Miller v Miller

[2010] HCATrans 287

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P25 of 2010

B e t w e e n -
DANELLE EVELYN MILLER
Appellant
and
MAURIN ASHTON MILLER
Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 4 NOVEMBER 2010, AT 10.18 AM

(Continued from 3/11/10)

FRENCH CJ: Yes, Mr Walker.

MR WALKER: Please the Court. Your Honours, may I complete ‑ ‑ ‑

HAYNE J: Mr Walker, before you begin, may I draw a series of matters to the attention of both sides that may or may not merit some consideration. They are concerned with the history of the legislation. You will find, if you look at some of the cases in New South Wales and Victoria of the 1950s and the 1960s, there is reference to what is described as a saving provision in traffic legislation. It may be that questions of that kind arise in this case. The limited researches I have been able to undertake suggest the following.

Section 371A of the Code is inserted in the Code by Act No 37 of 1991, section 17. That Act, the Criminal Law Amendment Act 1991, did as is suggested but, as you see from Part B of the Schedule, item 2 repealed section 89(1) of the Road Traffic Act 1974. Section 89(1) of the Road Traffic Act 1974 (WA) was a provision making it a crime to make unauthorised use of the vehicles. Amongst other things:

A person . . . who drives or uses a motor vehicle without previously obtaining the consent of the owner or person in lawful possession or charge of the vehicle commits an offence.

Penalties are prescribed. Section 89 of the Road Traffic Act 1974 traces its roots to the Traffic Act 1919 (WA). The 1974 Road Traffic Act repealed the Traffic Act 1919. Now life gets interesting. In the 1919 Traffic Act, as reprinted, for example, in 1957, section 60 provided for unauthorised use of vehicles in terms not relevantly different, I think, from the 1974 Act, but section 70 of the 1919 Act, which is a renumbering of what appeared initially, I think, as section 60, provided as follows:

Nothing in this Act shall take away or diminish any liability of the driver or owner of a vehicle by virtue of any other Act or at common law.

Like provisions, as I say, are to be found in the New South Wales legislation in force as in the 50s, in the Victorian provisions up to about, I think, 1953 and the like and there is reference to this so‑called saving provision in Bondarenko v Sommers by Justice Jacobs. A question may be whether a statutory provision of that kind, having once been made, but perhaps the connection with it being severed, I think by the 1974 Act because I could not find quickly any equivalent saving provision in the 1974 Act - maybe it is there, but I could not find it - but by its transfer into or - that is an ugly expression, but by its repeal and re‑enactment in the Code may, may not, bear upon issues of the kind with which we are concerned. I thought it important that the parties be alerted to those questions.

MR WALKER: I am obliged to your Honour.

GUMMOW J: Do we have to look at section 5 of the covering provisions to the Code in Appendix B:

Except as aforesaid, the provisions of this Act shall not affect any right of action which any person would have had against another if this Act had not been passed ‑ ‑ ‑

MR WALKER: Yes, is the answer. That is a savings clause. Your Honour simply asked do we have to look at it. Absolutely, given what Justice Hayne has pointed out. Could I start by response this way?

HEYDON J: It may be a matter where you would like to just think about it and deal with it at some later stage.

GUMMOW J: There must be some decisions on it.

MR WALKER: In answer to Justice Heydon, yes, but I would need to do it while on my feet.

HEYDON J: Yes, but who knows what twists and turns lie ahead of us today.

MR WALKER: Not myself, your Honour. Second, in answer to Justice Gummow, I can say that, subject to what Justice Hayne has said about Justice Jacobs in the New South Wales Court of Appeal in Bondarenko, certainly none of the reasoning in this Court, or I think that is, reviewing those I have read referred to in this Court’s reasons from the State Full Courts or Courts of Appeal, there has not been an approach to what is conveniently called the illegality defence arising from breach of penal provisions about either driving or industrial safety or, indeed, car stealing, which has used as one of the components in the reasoning anything to be drawn from the existence of a savings clause either in or otherwise affecting the criminal enactments. I do that from memory, albeit recent memory and I may stand corrected.

The next point is that the Criminal Code Act, that is the Act which enacts the Code, the covering provision if one likes, does have following the provision that the declaration of lawfulness in the Code does not permit an action to be brought, then has a savings clause as Justice Gummow has pointed out. It is:

Except as aforesaid –

and that is what I have just referred to -

the provisions of this Act –

which must include the enacted Code -

shall not affect any right of action which any person would have had against another if this Act had not been passed ‑ ‑ ‑

GUMMOW J: That might include a civil action by the owner of the motor vehicle against the thief.

MR WALKER: Yes, and, of course, actions for trespass to the person and the like and certainly actions in conversion, et cetera.

FRENCH CJ: Does that have an ongoing operation or is it limited to civil rights of action which might have accrued at the time of the Act?

MR WALKER: It is the first point I wanted to raise. The text says “if this Act had not been passed”. It is, at first sight, perhaps literally difficult to make that have what I will call an ambulatory effect. But, on the other hand, read purposively and, we would submit, appropriately it is difficult to understand why such an all‑embracing and important provision which addresses the question of private rights, after all, would not be read so as to incorporate everything that is to be treated thereafter as part of this Act by way of amendment; whether by way of outright insertion of new provisions or the transfer, so to speak, of provisions from other penal statutes to this statute, particularly in circumstances where those other penal statutes themselves have a saving clause.

So we would certainly submit that, notwithstanding a first sight reading literally of the expression “if this Act had not been passed”, with an emphasis on “passed”, that that ought to be regarded as a provision which has effect in relation to every provision hereafter part of the Act.

FRENCH CJ: It would be a curious thing to leave it in if it were of limited application ‑ ‑ ‑

MR WALKER: And declining with every ‑ ‑ ‑

FRENCH CJ: ‑ ‑ ‑ and having deleted a whole lot of other things in 1995.

MR WALKER: Yes. So the passing of an Act, in short, can be seen as a piecemeal exercise over the years. For those reasons we submit that that would apply to this case. There is then a highly specific savings effected, that is:

nor shall the omission from the Code of any penal provision in respect of any act or omission, which before the time of the coming into operation of the Code constituted an actionable wrong, affect any right of action in respect thereof -

which seems to be saying the failure of the Parliament in the Code to criminalise conduct will not affect civil liability for the conduct.

FRENCH CJ: That is looking back a long way though, is it not, 1913?

MR WALKER: Is it not, and that has obviously historical explanation. However, taken all in all that is a provision which bespeaks a plain intention which can be given practical effect in an appropriate case that the presence or absence of provisions in the Code criminalising or not certain conduct will not affect the capacity of a civil plaintiff to plead that conduct as giving rise, with or without other circumstances, to a remedy.

On the other hand, of course, savings clauses of having the operation like that, or like that to which Justice Hayne drew attention originally in the 1919 Act, are about not depriving anybody of a right of action by reason of enactment or not enactment. A question then arises as to whether it is intended to embrace what I will call a criminal plaintiff as opposed to an innocent plaintiff, and the answer, in our submission, ought to be yes. There is nothing in the text to distinguish between the criminal plaintiff and the innocent plaintiff. There is nothing in the text which provides for a carve out with respect to joint criminal enterprises.

For those reasons, the saving clause – section 5 in this case – the saving clause ought to be seen as a provision which warns against implied or interstitial abolition of what would otherwise be a plaintiff’s claim by reason of what is to be found, for example, in section 371A or section 378. Your Honours, unless there is something else your Honours wish to raise with me on that topic at the moment, may I seek, as rapidly as may be, to complete our reference ‑ ‑ ‑

GUMMOW J: We have reached Justice Kitto in Smith v Jenkins.

MR WALKER: Yes. Our reference to the various statements – I do stress, there is no possible way I can construe these as the leitmotiv, the principal propositions in what might be called a ratio, but nonetheless, these are statements we say which support the causation thesis we seek to advance. At page 403 of Smith v Jenkins 119 CLR 397 at about point 3 or so Justice Kitto takes what he calls a strong example. He supposes a change in the facts of the case before him, that:

the respondent in the present case had been an escaped convict travelling in the car in order to elude lawful pursuit –

Now, interpolating, that is obviously a strong example because it is a serious offence –

but the appellant had been driving him in all innocence –

So we have criminal plaintiff, innocent defendant –

the appellant would, I should think, have owed the respondent the same duty of care –

With respect, that can be explained in a number of different ways. It may be at this time Smith v Jenkins. It would be explained by reference to what the relationship between them was, namely, passenger and driver rather than co‑conspirators or co‑criminals. What his Honour there says, of course, must follow from Henwood. Could I go to the bottom ‑ ‑ ‑

GUMMOW J: It is the next paragraph, is it not, “The underlying reason”?

MR WALKER: Yes, it is.

GUMMOW J: I do not quite understand that.

MR WALKER: That is a reason which gives some support to the proposition we make about joint criminal enterprises, but it is perhaps at a lesser level of abstraction than we entirely rely upon. The notion of saying that the joint illegal conduct is the commission of a single wrong of course involves attributing to each of the participants in the joint criminal enterprise the actions of the others. There is, as is well appreciated, a desirable degree of artificiality in that attribution. It is desirable in the interests of criminal responsibility, but it is of course artificial.

That is why, for example, the matters raised with me yesterday by Justice Hayne, among others of your Honours, concerning provisions, both common law and statutory, with respect to modes and ambit of conduct of complicity of people in crime is something that cannot be avoided in considering a case of the present kind. In the following paragraph the approval given by his Honour to Lord Asquith’s famous examples from England’s case includes, in the second sentence:

the careless handling of the explosive charge was part and parcel of the illegal course of conduct of which each party was guilty.

On the next page, and contra our submissions to a degree, I should point out that his Honour says:

I must guard against being understood as thinking that each participant in joint wrongdoing takes the risk of negligence on the part of his accomplices in the course of the joint wrongdoing, for I do not think that the principle rests upon any idea of assumption of risk.

Your Honours I hope will have seen quite plainly that we submit that rather, because of the nature of the tort of negligence, it is appropriate to take into account what complicity in a joint criminal enterprise does say about the plaintiff’s assumption of risk, perhaps not, strictly speaking, the doctrine of voluntary assumption of risk, but a notion so cognate and with it and based upon the same basic notions of fairness or propriety of a claim being made as to, in our submission, have continued force.

Could I then take your Honours to page 419 in the same report. Justice Windeyer, at the very foot of that page, again by explicit reference to Lord Asquith’s comments, borrows the phrase “a step in the execution of the common illegal purpose”. On the next pages, 420 to 421, there are comments by his Honour, to which we have made brief reference before, in relation to the question of causation. Justice Kiefel in particular, with respect, raised with me yesterday matters germane to this. Halfway down 420 in the paragraph commencing “But this formulation” one sees signs of past battles which were, of course, not entirely quelled by 1970.

