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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Miller v Miller

Details

AGLC: Miller v Miller [2009] WASCA 199
Case: [2009] WASCA 199
Decision Date: 6 NOVEMBER 2009

CaseChat Overview and Summary

The court heard an appeal from the appellant, Miller, against the respondent, Miller, concerning an incident where the respondent was injured in a car accident while being a passenger in a stolen vehicle. The appellant, the driver, was aware that the car had been stolen. The court was tasked with determining whether the appellant owed a duty of care to the respondent under the circumstances. The decision was handed down in the Supreme Court of Victoria.

The primary legal issue before the court was whether the appellant, as the driver of a stolen vehicle, owed a duty of care to the respondent, who was aware that the car had been stolen. This involved examining the principles of negligence and the concept of a joint illegal enterprise. The court needed to decide if the principles of negligence applied in such a scenario and whether the respondent's awareness of the illegal activity could absolve the appellant from liability.

In delivering the judgment, the court held that the appellant did owe a duty of care to the respondent, despite the illegal nature of their enterprise. The court found that the principles of negligence applied, and the respondent's awareness of the stolen vehicle did not absolve the appellant from liability. The court reasoned that the appellant's actions in driving the stolen car recklessly contributed to the respondent's injuries, and therefore, a duty of care was owed. The appeal was dismissed, and the original decision was upheld.

The court ordered that the appeal be dismissed, and the original decision be upheld, with the appellant to pay the respondent's costs of the appeal.

Orders