship of proximity necessary to give rise to a relevant duty of care. It was therefore necessary to examine the relationship between the parties to determine whether there was a relationship of proximity such as to give rise to a duty of care. Their Honours went on to say:
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.
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 (254 ‑ 255).
Brennan J, however, rejected the concept of proximity as a criterion for ascertaining the existence of a duty of care. His Honour considered (263) that the factor which called for consideration was simply the illegal use of the vehicle at the time of the accident and the joint participation of the plaintiff and the defendant in that use. Brennan J held (270) that a plaintiff's participation in the commission of an offence will prevent a duty of care arising where admitting a duty of care would condone a breach of the criminal law. Whether admitting a duty of care would condone a breach of the criminal law will depend upon the nature of the offence. That inevitably calls for a classification of the laws creating offences according to the effect which admission of the duty would have on their normative influence. The principle cannot be expressed in a way which is self‑executing (273). His Honour then turned to the offence in that case:
Is the principle applicable to offenders engaged in the unlawful use of a motor vehicle contrary to s 408A of The Criminal Code? Section 408A creates an offence which is not only akin to stealing but which is aimed at preventing conduct that frequently results in road accidents and attendant damage to the person and property of others (including the vehicle being unlawfully used). It is a serious offence against the owner or person in lawful possession of the vehicle and against the public. To admit a duty of care owed by one offender to a co‑offender in the unlawful use of a vehicle would be to assure the co‑offender of compensation for damage to himself occurring in the course of conduct which damages the interests of the person from whose possession the car is taken and carries the risk of damage to others. The normative influence of s 408A would be destroyed by admitting a duty of care. Applying the principle stated, the duty of care must be denied - a result in accord with the decision in Smith v Jenkins (273).

Dawson J also did not derive any assistance from the concept of proximity. His Honour considered (277) that the refusal of the law to erect a duty of care arises from the refusal of the law to condone the commission of a criminal offence by granting a civil remedy. Dawson J considered (278) there would be a fundamental inconsistency between the civil and criminal law if a civil remedy were to be afforded to one accomplice against another based upon the latter's failure to observe a standard of care fixed by reference to their joint criminal activity. The standard which the law of negligence ordinarily applies to a duty of care is the standard of the ordinary, reasonable person. The fact that two or more persons are jointly engaged in a criminal enterprise may constitute a special element in their relationship which requires modification of the standard of care if any duty of care between them is to be imposed. The nature of the criminal enterprise may bring with it considerations which would make it quite unrealistic simply to have regard to the standard of the ordinary, reasonable person. To give validity to the criminal enterprise by using it as the foundation for erecting a standard of care is something which the law will not do. To do so would be to condone breach of the criminal law (279).
His Honour observed, however, that it is not in every relationship involving participation in a criminal activity that the setting of the appropriate standard of care involves dependence upon the nature of the criminal activity in which the participants are involved, referring to Progress and Properties and Jackson v Harrison. But Dawson J concluded that it did in the case of the illegal use of a motor vehicle:
The criminal nature of the activity with its concomitant lack of responsibility for the safety of the vehicle involved and the inevitable desire to avoid detection which might result in the imposition of a criminal penalty must mean that the participants in such a venture cannot be placed, as regards each other, in the position of ordinary, prudent users of the road. There is a special element in their relationship which, if a standard of care were to be set, would require its modification by reference to the criminal nature of their activity. It is an element which in this case remained present to affect that relationship during the entire period of the illegal use of the motor car. In these circumstances the law refuses to set a standard of care and, hence, to erect a duty of care (280).
Toohey J appears to have reached his decision on the basis of public policy. He did not consider (288 ‑ 289) that it would necessarily be difficult to determine a duty of care in any circumstances in which the parties were involved in the commission of a criminal offence. In his Honour's view (292), Smith v Jenkins (which he considered indistinguishable) turned on the unwillingness of the courts to find a duty of care in circumstances where, although there is a relationship between the parties which ordinarily would give rise to a duty of care, the injury to the plaintiff arises from a serious criminal act in which the plaintiff and the defendant participated, when that act is the act relied upon to found a cause of action.