With respect, we still have to have causation in the law, particularly in the law that attributes responsibility for past events, and having causation with all its difficulties but given its essential role to play, of course principles should not get bogged down in phrases about causal relations, as his Honour there puts it, but assuming we are no longer bogged down and the wheels have traction, those are the grounds upon which I answered Justice Kiefel by saying cause should mean cause the same when it comes to liability, contributory negligence and the effect of your own willed criminal act.

Could I then take your Honours briefly to page 424, to which reference has already been made. Could I draw to attention as being contrary to the way we would put the case and the way in which we submit an appreciation of the approach, Nelson v Nelson, Leonhardt, Yango, IATA, might suggest is the proper one, where his Honour says at the foot of 424 that he does not take the view:

that in juristic analysis the effect of illegality is, from considerations of public policy, privative, a taking away of a right.

However, his Honour, echoing an earlier comment of his own in the same reasons, says –

Whichever way it be approached –

Then his Honour says something which, in our submission, respectfully, the Court should no longer endorse. He says –

the question is not whether a statute creating an offence also denies a remedy.

Now, with great respect to his Honour, that is an appropriate admonition, as it were, if one were aiming at the straw man of a doctrine that says it is simply a matter of construing a statute, that is the end of the story. You must construe the statute and from beginning to end of the process the statute, the criminal statute, in its setting will be the constant point of departure.

KIEFEL J: But you are construing the statute from the perspective of the common law and through the eyes of the common law policy. That needs to be borne in mind as well.

MR WALKER: Yes, including the matters, of course, that Justice Brennan brought to a head in Gala v Preston. Yes, we entirely accept that. Page 432, Justice Walsh, I simply wished to draw to attention ‑ ‑ ‑

GUMMOW J: You left out Justice Owen, 426.

MR WALKER: Your Honour, I have ‑ ‑ ‑

GUMMOW J: They are not neighbours.

MR WALKER: Yes. I hope your Honours will forgive me. I have not drawn to attention all the passages that are either literally or figuratively to be underlined in these reasons. I am trying to select just for those which might to be thought either to support or to be frankly against our causal thesis.

HAYNE J: Justice Owen’s reference to neighbours might be contrasted with Justice Kitto’s reference in the last five lines at 402. word is devoid of legal content.

MR WALKER: Yes, as I say, there is not unanimity. Your Honours, I was on page 432, Justice Walsh, and I simply wish to draw to attention, just after halfway, there the language is:

The relationship of the parties and the act of which the respondent complains –

that means the civil plaintiff complains –

were such that no right of action based upon the manner in which that act was performed could arise.

Unpicked, it applied to this case the relation, assuming against us criminal complicity, the relation of the taking and use, the people participating in the taking and using without consent of the motor vehicle, certainly is not such that no right of action based upon the extraneous, careless or drunken driving of one of them could arise.

It is related, obviously, to the principle, so‑called, of deciding these cases by reference to alternatively the impossibility or impropriety of a court embarking upon decisions as to what is reasonable in a patently unreasonable position constituted by criminal conduct. At 434 ‑ ‑ ‑

GUMMOW J: It is really at the bottom of 433, is it not?

MR WALKER: Yes. In the second‑last paragraph on page 433:

In my opinion, no right of action in negligence is given by the law in respect of the carrying out by one of the participants in a joint criminal enterprise of the particular criminal act in the commission of which they are engaged.

That is at a relatively high level of generality, we submit, at least consistent with what we are putting. But I need to draw to attention is that in 434, about point seven, following a reference to Bondarenko, his Honour says:

the answer to the problem presented does not depend upon deciding whether or not the injury would have occurred if there had been no illegal enterprise.

In one sense, of course that is in accordance with our proposition, that is, using the notion of a mere condition as opposed to cause – if you had not stolen the car and got into it, you would not have been in the car to have the crash. Well, yes, it does not depend upon that. Might I return to the question of the savings clauses? In the 1919 Act to which Justice Hayne drew attention, as well as the provisions his Honour has noted, section 59, that is numbered originally read:

Nothing in this Act shall take away or diminish any liability of the driver or owner of a vehicle by virtue of any other Act or at common law.

Section 99 of the 1974 Road Traffic Act, which was amended by Act 39 of 2000, section 41, reads as follows:

Nothing in this Act shall take away or diminish any liability of the driver of, an owner of, or a responsible person for a vehicle by virtue of any other Act or at common law.

The expression “or a responsible person for” was added in the 2000 legislation. It is a defined expression which would not include the driver in this case, we think, because it is a person entitled to immediate possession.

HAYNE J: But while the illegal use offence was in the Traffic Acts, there were savings provisions and it is the translation into the Code which presents the issue and the engagement of section 5 or not.

MR WALKER: Yes.

CRENNAN J: Then you have in sections 60 and 61, offences in relation to reckless driving and dangerous driving.

MR WALKER: Yes. Your Honours, we will try to put together, in convenient form, an answer, in effect, to Justice Gummow’s question to us yesterday about the negligence, et cetera, driving provisions at the relevant time. It has just proved a little more intractable than I had hoped. It may come this morning. It may not come until this afternoon. Could I now take your Honours to progress and properties in Craft 135 CLR 651.

I hope it is not unworthy to immediately take your Honours to page 655 to show what, in effect, by being in the minority view or the reason for the minority view, ought to be taken as having been rejected. That may not mean it is beyond exhumation, but Chief Justice Barwick, at about point 7, says:

It can properly and relevantly be said, in my opinion, that both the driver and the respondent were unlawfully using the hoist, and it was the manner of that use which was a cause of the respondent’s injuries: it was not a mere circumstance without the existence of which the injuries would not have been received. In language not so often used in these times, it was an effective cause of them.

Et cetera. Now, I stress, that is the dissenting approach which nothing since, in the jurisprudence of this Court, seems to have supported as a sufficient analysis of such a case. That appears to be still what one finds in the leading judgment of Mr Justice Jacobs. The passage is at pages 668 to 669. Your Honours will have noticed from the provision which is set out at page 665 that the illegality certainly affected the unfortunate plaintiff in this case because he was not a workman engaged in bona fide maintenance work and he did ride upon the hoist platform, et cetera. So was the person who allowed him on, the next sentence. Then the proviso meant that this applied only to those that were not designed or constructed in accordance with the regulations for raising or lowering men. So it was not impossible for hoists generically to be used for raising and lowering men but, not unreasonably, they had to be designed and constructed for that purpose.

However, the reasons of the Court – I will not read them extensively – that one sees from the reasons of Justice Jacobs at 668 to 669 make it clear – see the third sentence of the first full paragraph on that page – that they are required to be what might be called – our expression – an accurate and appropriate identification of the illegal act to be attributed to the plaintiff by the defendant seeking to disqualify the plaintiff from the civil cause of action. The way in which it was handled in this case was for the Court to say:

The act or omission of the hoist operator which was claimed to be negligent was not the act of allowing or permitting the respondent to ride upon the hoist but the act of negligently failing properly to operate the foot brake and control the descent of the hoist.

The point of that, of course, is that that could scarcely be seen in any way joint criminal enterprise, liberally or strictly understood, to be part of the responsibility of the unfortunate man who infringed the regulations by getting onto the hoist.

HAYNE J: But is that an effective cause analysis, that is, are we invited to go down what I think Justice Evatt described as the logical and legal labyrinth?

MR WALKER: No. It is simply asking the question which the Court requires today to be asked, as to whether – of course, we are here asking about whether the plaintiff’s illegality disqualifies the plaintiff from a cause of action. There, one asks what is it about the plaintiff’s illegality which is also said to be the foundation of his claim in negligence which is said – to jump ahead in the argument – to produce the incompatibility or contradiction which indicates that there ought to be an illegality answer.

Here, if it had been, of course, stepping onto the hoist, one can see, at least at first sight, the argument that says you cannot complain of what came about because you stepped on the hoist when you deliberately did so. It is very artificial in a case of industrial safety for the reasons that the various Justices have pointed out in relation to the policy behind industrial safety legislation. Indeed, the decision in Joint Coal Board v England addresses exactly that.

But in our submission, no, this does not involve going back for our hat, as it were, to debates best not had at a level of artificiality about causal analysis that the court has rejected. It is simply applying an appropriate identification of the Act, which is said inappropriately to be, as it were, on both sides of the record.

GUMMOW J: What is this emphasis upon the Court not being prepared to hear evidence at 668?

MR WALKER: Your Honour, that is, of course, controversial, that is, that has not gone without outright disagreement in the Court. We would respectfully submit that it is an approach or justification or reason which should play no part whatever in the pronouncement of when, if ever, when, as we propose, there ought to be an answer based on illegality to a claim in negligence.

The notion of a court not being prepared to hear evidence, as I put yesterday, cannot possibly have anything to do with laboriousness and cannot possibly have anything to do with fastidiousness. Laborious and awful exploration of facts is simply part of the judicial duty from time to time. Rather, the phrase ought to be understood, with respect, and may have a continued currency, with respect, if it is to be said rather that certain claims cannot, with propriety – an asterisk word needing explanation – be entertained. Content of propriety cannot be done because it would cut across, relevantly, criminal prohibition, or criminal sanctions.

FRENCH CJ: It would be incompatible with it?

MR WALKER: Yes. So that the propriety or the impropriety in question is to be identified as an incompatibility, that is, the court should not be seen, or the judicial system should not be seen to be speaking out of both sides of its mouth. That is the best I can do. Otherwise, in our submission, that language is not language which ought to be a contemporary explanation of the doctrine, such as it may be.

KIEFEL J: So do you say that it is not so much that the court cannot determine a standard of care in such cases, but that it will not?

MR WALKER: Yes. That is another of these controversies in that same area. I think I have already drawn to attention Mr Justice Mason at one stage, I think in Jackson, talks about impossibility. He says he agrees with Mr Justice Jacobs, and the very next Justice - reason is Mr Justice Jacobs who pointedly does not use the language of impossibility but, rather, of not properly to be done. It surely must be “would not”, not “could not”, for a start.

But, again, to be, I hope, appropriately respectful of the use of language of former Justices, “could not” should not be read literally. It means that it is not the function of a court to be involved in self‑contradictory, bordering on absurd endeavours such as positing the reasonable standards – recalling that Cook v Cook was still the law, or the law as pronounced in Cook v Cook was still the law – the reasonable standards that should obtain as between – this is between plaintiff and defendant, of course – two furtive, hurried safebreakers setting explosives for their nefarious purpose.

As we would prefer to put it, it can be seen that that is driven by the notion that it is not possible and not right, perhaps they are the same concept, to be using the critical notion of reasonable with respect to that which lacks in all respects any relation to reasonableness. That is why we say if bank robbers are proceeding as unobtrusively as possible to their intended site of depredation, there is absolutely no reason why they should not be expected to be careful by reason of duties they owe to other users of the road, obviously – innocent passengers or, as we would say also, guilty passengers.

Could I then next take your Honours please to Jackson v Harrison 138 CLR 438. Again, could I just start with the way in which the Chief Justice had put the matter at 445. The beginning of the second and third paragraphs are the passages to which I draw attention – the notion of “no narrow or pedantic view”, which is a piece of advocacy by his Honour, no doubt:

of the nature and scope of the arrangement between the parties when applying the principle . . . consequence to one of the participants of any act done . . . should not give rise to a cause of action.

There is a similar expression in the next paragraph to principle “extends to all acts done”. Could I then go, please, to 455 in Justice Mason’s reasons. Could I simply draw to attention, more or less in passing, that there is a comment at the foot of that first main paragraph, just at point 6 on the page, that, with respect, ought not to be adopted by the Court as anything like a complete guide. It is the converse, as it were. It is a companion to what Mr Justice Windeyer had said. His Honour said:

Nor is guidance upon this question to be found in the provisions of the particular statute which creates the offence because legislatures do not in enacting these provisions turn their attention to the availability of civil remedies.

With great respect, that well may be, not only then but now, an entirely correct sociological observation of what I will call the body of legislatures who turn their minds, but that surely is, if I may use this expression, with respect, to this particular Judge, that surely is a fiction, in any event. With respect, we are still bound, because we are administering the whole body of the law, we are still bound to see what does the law, the enacted provision say, what does it mean, what must it be taken as having by way of its meaning, as an effect on other parts of the law. At the foot of that page, however, there is an expression upon which, to a degree, we would rely. The caution there the inexactness, perhaps, of the expression. His Honour there suggests a formulation:

the denial of relief should be related not to the illegal character of the activity –

We interpolate that there is difficulty perhaps with that observation –

but rather to the character and incidents of the enterprise and to the hazards which are necessarily inherent in its execution.

We would comment, well, surely, it is only those matters which are illegal that trigger the requirement to be making that assessment at all and so the illegality, surely, never departs from the exercise, but otherwise that is in accordance with what we call a causal approach. On 456 there is then that expression, I do not need to say anymore about it, that I have already referred to when answering Justice Kiefel, the impossibility. You see, then, the agreement with Justice Jacobs in the next paragraph. The reference footnote (62), with great respect, it may be on examination that the reference should be to 668 rather than to 669. We just offer that as a suggestion for a readier reading of that passage in Justice Mason’s reasons.

Justice Jacob’s, at 457, the second‑last paragraph, there is that reference to whether you can properly establish and declining to permit and I will not say further about that. The last paragraph on 457 there is a reference to:

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.

That must be read as meaning the nature of the criminal activities in which they are engaged. Then there is a reference to “safe blowers” and then over the page the phrase “this invidious inquiry”. Could I then take your Honours please to page 460 simply to note in this catalogue what has already been mentioned during the hearing. There is that contrast drawn by his Honour to which reference has already been made differentiating, at least tentatively, between the civil consequences of the illegality of the joyride and the civil consequences of the vehicle still taken and still being used “days, weeks or months later”. That is in the middle of the page.

It is to be recalled, of course, that on the facts of this case where the drivers were both unlicensed, one for what is called breach of criminal provisions the other for breach of traffic provisions, so it has got something to do with their driving it has to be said, nonetheless, the offence in question was each knowing the other to be unlicensed, lying to their parents to borrow the car, et cetera, for what is called a jaunt to Port Augusta. At page 461 those are facts which yielded from Justice Jacobs this very outright factual decision, last two sentences:

The question is – what bearing have those facts –

the lack of licence –

on the standard of care reasonably to be expected of the driver? The answer is – none whatsoever.

With respect, there is resonance of that approach here. Why on earth, if you have taken and used a car contrary to the law, why on earth should you not be subject to exactly the same standard of conduct as applies to all other drivers on the road? The same must apply to unlicensed drivers.

Finally, your Honours, could I come to Gala v Preston 172 CLR 243 the facts of which are found relevantly at page 245. I will not be going to the facts, but they are, how shall I say, somewhat hair raising. They are at 245. I have already made sufficient reference to 250. Could I take your Honours to, just to note that it is at 252 and 253 that one sees the significance in the reasons, I will not dwell on it any more, of the notion of proximity and the holding in Cook v Cook, the sliding scale of standard, which renders appropriate a reconsideration by this Court of these matters.

At page 263 in Justice Brennan’s reasons, could I simply draw to attention the second‑last paragraph on that page about point 8. In that iteration of his Honour’s ratio, though there are variants throughout these reasons, his Honour uses this expression:

does not owe the plaintiff who is his joint participant in the commission of an offence a duty of care in the doing of the act which causes the plaintiff’s damage or in the making of an omission which would be held to cause the plaintiff’s damage were it not for his participation –

et cetera. With respect, using, as his Honour appears to be doing, the word in its ordinary sense used in the ascertainment of tortious liability, because that is what he is talking about – causation of the injury – is entirely in accordance with the way in which we put the case.

Could I take your Honours then please to pages 270 to 271. It is of course, with respect, correct at the end of that paragraph about point four, that the whole point of the doctrine is because of the plaintiff’s conduct. As his Honour culminates that line of reasoning:

A defendant does not avoid liability to an innocent plaintiff by showing that the negligence occurred in the course of the defendant’s commission of a crime.

I mean, so much for the court not wishing to look at the civil consequences of the commission of a crime. It would be utterly self-defeating and totally incompatible with the normative influence of the criminal law for the civil law to take that approach to a criminal defendant. It is too silly for words. We only draw it to attention because of a point we wish to make later concerning what his Honour says about the effects supposedly on the normative influence of the criminal law of committing a criminal plaintiff to recover. If I could just flag that at the moment.

On page 271 I do not need to do anything other than note that that is the reference to the contrast between the burglar and the swindler that I drew to attention yesterday. That paragraph ends at about point 3/4 on page 271 as:

It is a question of fact whether a breach of the criminal law is material to the relationship out of which a duty of care is said to arise.

Now that, of course, is not on all fours with what I will call a causation inquiry but it will involve one and it is certainly, of course, a question of fact and none the worse for that. Then at the foot of the next paragraph, the last two sentences starting:

It is only where the admission of a duty of care impairs the normative influence –

et cetera, one finds one of the expressions by his Honour of the ratio in his Honour’s reasons which has been taken up, obviously, and promoted as the proper doctrine in the respondent’s written argument in this Court.

Could I simply flag at 272, about point 3, his Honour makes the point, with respect, correct, as a matter of social expectation, about industrial safety legislation, that:

the admitting of a duty of care would ordinarily reinforce the normative influence of the law creating the offence: far from condoning breaches of such laws, the admitting of a duty of care would frequently enhance a defendant’s incentive to observe them.

Quite so, but, with respect, what later falls out in relation to the result in this case so far as it was driven by the consideration of impairment of the normative influence of the criminal law perhaps gives an unbalanced attention to the plaintiff’s position. So it is one thing to punish, as it were, a plaintiff by denying him or her civil recovery from an act in which they have been criminally complicit, but is most odd, bearing in mind that the complicity is by definition with the defendant, is the defendant’s responsibility civilly for the act which both of them are criminally responsible for, which drives, gives rise, provides the occasion for this doctrine to be considered at all. It seems most odd, with respect, that in terms of considering any effect on the normative influence of the criminal law, one would say, as Henwood requires, that the criminal plaintiff can recover and will recover from an innocent defendant but will not recover from a co‑criminal defendant and that, with respect, is the weakness of ‑ ‑ ‑

GUMMOW J: Another problem is this term “condoned” ‑ ‑ ‑

MR WALKER: Yes. May I come to that separately, your Honour?

GUMMOW J: ‑ ‑ ‑which is used throughout these passages.

MR WALKER: It is. In short, our argument is that it can be seen as a particular way of viewing the effect of one way to impair – I stress, one way to impair – or be incompatible with or to trespass on the function of the criminal law. It is only one way and, with respect, the language of condonation which his Honour explains by reference to it impairing the normative influence, perhaps contrary to a colloquial understanding, that, with respect, is part of but by no means the whole of what we intend to suggest by the proposition, that there should be no role for this so‑called defence unless there is a contradiction of the kind that I will elaborate slightly very soon.

I wonder if I could just give your Honours a cross‑reference in relation to this impairing of normative influence. Depending whether you are looking at the effect on the plaintiff or the effect on the defendant, there is a somewhat brisk disposal of such an argument to be found in the reasoning of Mr Justice Mason in Jackson v Harrison, the case before, as it were, at 138 CLR 453 in that first paragraph on that page. With respect, it is a criticism which will be good not only in areas like industrial safety but across the board. We have one more comment to make about the notion of impairing ‑ ‑ ‑

GUMMOW J: I am sorry, what do you get out of page 453?

MR WALKER: There what his Honour points out is that you could just as readily argue the opposite effect. His Honour starts off:

If a plaintiff engaged in the performance of an illegal activity who is injured through the negligence of another may recover damages for his injury from that other, even though the latter’s conduct involved no illegality –

That is Henwood –

there is no evident reason why a plaintiff should be held to be necessarily disentitled when he is injured in circumstances in which he and the defendant are both engaged in the commission of an illegal enterprise. Although the two cases are different, the drawing of a distinction between them is to place the innocent party –

That means the defendant –

at a disadvantage compared with the wrongdoer –

That means the defendant in the second case –

The elimination of civil liability between the participants in a joint criminal enterprise cannot be sustained on the ground that it is a deterrent against criminal activity –

We interpolate, after all, there is criminal activity by both plaintiff and defendant –

it might with equal force be put forward as an inducement to such activity.

With respect, it is not to be considered that his Honour is seeing it as a forceful argument. It may be that it is close to zero force that his Honour is proposing. But, with respect, the logic is correct. There is criminality on both sides. Sparing liability is as readily to be seen as an incentive as abolishing liability might be seen as a disincentive. It is a zero sum game, if one studiously ignores the existence of insurance and other government schemes.

In any event, the realities of the situation – my final point about this is – the reality of the situation is that surely in any real terms, practical terms, it is even less likely that forethought will be given to actual would‑be participants in crime jointly to the effect on the civil liability of one to the other in case of mishap than notoriously is given by them to the rigours of imprisonment. That is not to say that deterrent value is not of great significance, see Veen (No 2). It is to say that one should hesitate before erecting a doctrine on the basis of how might people behave. That, in our respectful submission, is inappropriately artificial.