The decision of the Full Court of this court in Kickett v SGIC was distinguished by the trial judge on the basis that the facts of that case were different. It is therefore necessary to say something about that case. There the appellant, who was 15 years of age, went with a friend to visit other friends at a house at which they met one King, who was about 14 years of age. All of the people at the house were drinking alcohol. The appellant fell asleep at the house but was awakened during the night by King and another who had stolen a car. The appellant and others got into the car, which was driven by King. The appellant was aware that the car had been stolen. They set out to take a joy‑ride and to steal another vehicle which King wanted to drive. During the journey King lost control of the car, which struck a power pole. The appellant was seriously injured. The appellant sued King for negligence. King died before the action came to trial and the respondent was substituted as the defendant in the action. The trial judge found that King owed no duty of care to the appellant and dismissed the claim. An appeal against that decision was dismissed.
Owen J (as his Honour then was) noted (328) that the following significant facts had been made out at trial: that King was under 15 years of age; that he did not hold a driver's licence and the appellant knew or should have known that; and that King and the appellant were involved in a joint enterprise to steal a motor vehicle and the appellant knew or should have known that there was a serious risk to his safety in the circumstances. His Honour considered that the trial judge had correctly found that there was no relevant duty of care owed to the appellant. The appellant had placed himself in a position where there was the prospect of involvement in a high speed police chase and the vehicle was controlled by a person who was significantly under age and did not have, and could not have, a driver's licence, implying that he was an inexperienced driver or, at best, experienced only in driving in an illegal capacity (328). His Honour rejected (329) as immaterial a submission that the appellant was not involved in the theft of the vehicle and was only involved in the joy‑riding part of the activity.
Kennedy J reached the same conclusion. His Honour found that the appellant could not have had any reasonable basis for expecting that King would drive the vehicle according to the ordinary standard of care and competence. He must be taken to have appreciated that he would be encountering serious risks in travelling in a stolen vehicle being driven by a person too young to hold a driver's licence who had been drinking. His Honour observed (324) that the stealing of the car could well have been the subject of a report to the police, leading possibly to their pursuit. Scott J agreed (330) with the judgments of both Owen J and Kennedy J.
Turning to the present case, the trial judge held, correctly in my respectful view, that the concept of proximity was not essential to the decision in Gala v Preston. The concept of proximity is no longer regarded as being of utility in determining whether a defendant owes a duty of care to the plaintiff: Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 [48]; Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510. But as is apparent from the decision of the High Court in Imbree ([47]), references to proximity reasoning in a previous decision are not of themselves a sufficient reason for rejecting the principle the case established. It is necessary to look beyond proximity reasoning to consider whether the decision is consistent with fundamental principle. (In Imbree, the court concluded ([71] ‑ [72]) that the earlier decision of the court in Cook v Cook was not consistent with fundamental principle.)
In both Smith v Jenkins and Gala v Preston, the High Court unanimously held that a joint participant in the unlawful use of a motor vehicle is owed no duty of care by another participant in the use of the vehicle. The decision in Smith v Jenkins did not depend upon considerations of proximity. The decision in Gala v Preston is consistent with the decision in Smith v Jenkins and although four members of the court in Gala v Preston referred to the concept of proximity in concluding that no duty of care was owed, the other three members of the court arrived at the same conclusion while expressly rejecting any reliance on proximity. In my view, notwithstanding the references to the concept of proximity, the decision in Gala v Preston is consistent with principle and continues to be the law in Australia.
It is, however, evident that the reasoning in the various cases which have considered a plea of illegality differs markedly and that there is no consistent principle which has been applied in determining whether or not a duty of care is owed. But I do not think it is necessary for the resolution of this appeal to attempt to determine the nature of any general principle that might be applied in determining whether in any particular case the joint involvement of the plaintiff and the defendant in an unlawful enterprise will mean that no duty of care is owed by the defendant to the plaintiff.
There are two propositions which I think can clearly be drawn from the authorities. The first is that there is no general principle 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. The second, however, is that where the illegal act complained of is the unlawful use of a motor vehicle and it is the use of the motor vehicle which is complained of as having been done negligently, no duty of care is owed.