Your Honours, we have drawn to attention in our written submissions some comparative law, as, with respect, our friends have as well. I do not wish to go to it specifically except in one respect and otherwise to provide your Honours with two updating references. The first point I wish to make is in relation to the case noted by the Law Commission in the United Kingdom, Gray v Thames Trains Ltd [2009] 1 AC 1339. All I wish to do is to draw to attention the way in which Lord Hoffmann suggested the matter in terms which do generally support the causal requirement. See page 1371, paragraph 32, and the passage starting at 1377, paragraphs 54 to 55.

GUMMOW J: Where does his Lordship end up on this narrower and wider view that he postulates at 32?

MR WALKER: The narrower view. That is the preceding page, 1376, and it seems at paragraph 51 through paragraph 53 is the favouring of what are called wider versions, notwithstanding the difficulties of aspects of it identified by his Lordship.

KIEFEL J: Is one of those problems its proximity base?

MR WALKER: Certainly one of the problems is causation. See about letter F on page 1376.

GUMMOW J: His Lordship tends to get attracted by notions of causation, solving tort problems. We saw that in one of the medical negligence cases we had to look at.

MR WALKER: Yes. Now, I have drawn it to attention because that was seen in the 2010 cogitations of the Law Commission which followed, and I have not been able to trace all the intervening steps, followed the 2001 consultation paper. The existence of Gray, the principles to be taken from Gray, was seen as a reason for the commission not to propose legislation. With respect, there may not be much this Court should or could take from that piece of history.

GUMMOW J: What do you say about Lord Hoffmann’s treatment of Holman v Johnson at paragraph 30 which concludes with the end of paragraph 30 presenting a “dilemma”? Is that dilemma also present in tort cases?

MR WALKER: Yes, and for the reasons that I have put concerning this notion of impairing the normative influence. It depends upon a, we would submit, blinkered focus on a plaintiff and leaving studiously out of account somebody whose criminality is not incidental but is vital to the occasion to consider the plaintiff’s criminality, namely, the defendants.

FRENCH CJ: That is the “cuts two ways” observation of Justice Mason that you took us to.

MR WALKER: Yes, which rather suggests that this ought not to be a driving justification. The justification should simply be that the body of the law, the whole body of the law, should not contain within it the contradictory elements. The contradictory element we propose in relation to the tort of negligence does come from a definitional aspect of a plaintiff’s claim in negligence. A definitional aspect is that something has been done to me which should not have been done. Now, that could also be said as true of tort. Concentrating on negligence, the normative content is that has been done, assuming duty, in a way less than with reasonable care.

Now, if the very thing, including the way, such as reckless driving, or driving with a drunken companion, has been sought criminally by the plaintiff as part of the joint criminal enterprise promoted or, in fact, actually in part done, then it strikes at the very basis of the plaintiff’s necessary position for success in a negligence claim because a necessary position is “Something has been done to me which I say should not have been done”. To which the answer is, “But you set out to do that very thing. You are the one who, with your companion, the defendant, stole the car to race through the streets. You have been injured by the car going off the road as you raced through the streets”.

HAYNE J: That approach confines consideration to what it is that the parties have agreed should be the confines of their endeavour.

MR WALKER: In that example, as I have enunciated it, yes. That is, with respect, a fair description, but may I ‑ ‑ ‑

HAYNE J: And why, in the civil law, should we take a different view from that which obtains in the criminal law which goes to what is reasonably foreseeable?

MR WALKER: In the example, certainly, the way I enunciated it, that might appear to be what we are putting, but no, I think, as I said yesterday, no, there is a penumbra or broader ambit. That is where the reference to the hazards of the joint criminal enterprise is an appropriate one, to which I drew attention earlier. No, I do not mean to say it is only those which you have actually intended by your own volition, criminal volition, to compass, which can be identified as those which might, if right upon you then in civil case, disqualify you from civil success. It must embrace, obviously, the unlooked for, but foreseeable hazards, otherwise there would be an incoherence, I accept.

BELL J: Conceptually, how does it disqualify you from civil success in a driving case where there is a relationship of driver and passenger? Is it by preventing the erection of a duty, having regard to that which was within the contemplation of the parties at the time they entered into the joint criminal enterprise, or is it a duty exists by virtue of the relationship of driver and passenger, but for reasons of policy, recovery is precluded?

MR WALKER: It is moments like these that one thinks of that sentence I cannot rely upon, in Mr Justice Windeyer’s reasons, but your Honours, it is probably the former, subject to adding in the role of voluntary assumption of risk, language redolent of which you will find in our written submissions. There is, when one ventures upon the criminal endeavour of, as in the cases, robbing a man, taking his car keys, going for a joyride, or going off to commit and then escape from robberies in that car, there is, as to use one of the phrases, part and parcel of the endeavour the possibility that though you never intend to end up crumpled against a telegraph pole, that which you are voluntarily assuming, namely excessive speed and evasiveness, or thrill seeking – which was notoriously and obviously again by excessive speed, or erratic steering – all of that, in our submission, must, to coin a phrase, come along for the ride.

So they are unlooked for in the sense that no one in their right minds would be wanting it to happen, but anyone in their right mind looking at the situation was saying but you are courting just that. That is why, to return to the way I put it yesterday, one would not seriously entertain in court a civil plaintiff joint criminal saying “Yes, I am complicit in wanting to drive fast enough to get away from the policeman in their motor cars, but not so fast as to have endangered me with the consequences of the materialised risk of me being quadriplegic”. That is, it is an impossible statement to entertain at a level of basic contradiction.

It is not a matter of fastidiousness in the court. It is just a matter of observing that, in effect, that plaintiff cannot have it both ways, cannot, as it were, be a person who is guilty for intending to carry out conduct which has the ambit or penumbra of risk in question and also then complain against the person with whom you are complicit criminally, complain of that being done civilly. You cannot set out in one direction and then backtrack when a risk that ought to be understood as part and parcel has fallen in.

In our case, in our submission, the particular facts, significantly including “please slow down and let me out” but everything preceding to which we have made reference in our written submissions – “I want to go home” – there was no issue here of a joyride, no issue of any crime other than the taking and using, no complicity in the drunkenness, et cetera. For those reasons, in our submission, if that be the proper approach, we would succeed in this case.

HAYNE J: Just to continue that inquiry a moment. Can the inquiry be expressed in terms drawn from Leonhardt as being whether the legislative purpose of making illegal use a crime will be fulfilled without regarding those complicit in the offence as not owing a duty of care one to the other in the manner of the use?

MR WALKER: That is one way of approaching it, yes, your Honour.

HAYNE J: Are you able to proffer, either now or perhaps in reply, any example in connection with the driving of a motor car and commission of offences in the course of driving which you would say would satisfy positively the test described in Leonhardt, or is there no such case?

MR WALKER: By “positively” your Honour I think is saying where answers will be given which will deny the ‑ ‑ ‑

HAYNE J: No duty of care.

MR WALKER: Deny the duty of care.

HAYNE J: Just so.

MR WALKER: Yes. May I ponder that?

HAYNE J: Of course.

MR WALKER: At first sight, may I say this, and it returns to the normative influence point. Surely one cannot find anywhere in the criminal law anything the normative influence of which might be to encourage careless driving. That is easily stated.

HAYNE J: Sure.

MR WALKER: In fact, there are explicit statements to the contrary. By and large, it must be a socially good thing that people drive carefully rather than otherwise. There are no real exceptions to that, except those which recognise emergencies, and even there there are duties. For those reasons, at first sight, it is a remarkable proposition that there is a contradiction between what are the set of explicit criminal prohibitions against dangerous driving and civil responsibility for negligent driving to suppose that there would be ever any incoherence or contradiction between the civil and criminal law.

It is not like Sullivan v Moody, it is not like Koehler v Cerebos. Here there is no conflict of duty and duty or a prohibition in one case and an obligation in another. There is no such conflict. Nor are we by civil process trying to make a profit out of our own wrong. That would be a contradiction of a kind. The criminal law says you should be punished for your wrongdoing. The civil law could scarcely be saying you should make a profit out of it. It is, with respect, quite wrong to see compensation for damages as anything in the nature of a profit. That is so long as they are compensatory damages.

Of course, there is not the highly specific contradiction whereby, as has been attempted in various of the United States in malpractice of criminal advocate cases, there is no attempt here by someone who remains convicted to say, “Give me damages to compensate for not being able to go to work while I am in prison”, et cetera. That also is a contradiction. The criminal law says you must go to prison, that is what the law requires. How could the civil law say this is a wrong outcome for which somebody should compensate you.

None of those hallmarks of contradiction or incoherence appears in this case and it cannot be said that there is any policy to be discerned in the statute that would by adaptation meet the suggestions of Justice McHugh and Justices McHugh and Gummow respectively in Nelson. Simply to give the reference to the passages Justice Gummow noted yesterday, 184 CLR 538 at 613 and 189 CLR 215 at 229.

KIEFEL J: But the purpose or policy evident in the statute does not necessarily answer the question whether or not there remains a policy of the common law to be applied.

MR WALKER: Not in itself, but the first thing to be said is there ought ‑ ‑ ‑

KIEFEL J: I mean it may be part of the answer, but it might not be the whole of the answer.

MR WALKER: No that, with respect, may be right. That is it may be a policy of the common law, not itself to be seen from any particular enacted provision that there be an overall coherence. That is a judicially made doctrine. But when it comes to policy at the level of the social outcomes desired from the application of the criminal law – enacted criminal law – in our submission it would be inappropriate for the courts to, as it were, set themselves possibly up as competition or critical commentator upon the way that Parliament has expressed the mischief to be met and the way in which it is to be met.

Thus, for example, if Parliament has provided for a certain set of penalties which does not accord with a judge’s personal view of how serious such offending may be it would be inappropriate, under a common law banner, to make that particular offence, when relied upon for an illegality answer to a negligence claim, as it were, of a more serious character for the purpose of a proportionality analysis than Parliament has provided.

KIEFEL J: But the inquiry of the common law might be, well, having had regard to the statute and the purpose and whether or not its penalty or whatever is meant to be the measure of the deterrent, nevertheless, does the policy of the common law anything more to say that is relevant in the area of the common law’s sphere of function?

MR WALKER: We submit it is exhausted at the level of ensuring that there is not a cutting across by the civil law of the criminal law, that is of the common law negligence, I should say.

KIEFEL J: The coherence issue?

MR WALKER: Yes. I keep saying “civil” and I should be always understood as meaning common law negligence because obviously statutes have to be construed together, that is a different thing, but the common law negligence should not and cannot cut across any enacted law but, in particular, in this context enacted law about criminality. That, we submit, really exhausts what you might call, at the highest level, the policy of the law as a matter of common law.

KIEFEL J: Have you looked at the approaches of other jurisdictions to policy questions apart from the English?

MR WALKER: Yes, because, in a sense, there could be, there might be no end of that. We have referred to the article by Prentice which takes the matter up to, I think, 1995. Could I by way of, first of all, ease of reference to the New York case which is referred to in that article, hand up a copy lest your Honours do not already have it. That is Barker v Kallash 468 NE 2d 39 (NY 1984). It suffices to say there are discussions of policy but not in a way that takes the matter any differently from what has been seen in all the jurisdictions which treated this as an aspect of ex turpi causa or a disapproval of founding anything upon crime.

There is also by way of update, though no change, the statements to be found in Manning v Brown 689 NE 2d 1382, another decision of the Court of Appeals of New York and from 1998, a not entirely different but somewhat different approach, from the Court of Appeals of Michigan, Poch v Anderson 580 NW 2d 456. The Canadian decisions have been referred to, the differences are apparent. Those are my submissions.

HEYDON J: Mr Walker, can I just raise a couple of crude ideas with you and you can tell me what is wrong with them. In a world in which defendants in motor car cases had to actually pay the damages out of their own pocket and there was no private or state insurance scheme, no doubt the deterrent effect of the criminal law and the deterrent effect arising from the fear of having to pay those damages would march entirely in step, but ordinarily there is no deterrent effect from the fear of having to pay large damages because the matter is covered by insurance.

MR WALKER: Well, in relation to motor vehicle conduct, yes.

HEYDON J: It would depend on the precise state of affairs in Western Australia, but the scheme would often involve the government standing behind the insurance companies if one of them collapsed, and even if the government did not stand behind them and an insurance company like HIH collapsed, the chances are the government would set up some sort of backup.

MR WALKER: Again, for motor vehicles.

HEYDON J: Now, is it relevant to ask, unfortunately from the point of view of this plaintiff, if she fails to recover she gets social security from the State paid for by the government and, therefore, by the taxpayers. If she succeeds, her condition is no doubt miserable but she has millions of dollars to raise the level of her comfort. If those millions of dollars come ultimately out of the pockets of either those who pay insurance premiums or the government, if the insurance company fails, is it relevant to consider that ultimately the burden of a criminal act is going to be borne primarily by other citizens, rather than the defendant?

MR WALKER: No.

HEYDON J: Not relevant at all?

MR WALKER: No. Not relevant at all because the doctrine we are arguing and your Honours are deciding cannot sensibly, with respect, be confined to and, therefore, ought not to be materially shaped by its deployment in the field of motor vehicle delinquency. If there is a principled, as we submit, with respect, there is, notion that the common law of negligence cannot be incompatible with the criminal law then that is because it is the criminal law in all its aspects, be it theft from your employer, dangerous use of a motor vehicle, et cetera, et cetera.

Motor vehicle accidents being so prevalent and the damage being so awful, there are historically, but only historically and politically, that is not as a tenet of the common law, in existence schemes of the kind your Honour has referred to with fallback expedience of the kind your Honour refers to. None of those are matters which, in our submission, are appropriate to affect the way in which one would pronounce a doctrine that must apply outside the motor vehicle area. Alternatively, the ‑ ‑ ‑

HEYDON J: There are many areas in which you can insure against the commission of torts other than torts through motor cars.

MR WALKER: And in many such policies, however the plaintiff frames the claim, the insurer will be entitled to disclaim liability if the facts show worse than negligence. Thus, I am not aware I can get insurance against delivering king hits to strangers at the pub.

FRENCH CJ: I think there is a right – for example, under the West Australian statute, if my recollection is correct, there is a right of personal recovery or indemnity on the part of the insurer against the driver who is unlicensed at the time of an accident which gives rise to liability.

MR WALKER: Yes. There are various comebacks of various forms. There are, of course, notoriously, also various – and one might say comprehensive – inadequacies of governmentally provided system. One matter we would make about what we say are the historical and political, in one sense, adventitious aspects of the alternative access to either support or the real source of the funding for damages raised by Justice Heydon is this.

The availability of insurance against various liabilities that one may create against oneself in ordinary life has hitherto not supplied an overtly or explicitly articulated reason in this Court to either more readily create a duty – find a duty, I should say – or to affect in any way, up or down, a standard of care and, with respect, for good reason because there is an ebb and flow to be seen in my own jurisdiction, New South Wales – not confined to it – in relation to the availability and generosity of various schemes of State‑sponsored insurance, including the ersatz insurance of compulsory schemes of contribution, et cetera, et cetera, with more or less government support.

Second, you cannot simply equate the same consolidated revenue out of which pensions and social security are paid with the very often special statutory funds out of which quasi or pseudo‑insurance funds are administered in relation to motor vehicle accidents.

GUMMOW J: Looking at New South Wales by way of comparison for a minute, how would the Civil Liability Act in general terms impact on your success if this was a New South Wales case? There is a special provision.

MR WALKER: Yes, there is. I do not think it would help the defendant because the defendant is complicit.

KIEFEL J: Is that section 54?

MR WALKER: Yes. Section 54(1) is much broader than a causal connection. It is select in material terms:

the injury . . . to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence –

So there are quite a few tradeoffs being done here. There is the notion of serious offence, which is defined, and then we have simply “at the time of, or following”. Then you have got in (b) the causal equivalent, which is “contributed materially” to the injury or the risk of injury, and then in subsection (2), for cases of joint criminal enterprise, which is what this case concerns, the matter is completely disapplied in any event.

HEYDON J: Section 54(2)?

MR WALKER: Yes.

HEYDON J: You must have a different one. I have Reprint No 4.

GUMMOW J:

This section does not apply to an award of damages against a defendant ‑ ‑ ‑

MR WALKER:

if the conduct of the defendant that caused the . . . injury or damage concerned constitutes an offence ‑ ‑ ‑

HEYDON J: Yes, I see.

MR WALKER: I am so sorry, your Honour. One sees that, I think differently from definitions for other purposes, a serious offence is six months or more imprisonment. Your Honours, could I add one more reference to savings clauses? There is another one in the Code in this case, section 737, conviction “does not affect” cause of action.

HAYNE J: “Prosecution or conviction does not ‑ ‑ ‑

MR WALKER: Yes.

HAYNE J: But it says nothing about conviction, I think.

MR WALKER: No, I am adding it because it is a savings clause. I do not want to say anything further about it.

HAYNE J: Yet or at all, Mr Walker?

MR WALKER: At all, your Honour.

HEYDON J: Did you say 737?

MR WALKER: Yes, your Honour. May it please the Court.

FRENCH CJ: Yes, thank you. Yes, Mr Watson.

MR WATSON: Your Honours, I am not as brave as Mr Walker in that respect, and I am afraid those matters raised this morning by your Honour Justice Hayne and by your Honour Justice Gummow are matters upon which I would need to reflect. I will address section 371A as best I can, but I would beg the opportunity to put some sort of response to those matters in writing.

FRENCH CJ: Yes, I think we will give you that facility, Mr Watson.

MR WATSON: Thank you, your Honour. Given that it is common ground that the inquiry must commence and be conducted under the statute, may I take your Honours to two parts of two judgments where there is reference to the technique of construing the statute. The first is in Smith v Jenkins (1970) 119 CLR 397. This is a portion of the judgment of Justice Windeyer at page 424. Some attention was drawn to this particular passage yesterday. It is towards the foot of the page, about point 7, the first sentence in, “To ask” – I will not read it aloud – to the foot of that page. Your Honours, that is the applicable rule for which we would contend and the applicable rule of construction for which we would contend.

GUMMOW J: But, as Justice Kiefel has been putting it to Mr Walker at several stages, we are not talking about the statute taking away something. We are talking about the policy of the statute impacting this part of the policy of the common law.

MR WATSON: Yes. I come then to the second judgment.

GUMMOW J: Which is something not touched upon by Justice Windeyer.

MR WATSON: That is true. May I come to the second judgment ‑ ‑ ‑

HAYNE J: Just before you do, I think what Justice Windeyer says there would also stand in marked contrast with what Pollock was writing, even the late 19th century and early 20th century, which discountenanced quite strongly the notion that there is a general rule of the kind which seems to underpin what his Honour was saying in Smith v Jenkins at 424. I think you go back to first edition Pollock and see it continue right through, that though there you will find statements that there is a general rule, they are not right.

MR WATSON: May I take your Honours to Nelson v Nelson (1995) 184 CLR 538, but more particularly, to a part of the judgment of Justice McHugh to which attention was drawn yesterday at page 612, right at its foot, and the reference there by his Honour to “First” and the reference to “sanction” and the reference to “proportionality”. I would read, but not aloud. Your Honours, the second matter raised by Justice McHugh on page 613 provides guidance about interpretation of a statute in the way that your Honours just asked me. It is an advance, if one likes, on what had been offered by Justice Windeyer, in particular, looking at the inferences and the like available.

FRENCH CJ: It may be that in some cases a statute will either expressly or by necessary implication displace a common law right of action, and I think that might be embedded in the last sentence in the last complete paragraph, “Leaving aside cases where the statute makes rights”, et cetera, but otherwise one is looking at the common law principle.

MR WATSON: His Honour says inferences are permitted to be drawn. We rely upon that. May I show your Honours something about that judgment? On page 612 immediately above the paragraph to which I took your Honours there is a paragraph commencing, “If courts withhold”, et cetera and the reference there is to sanction. The reason why I draw your Honours’ attention to that, that defines the sanction to which his Honour refers at the foot of the page. The sanction is defined as one:

that will deprive one party of his or her property rights and effectively vest them in another –

Your Honours, that is important in this case because it seemed to be said against us that we were asking for an interpretation which would mean that section 371A, if applied that way, imposed a sanction. With respect, it does not. I will explain why.

The concept of sanction is inapplicable in these circumstances because sanction by itself suggests something by way of punishment or, as Justice McHugh said, something by way of removal of property rights. That is not this case. On our case there is no duty of care, there is no property. It is the plaintiff or appellant asking for a subvention, something in their favour to be found. Nothing had been removed. The sanction concept does not work. Damages for negligence only become payable where two parties are in a relationship, such that gives rise to a duty of care which if breached causes an injury. On our submission that does not arise here. The parties were not in that relationship. There was no property right.

Can I give your Honours an example? The Western Australian motor car scheme depends on fault. If a careful driver, driving alone, struck a kangaroo and suffered terrible injuries, he or she would have no recourse. A more stark example, a passenger in that same car would have no recourse for damages. That may tie in with ideas raised by Justice Heydon in the exchange at the end of Mr Walker’s argument. But, at the moment, I put it no higher than no property right has been removed. No sanction has been imposed.

BELL J: You say there is no relationship and that is on a view that because the parties were engaged in a joint criminal enterprise it prevents the direction of a duty?

MR WATSON: Yes.

BELL J: Another way of looking at it is to see that one conventional relationship that the law recognises in this area as giving rise to a duty is that between the driver of a vehicle and the person who is travelling in it.