I do not consider that for present purposes it matters whether the basis of the second proposition is said to be the inability or the refusal of the court to determine an appropriate standard of care, or that the recognition of a duty of care would condone a breach of the criminal law, or that it would be contrary to public policy to recognise a duty of care. Support for each ground can be found in the cases to which I have referred - although the first would now seem to be difficult to reconcile with Imbree v McNeilly, which would appear to require that any standard of care be the ordinary standard of the reasonable driver. In my view, in the present case on any basis it is clear that no duty of care was owed by the appellant to the respondent in the driving of the stolen vehicle.
It was not in issue that the appellant and the respondent were joint participants in serious criminal conduct in the unlawful use of the vehicle. The respondent knew the vehicle had been stolen. She was the person who had broken into the vehicle and started it.
The unlawful use of the vehicle was obviously fraught with serious risks. None of the occupants had any responsibility for the vehicle nor had they any reason to be concerned about maintaining the condition of the vehicle, so long as it continued to be capable of serving their immediate purpose. The respondent knew that the appellant did not hold a driver's licence. Whether that was because he had never held a licence or because his licence had been suspended for traffic or other offences did not clearly emerge at trial. But I note that the respondent gave evidence that she had never previously travelled in a vehicle driven by the appellant.
The respondent knew that the appellant had been drinking. The trial judge accepted that the respondent did not realise the appellant was over the legal blood alcohol limit. But perhaps more importantly the respondent could not be certain whether or not the appellant was under the legal limit and therefore whether the alcohol he had consumed would affect his capacity to drive the vehicle.
The vehicle was seriously and obviously overloaded. It was licensed to carry five people. There were nine people in it. It is not easy to envisage how they all managed to fit into the vehicle and still leave sufficient space for the appellant to operate the controls. To reach the respondent's home meant a substantial journey across the city. It would have been immediately obvious to any police officer who saw the vehicle that it was dangerously overloaded. There was plainly a real possibility that the vehicle would attract the attention of the police either for that reason or because it had been reported as stolen. The appellant had good reason not to wish to be apprehended driving the vehicle, leading to the prospect that the vehicle would be involved in a police pursuit.
The trial judge considered that whether the respondent appreciated the risks involved in the illegal enterprise was to be determined subjectively; that is, on the basis of the respondent's actual knowledge and appreciation of the risks involved. In my respectful view, to the extent that such knowledge or appreciation is relevant, her Honour was in error. It is sufficient that the respondent ought reasonably to have appreciated the risks: Gala v Preston (254); Kickett v SGIC (324).
In the circumstances of this case, the respondent could not reasonably have expected that the appellant would drive the vehicle according to the ordinary standard of care. In finding to the contrary, the trial judge, in my respectful view, gave undue weight to the familial relationship between the appellant and the respondent. In my opinion, it was not open to her Honour to find, as she did, that because of that relationship the respondent reasonably relied upon the appellant to look after her and drive her home safely. That finding was not open in circumstances where the respondent knew that the appellant did not hold a driver's licence and had been drinking, that they were travelling in a stolen vehicle, and that the vehicle was seriously and obviously overloaded. I consider, with respect, that it is irrelevant that they were not on what her Honour described as a 'joy‑ride'.
Nor was it the case that the respondent had no practical alternative but to participate in the unlawful activity. In that connection, it is relevant to recall that the unlawful activity was initiated by the respondent. It was the respondent who broke into the car and started it and who intended that her sister Narelle (who had also been drinking and did not hold a driver's licence) would drive it. The appellant came on the scene very shortly afterwards and took over as the driver. The respondent gave evidence that she could have got out of the vehicle if she had wished to do so before the journey started. She chose not to do so, but chose instead to embark upon an illegal enterprise involving serious risks.
I should note for completeness that on this appeal the respondent did not seek to support the judgment below on the basis of the finding of the trial judge that shortly before the accident occurred the respondent had became concerned about the manner of the appellant's driving and had asked the appellant to stop and let her out of the car.
In my view, with respect, the trial judge erred in concluding that the appellant owed a duty of care to the respondent. In the circumstances, no duty of care was owed. In the absence of a duty of care, the respondent's claim against the appellant must fail.

Conclusion

I would allow the appeal, set aside the judgment and dismiss the respondent's claim.