MR WATSON: That is true, but it would not be appropriate to address it that way, given the known facts that the relationship came about in these circumstances. Putting it another way the common law here deprives the right of action. It does not facilitate a cause of action, but deprives a remedy or any part of a remedy.

The reference on that same page in Nelson v Nelson to proportion or proportionality we would respectfully rush to add to it, but that is not a question of seriousness in terms of, for example, here, a tort‑related injury. It could not possibly turn upon whether a wrist was fractured rather than sprained and although here the appellant has a very serious injury that does not come into it. The question of proportionality relates to the seriousness of the offence. Your Honours, much of the appellant’s submission in this Court has been inclined to direct attention to the activities of the defendant, rather than the plaintiff – the driver, rather than the passenger.

We would respectfully submit that that shift in focus is wrong. Here I feel the need to answer something which occurred in the discussion over the case of Gray v Thames Trains Ltd [2009] 1 AC 1339 and, in particular, the reference to a dilemma at the end of paragraph 30 of the opinion of Lord Hoffman. If your Honours have that reference, at about point G, Lord Hoffman was making the point that the ex turpi concept is based upon a group of reasons which vary in different situations and then through the distinction from, we would respectfully submit, tort law to the field of contract and the reference which is a quote from Lord Justice Beldam in Cross v Kirkby points of a dilemma where the denial of relief would confer an unjustified benefit illegally obtained on the other. There is no such thing here. I pause there to add.

GUMMOW J: What you just said may in some way be reflected in what Justice Toohey was saying in Nelson v Nelson which tends to be overlooked. At page 597 in Nelson v Nelson, the first complete paragraph, his Honour says:

Although the public policy in discouraging unlawful acts and refusing them judicial approval is important, it is not the only relevant policy consideration. There is also the consideration of preventing injustice and the enrichment of one party at the expense of the other.

You say the latter enrichment, which is involved in this dilemma idea, does not play in this case, your immediate case.

MR WATSON: That is so.

GUMMOW J: But, do other things play, apart from in the public policy other than the discouragement of unlawful acts?

MR WATSON: Well, of course and they must and that would be reflected in cases like Progress and Properties v Craft. Your Honours, I have not finished. If I may take you back to page 612 of Nelson v Nelson. I want to show you a further paragraph just immediately above the last one to which I took your Honours. The Tinsley case has been much criticised and not just here. Here his Honour Justice McHugh was speaking about the conferral of a broad judicial discretion which he goes on to describe as an unstructured discretion.

One of the propositions which lies behind that, which I am about to put to the Court, is an attempt, as it were, to draw the matter back to some sort of principle or rule which might control a discretion or, at least, define those factors which are to be taken into account fairly closely. I will refer to unstructured discretions later in these submissions. Can I take your Honours to the statute, section 371A. I fear some of these matters are repetitive, but nevertheless, the words are so simple. They relate, relevantly, to using and taking.

GUMMOW J: I am sorry to interrupt you. Just before we leave Nelson v Nelson, Justice Toohey at 596 also referred to what Lord Nicholls had said in Tinsley in the Court of Appeal which did not find favour in the House of Lords, but is it not what Lord Nicholls was saying there something we have to grapple with here?

MR WATSON: The weighing is a necessary feature. That is why I offered your Honours two introductions to the construction of a statute, one which may, in its own form, seem fairly absolute from Justice Windeyer but the other of Justice McHugh, which necessarily involves drawing inferences where available. When I come to Gala v Preston, that is the most recent case where this kind of weighing process was conducted. It should not be a weighing obviously, with respect to considerations, for example, of the seriousness of the effect to the passenger. It is dealing with the seriousness of the effect of a breach of that part of the criminal law.

Section 371A relevantly applies to using and taking, both of those factors are relevant here. It is common ground that it is a serious offence. The section itself, as has been pointed out by your Honour Justice Kiefel does not expose any limits or requirements set around concepts of recklessness and there is no distinction drawn. For example, in respect of joyriding, all matters fall under the one heading and here it is “using and taking”.

We have been, I think, told we are confined to our case in the trial court in the intermediate appeal. We put the case on the basis that the criminal act was under section 371A. With respect, we stand by that. It is the criminal act of the passenger, the plaintiff, the appellant, with which we are concerned and that was it. It was occurring at the very time of the accident.

FRENCH CJ: Has there been any exposition, by the way, in West Australian courts of the concept of “using” which seems not to not be congruent with the notion of driving?

MR WATSON: Yes, it seems to be broader than that and I regret to say I had simply assumed that. If your Honour wanted us to look for that we would do it at the same time we attended to other matters.

BELL J: At some stage, do you propose dealing with the trial judge’s findings concerning the repeated requests directed to the driver to let her out of the vehicle?

MR WATSON: I will. May I come to that now in a slightly roundabout way. I wanted to, at this point of the submissions, take your Honours rather closely to the facts established and especially as they were propounded in the intermediate appeal court. Could I take your Honours to the appeal book, particularly the judgment of Justice Buss, commencing at page 86. Your Honour Justice Heydon drew attention to this yesterday. In paragraph 78, his Honour spoke of the critical facts and circumstances. Again, I do not wish to read them aloud, but each and every one of those particulars down to paragraph 78(h) is important.

One of them, subparagraph (b) reflects the seriousness of the offence. Another, subparagraph (e) reflects the fact that the appellant did make a choice. It said that she could have left the vehicle had wanted to when the driver took over control. Subparagraph (f) is important. Intoxication was common ground. The very first paragraph of her Honour Judge Schoombee’s judgment refers to the fact of intoxication. The fact that the appellant was left in the position where she was unable to estimate the degree of intoxication is meaningless. Again, she is engaging in using a stolen car with someone who she knows to be intoxicated. She certainly could not be said to have known correspondingly that he was only intoxicated to a smaller extent.

BELL J: Why do you add into the mix considerations that would ordinarily in a driving case go to contributory negligence? What is their significance in the context of this debate?

MR WATSON: May I come to that, your Honour. I will not avoid that question. I want to show your Honours the authorities which deal with that and where it has been said it is relevant in this very kind of case. Subparagraph (h), the gross overloading, cannot be ignored. It is almost impossible now to imagine that someone could get into a car with a driver who had allowed nine passengers to join him and think that the driver was going to drive responsibly. Paragraph 79 accumulates many of these things and this is where his Honour referred to the:

significant and reasonably foreseeable risk that the appellant might not exercise the degree of care and skill –

and I will come back, Justice Bell, to the authorities which say that that is a highly relevant finding and a significant and reasonably foreseeable risk that the person in control –

might refuse to comply with requests or directions from the passengers –

Indirectly, I answer your question, your Honour, in respect of the request to get out. I will come back to it in a little more detail in a moment.

BELL J: When you do, in terms of the analysis of the criminal conduct of the appellant, the circumstance that at the point when she consented to being conveyed in the vehicle, knowing that it was overloaded, you say carries with it that for the balance of the journey, no matter what her protests, she was criminally liable for the continuance of the journey as a person making use of the vehicle such that at any point in the subsequent journey she was committing the offence, notwithstanding her endeavours to withdraw from the earlier permission?

MR WATSON: We do. We answer that two ways. One is to refer to the matters to which Justice Buss referred that it was a reasonably foreseeable risk, that at that time the driver with the eight other passengers would not behave responsibly or reasonably or accede to that request, or we answer it a second way. Irrespective of what happens in that regard, section 371A was continuing to be breached because it was not just a using case, it was also a taking case. The appellant here was the person who removed, as your Honours know, by some amazing technique, a dipstick and opened and started the car. It is a skill I have not acquired personally. His Honour went on in paragraph 79, however, to refer to the consumption of “an unknown quantity of alcohol” and in paragraph 80 his Honour referred to matters which are reflected in some of the authorities, risks that the police might chase.

BELL J: That is an obvious risk that is related to the joint criminal enterprise. It is more difficult to seeing overloading and intoxication as relevantly slotted into this area.

MR WATSON: I will not avoid answering that question, but I will do so by reference to authorities in a moment, your Honour. May I take your Honours to the decision of Justice Newnes at page 109. In particular, paragraph 148 and following through to 153 deals mainly with the same things. At paragraph 149 his Honour also identified the unlawful use would carry with it serious risks. At paragraph 150, the drinking and the inability to tell whether the drinking was a significant impediment. Paragraph 151 are matters very similar to those considered by Justice Buss.

FRENCH CJ: These were not risks incidental to a breach of the law. They were risks arising out of the particular circumstances in which the law was being breached.

MR WATSON: That is true, the whole of the transaction. While we are there in the appeal book, may I also take your Honours, I suppose out of rhetorical flourish, to page 114 where we can see the grounds of appeal. Those findings by those intermediate appeal judges were not the subject of challenge nor was their Honours’ use of those findings in the conclusion. They remain intact.

HEYDON J: Mr Walker said yesterday they were true but irrelevant, basically. He did not use those words, but that is the effect of what he said.

MR WATSON: Yes. Your Honour would appreciate what our riposte would be.

HEYDON J: Is not that type of point really – or are not grounds 2 to 4 gravid with that type of point?

MR WATSON: Would they have permitted him, if he had wished to, to challenge those findings? Perhaps so, but he has treated them as though they are, legally speaking, irrelevant and attack the case at another level.

HEYDON J: Yes, he does not challenge them. He just says they are irrelevant.

MR WATSON: Your Honours, the point we seek to make from that is that as part of the consideration here, as part of the weighing matter, as part of the features of the case, the dangers inherent or accompanying the criminal action must be considered. The idea that occurred to their Honours in the intermediate appeal court that they were relevant were not new and in light of your Honour Justice Bell’s question, may I take your Honours to Gala v Preston (1991) 172 CLR 243 – I will need, of course, to come back to this case in some more detail – and show your Honour that at 247 the plurality were looking at the decision in the appeal court there and referring to the facts. You will see from about point 6 onwards the reference to the judgment of Justice Williams and, later, the judgment of Justice McPherson, but the portion to which I wish to take your Honours is at 254.

GUMMOW J: Have you looked at the judgment of Justice McPherson in the Court of Appeal in Queensland?

MR WATSON: I do not believe I have, I am sorry, your Honour.

GUMMOW J: Perhaps you had better do that, I think. It is (1990) 1 QR 170.

MR WATSON: Your Honours will see at page 254 in the first new paragraph, “So, in the present case”, et cetera – and it is true, this is governed by considerations of proximity, but particularly in the second new paragraph, when attention is given to the circumstances, the theft, the spontaneously planned joy ride – I will come back to that in a moment – or adventure, the criminal activity was, of its nature, fraught with serious risks. There is a reference to alcohol.

BELL J: Was the contention that the consumption of the alcohol itself relevant in terms of the criminal law sanctions for driving whilst intoxicated?

MR WATSON: No. They merely arose as a kind of side issue or part of the general circumstances of the criminal transaction. The men involved there had been drinking heavily. The facts are at page 245 and at around about point 4, and I just draw attention to this because yesterday it seemed as though the concept of joyriding and a different implication may have gained traction, and it was said that this is one of the joyriding cases. Well, maybe not. At some stage during the evening a party formed the intention to go north. They decided to steal a car for that purpose. Two of the four decided that they would visit somebody in Gladstone. The other two decided to go further north and carry out robberies or burglary. When the suggestion was put to him:

the respondent said that he assumed that the journey north was to be something of a “joy ride”.

There is no, as I will come to in a moment, legal concept of a joyride but even in this case if this is said to be a joyride, that is as close as it got to it.

CRENNAN J: Can I just on the question of alcohol and its significance note the finding that both the respondent and the appellant at the time of the accident had a blood alcohol concentration in excess of 0.2 on the judge’s findings.

MR WATSON: Yes.

CRENNAN J: So that when one turns to 246 at about the middle of the page, one sees as one of the issues that are identified that were live at trial was the illegal taking and using of the vehicle and the consumption of alcohol to the extent referred to above, and I take that to be a reference to consumption to the level of 0.2. So that may explain ‑ ‑ ‑

MR WATSON: It may. When I said before it arose only generally and was not resolved there were no findings, for example, that the accident occurred because of the loss of control due to the abuse of the alcohol. It was simply used in the context of this case by the plurality as one of the factors to be taken into consideration.

CRENNAN J: But it was a factor of independent illegality.

MR WATSON: Yes. That seems clearly to be so from the judgment. At page 273 - I will not labour this - but Justice Brennan in the last full paragraph commencing “Is the principle applicable”, et cetera, refers to these sorts of matters generally and so does Justice Dawson at page 280. It was also referred to by his Honour Justice Mason in Jackson v Harrison (1978) 138 CLR 438 - if I could take your Honours just briefly to the portion of it, more particularly at page 455. Mr Walker took the Court this morning to this passage. It is at the foot of page 455. We rely upon it as demonstrating that taking into account all the reasonably foreseeable risks, is entirely appropriate. Your Honours can see that ‑ ‑ ‑

CRENNAN J: You are referring to the hazards which are necessarily inherent in the execution of the joint criminal enterprise?

MR WATSON: Exactly, your Honour.

CRENNAN J: That idea, I think, lies behind the notion that it is not possible to formulate a reasonable standard of care in that particular circumstance.

MR WATSON: That well may be so and I had not thought about it in that light, but, nevertheless, if one looks at that idea which may have been influential at that time, it may have been influenced by the idea that duty of care was also thought, even between driver and passenger, to be variable or potentially variable. If one takes the standard of care from those cases back to its natural root, it is to say that there is no duty at all.

BELL J: But is not his Honour there talking of the features of the illegal enterprise that throw up the hazards? It is just difficult to understand why the circumstance that a person gets into a vehicle knowing that it is overloaded is a relevant consideration in this context, it being the circumstance that may affect contributory negligence but not go to liability.

MR WATSON: With respect, no. I will give an example which could not be said to be relevant to contributory negligence but to liability generally. For example, if a person was a passenger in a car which had been stolen and, irrespective of whether it was stolen for the purposes of a joyride or for some other purpose, they were driving along the street and the police got behind them with the light flashing, the driver would presumably have a range of options but two of which would be to pull over to the side of the road or to take off. Irrespective of the subjective intent of the passenger – the passenger may have thought, please pull over to the side of the road, or may have even said it out loud, or may have said the opposite or thought the opposite – but irrespective of the subjective intent of the passenger, that was obviously a foreseeable outcome of the taking of the car.

BELL J: That is a hazard necessarily inherent in the execution of the illegal enterprise. It seems to me to be conceptually different to considerations of overloading and, for that matter, intoxication.

MR WATSON: We would respectfully suggest the matters here, which were relevant, are those defined by the statute, the taking and using, and once a passenger in a car, one could not rely upon a person, particularly one who was willing to allow themselves to drive a stolen car when they are unlicensed and drunk, in a responsible fashion, but I am being repetitive now, I fear.

CRENNAN J: Mind you, Justice Mason on the next page from where you were in Jackson’s Case does make a distinction from the kinds of cases where the hazards are necessarily inherent in the execution of the criminal enterprise and cases which may involve the joint criminal activity, but at about six or seven lines down there may be the situation that that does not entail an agreement to drive the car recklessly on the highway. You are saying that the risks there are sufficient?

MR WATSON: Yes, but needs not be, as Mr Walker would put it, to be some sort of agreement beforehand. It is, with respect, unlikely to be the case that people stealing a car would insist upon the driver observing certain safety rules, particularly if you knew that the driver was unlicensed and intoxicated, and these are factors to be taken into account.

CRENNAN J: You will come to the point about her trying to exit the vehicle?

MR WATSON: I was going to come to that right now, if I may?

CRENNAN J: Because, on the facts, is it right that the driver drove in a way which was not unsafe in the early part of the journey?

MR WATSON: Yes.

CRENNAN J: Then the driving deteriorated?

MR WATSON: May I say this, with great respect, the primary judgment recounts, as it were, evidence from the plaintiff and the defendant and expresses in general terms a preference for the plaintiff’s evidence. There are not formal findings to that effect, but that would follow from the general preference for that evidence. The findings are there that the driver drove at first reasonably responsibly or nothing out of the ordinary but then started to misbehave with his driving and at that point, the plaintiff indicated she wished him either to change that or to get out of the car.

Now, may I say this. In Smith v Jenkins, the fullest statement of facts is in the judgment of Justice Windeyer and, for example, he there observes that the passenger had urged the driver to slow down, slow down, but that did not seem as though it would ameliorate the situation. On the other hand, at its most extreme level, a statement that “I wish to get out of the car” might indicate an indication that there was no longer a wish to participate in one of the two kinds of offences, that is, the using, but it does not at all affect the taking.

BELL J: Is the taking a continuing offence?

MR WATSON: It must be, your Honour. The section says:

A person who unlawfully –
. . .
(b) takes a motor vehicle for the purposes of using it ‑ ‑ ‑

BELL J: Yes, but the vehicle has been taken. At a point in the journey, the person who took it says, “I no longer wish to be a party to this venture. I want to get out of the vehicle.” You say because she took the vehicle, for however long she is detained against her will, if that be the case, in the vehicle, she is nonetheless engaged in the taking of it?

MR WATSON: Yes.

HAYNE J: Taking for the purposes of using, which is the full statutory expression?

MR WATSON: Yes. Your Honours, may I say this. The reason why that is so is that taking for the purposes of using placed, in this case, the appellant in the rear seat with nine other passengers. One of the particulars of contributory negligence was the failure to wear a seatbelt. The reply pleaded that that was not so because no seatbelts were available to her. To suggest that any criminality in terms of either the using or the taking would cease at the instant of expressing a willingness or desire to get out of the car, with respect, would not be so. This case was conducted from the start as though it was common ground that the plaintiff had been guilty of that offence. It was not suggested at the trial that the plaintiff was not guilty of that offence, section 371A, in some shape or form. There was no finding by the trial judge to the effect that that did constitute an end of the criminality. That was the course the trial judge decided it, or the whole case, on another angle.

BELL J: There was, I think, put in issue, the question of a joint criminal enterprise, was there not? So that the plaintiff at all times acknowledged “I took the vehicle and that was in contravention of the criminal law”, but she put in issue that she was criminally concerned in the venture at a later point with the defendant, did she not?

MR WATSON: I am not sure that she put it at the level that the criminality had ceased, but certainly it was raised as an issue on the pleadings in reply, although it is hard to see where it surfaced as an argument anywhere else. All I can say about it at this stage, your Honours, is that there was a discussion about it in the intermediate appeal court and it seems to have been thought by their Honours – his Honour Justice Heydon pointed yesterday that the exchange recounted may have not dealt directly with the issue – but nevertheless, it seemed to have been thought by the whole of that court that that was not issue which was on the cards and there is no suggestion that it is an issue here. It has arisen only during argument.

BELL J: On the pleadings, the reply at appeal book 14, paragraph 2(c), is a denial of engagement in a joint illegal enterprise and the assertion as a material fact of her requests that had been refused, that the vehicle be stopped and that she be let out, and she asserts she was thereby rendered an unwilling passenger.

MR WATSON: Yes. I can tell your Honours after this was raised yesterday, we made some endeavour to get a copy of the transcript. The transcript did not include submissions, but it is hard to see where this issue arose. The trial judge does not seem to have dealt with it as it may have a legal effect, although there is reference to the evidence, and I can tell your Honours we looked at the evidence and it supported her Honour’s findings.

HAYNE J: Is there any Coulton v Holcombe or other basis to which you point as precluding this Court from considering the point?

MR WATSON: Regrettably, no.

FRENCH CJ: Do you accept the description by Justice Buss at paragraph 78(a) of the joint criminal enterprise which was in issue before the Court of Appeal, that is, “involved unlawfully using the motor vehicle in question”, which had been broken into and taken, et cetera?

MR WATSON: Yes.

FRENCH CJ: I mean, that is about as good as it gets in terms of the description of the enterprise, is it not?

MR WATSON: Yes.

HAYNE J: As always the word “involved” is infinitely elastic.

FRENCH CJ: Just one other matter, Mr Watson, and maybe you say this is of no significance. What, if any, significance does one attach to the fact that the defendant waived the defence of voluntary assumption of risk?

MR WATSON: In respect of deciding this case, I would submit that nothing could be attached to it. It might be one of those forensic decisions which, I could assure your Honours, may not or would not have been taken by me.

FRENCH CJ: Because the very risk factors that you are describing as, if you like, incidents of the transaction which go to the assessment of whether there was a duty of care were those relied upon in the defendant’s pleading in support of a voluntary assumption of risk argument.

MR WATSON: There is certainly a significant overlap and it is hard to find where the overlap ends, but I would respectfully ‑ ‑ ‑

FRENCH CJ: You say it is all in a separate box?

MR WATSON: I am reminded that volenti cases have proved incredibly difficult to establish by reference to that doctrine and case stating authority for that is Gala v Preston itself where the defendant succeeded on one point but failed on volenti.

Your Honours, may I turn to something new and that is to look at the appellant’s central submission, causation. Could I take your Honours to the appellant’s written submissions where the causation submission is explained. In the appellant’s submissions in‑chief the issues were crystallised at paragraph 47 where there are four items, (a), (b), (c), (d). It is (c) where the proposition is, in effect, now, but it might be better understood that the fact of something being joint is not the central issue. The appellant’s primary submission is that that is the way the case is to be determined by reference to that test for causation.

I will come back to another test for causation when I deal with Gala v Preston, but could I also at this stage show your Honours paragraph 54. In paragraph 54, which encapsulates much which was said, it is proposed that the causation question would be answered by reference to determining the purpose of the illegal use of the car and then it goes on to make an explicit reference to the joyriding aspect. There are a couple of things I wish to put to your Honours about that.

The idea of converting this inquiry to one of causation to be shown by reference to the purpose – or there it is said “purpose of the illegal use” but one can imagine how that might apply in other kinds of crimes – but to purpose is an invitation to have a regard for a very wide range of features. It is not really so easy to think of a limit to those features when one speaks of a concept as general as purpose, but also – and this was explicitly put yesterday – it is an invitation to a trial court to have regard to a wide range of purely subjective features. This is the first time I will refer back to what Justice McHugh had described in Nelson v Nelson as an unstructured discretion.

I am going, at the outset, to deal with one of the matters raised directly, which was this concept of joyriding. I will come to other features of the subjective discretion or purpose in a moment, but I wish now to deal with joyriding because, at least yesterday afternoon, it seemed as though the concept that one could distinguish between a joyride and a car which had been taken for a particular purpose, one could distinguish between the two. In the first instance, it was accepted, as it is in writing here, that there would be no duty of care owed because a joyride was inherently dangerous, but in the second instance, a duty of care would arise. We would respectfully ask the Court to reject that proposition.

HAYNE J: It would erect a rule for joint activity markedly different from the basis on which Justices Dixon and McTiernan dealt with Henwood, I think ‑ ‑ ‑

MR WATSON: Well, it would certainly do that.

HAYNE J: ‑ ‑ ‑ where their Honours explicitly rejected such an analysis at page 460 from point 5 through to about point 7 of the page.

MR WATSON: May it please the Court. Could I make another small point about it. It would be asking for a rule to be erected for which no basis can be found in section 371A. There are practical reasons why in any case, but I will use this case as the example, why such a distinction cannot exist. There were 10 people in this car. Your Honours, we will never know, but some of them, perhaps some of them, were they subjectively under the impression that they were on a joyride? Were only some of them thinking that they were going home or were some in the car for some other purpose?

It would be a strange result if a duty was owed to, say, five who were travelling home, but not to the other five who were simply along for what they thought was a joyride, and because there was drinking involved, imagine this. Imagine one or more of the people were too intoxicated to form an opinion as to whether or not they were on a joyride. On which side of that line would they fall? What is more, what if the purpose of the journey changed and the driver had it in mind at first to take people home and then thought, “No, I’ll simply go on a joyride”? Does that alter the situation? With respect, no. Similarly, if the passenger changed his or her mind, could that change it?

Your Honours, this idea of a joyride distinction, with respect, has got an insecure foundation in the law. I did point out to your Honours the facts in Gala v Preston did refer to someone who assumed that they were going on a bit of a joyride but, in fact, they were driving with particular purposes in mind. Incidentally, the plaintiff in Gala v Preston was asleep at the time the accident occurred. He was in the back of the car and asleep when the car hit a tree. He at that stage presumably was not forming an impression as to whether he was on a joyride or a journey for some other purpose. Finally, it needs to be said, there is no judicial or juridical or legal definition of a joyride. One person’s joyride might be another person’s Saturday afternoon legal pleasure.

This is where we point to the problem with an idea of causation determining these kinds of cases as leading to no more than the development of these cases, case by case, by reference to an unstructured discretion involving inevitably the subjective features of the case. One of the matters which strongly influenced the primary judge in this case was the blood relationship between the driver and the passenger and if the appellant’s submissions here are correct, that might be the kind of matter which can be taken into account as a subjective feature, something to do with purpose.

Again, there were 10 people in the car. Some may have been related but others were not. It would be a curious result if some were owed a duty of care and others not and we would ask the question, might it depend upon the closeness of the blood relationship, children dealt with differently to nephews, and might it be different, depending upon the closeness of the relationship? I will be so daring as to submit that I believe that we would have all experienced that we are closer to some perhaps of our nieces and nephews than others.

In this case, for example, the primary judge – and we would take the appellant’s submissions here in this Court implicitly, at least, to support this approach – pointed to features such as the uncle had schooled the appellant in ninja flaps and some relationship of trust grew out of that. If those sorts of features of a case become relevant to the determination as to whether or not a duty of care can be owed despite the presence of a criminal enterprise, it looks as though it would be weighing some features relating to purpose, including trust, including blood relationship and the like, and weighing those against the illegality. How would that be resolved?

By impression, in any case, it could not possibly lead to a legal rule being defined. It could only lead to the point where discretionary factors influence a judge one way or the other. One could imagine in a case, a typical case, where two plaintiffs were both suing one driver, there could be two different results. Your Honours, I wanted then to go to explain to your Honours what lies behind the rule or principle which we propounded. I sense, I may be in trouble if I use the word “condone”, but I am going to need to use it.

GUMMOW J: What does “condone” mean?

MR WATSON: I am going to try and offer a meaning to that.

GUMMOW J: Some form of absolution?

MR WATSON: May I put it this way. The rule we propound might be expressed this way, that the recovery of damages will not be allowed where an award of those damages would have the effect of condoning – I will return to that word – a breach of the criminal law. There might be another way of expressing that. There may be many other ways of expressing the same thing. May I offer one which was discussed yesterday afternoon. The duty of care would only be recognised where that was compatible with a breach of the statute.

May I rush quickly to say the word “condone”, as used by Justice Brennan or as used by me now, carries with it no moral overtone. It is not an idea that criminals do not deserve damages or that criminals have done something which puts them outside the protection of the law. By condone, we would submit that JusticeBrennan was saying – I will come to it in a moment, but Justice Dawson said something very similar – what was being said that in a context of coherence an award of damages would not be allowed where that award would have the effect of undermining, as it was put, the normative effect, of the criminal law ‑ ‑ ‑

GUMMOW J: Well, what does “undermine” mean?

MR WATSON: ‑ ‑ ‑ or creating a clash between the criminal law and the common law.

GUMMOW J: Criminal law we are talking about is usually a statute.

MR WATSON: Yes, almost inevitably.

GUMMOW J: So we are really talking about the relationship between judge made law and legislation, are we not? Coming from two branches of the polity.

MR WATSON: Yes. Your Honour, it may come back to a concept ‑ ‑ ‑

GUMMOW J: So are we not back in the realm of what the statute is doing?

MR WATSON: I am so sorry, your Honour?

GUMMOW J: Are we then not back in the area that was being discussed by Justice Dixon and Justice McTiernan in Henwood?

MR WATSON: Maybe inevitably we come back and we would look at the statute.

GUMMOW J: Do you accept or reject their proposition at the bottom of 460? It is about 10 lines from the bottom of 460. They refer to the United States situation which started out as quite extreme. Then they refer to what Sir John Salmond said in New Zealand and they end by saying:

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.

MR WATSON: That would be one way of expressing precisely the same proposition for which we contend.

FRENCH CJ: That does not mean you have to find a statutory implication, does it?

MR WATSON: Certainly not.

FRENCH CJ: There is some purpose which causes the common law to withdraw, as it were, from that territory.

MR WATSON: That is so.

BELL J: In Henwood it is a little easier to understand the application of the principle having regard to the nature of the regulatory provision which was at issue as opposed to the ‑ ‑ ‑

MR WATSON: We would say section 371A, for example, your Honour.

BELL J: As opposed to the great bulk of the criminal law expressed in statute.

MR WATSON: Yes. That is so and, hence, one readily understands the result in Progress and Properties v Craft where it was not normative effect of the criminal law which was being undermined but maybe enhanced, that after all being a regulatory rule obliging that employer who was bound to keep his employee safe, so that one could see that.

GUMMOW J: Just before we leave that passage in Henwood, their Honours went on to say, at the bottom of 460:

The condition proposed by Sir John Salmond in the case cited does not go so far . . . According to his view, it is enough –

enough to deny the plaintiff, I mean –

that the penal provision had for its purpose the prevention of the kind of accident that happened.

Which is more general really.

MR WATSON: Yes, but also might be seen as referring back then to the facts in Henwood or a point of connection.

GUMMOW J: The reason why I mention it, what Sir John Salmond said, I think, is taken up by Professor Prosser when he was writing the Second Restatement of Tort in comment (b) at paragraph 889. I will just read it out:

The fact that one is doing an illegal act does not prevent him from maintaining an action for harm caused by the negligence of a third party. Nevertheless, if the injured person has violated a statute designed to prevent a certain type of risk, he is barred from recovery for harm caused by violation of the statute –

and this is the significant bit –

if, but only if, the harm resulted from a risk of the type against which the statute was intended to give protection.

MR WATSON: That might be speaking of a class of statutes which are dealing with, for example, safety laws, such as was at stake in Henwood, but would have little operation in a more general field of, for example, the Criminal Code (WA) or, for that matter, any general criminal act.

FRENCH CJ: That might be a convenient moment, Mr Watson.

MR WATSON: Thank you, your Honours.

FRENCH CJ: We will adjourn until 2.15.

AT 12.49 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

FRENCH CJ: Yes, Mr Watson.

MR WATSON: Thank you, your Honours. May I start by attempting to answer, or perhaps re-answer or better answer Justice Gummow’s question about the meaning of the word “condone”. Your Honours, we would submit that tort law would have the effect of condoning an illegal act whenever it alleviated a disincentive for the commission of the legal act. That, we would respectfully submit, should be the general view. It is consistent with Justice Brennan. Your Honours, anything which weakens the command of the criminal law is to be avoided, and the basis for that submission is simple. It is to promote consistency, or compatibility, or coherence between tort law and the criminal law.

Your Honours, there may be many kinds of different disincentives toward disobedience of the criminal law. There may be many, but more relevantly, may I just point to two? One is that where the person, and that is this case, becomes indemnified against their own losses sustained in the consequence of the risks inherent in their own crime. I will give another example drawn from one of the authorities, if I may. It goes further. In some instances, the person in breach of the criminal law has sought indemnities in respect of potential liabilities to third parties.

May I remind your Honours that that was one of the types of claims raised by Mr Gray in the case of Gray v Thames Trains. He was the poor man with the psychological injury who had murdered a man, and one of the heads of damages he sought was an indemnity in respect of any claims which might be made upon him by the family of the murdered man, and the House of Lords refused that claim.

Your Honours, answering the question reminds me that we should perhaps provide an explanation to your Honours as to why we are actually propounding a principle. We have offered, in our submissions, a principle or rule to which the general concept can return. Your Honours, we are motivated to do that to avoid the effect of what might be described as an unstructured discretion or to avoid what many of the judges have seen as being a problem insofar as cases would be decided case to case on an ad hoc basis by reference to an ever-enlarging group of potential factors.

With that as background, may I now take your Honours to Gala v Preston (1991) 172 CLR 243. I wish to start, if I may, with Justice Brennan. Justice Brennan’s judgment starts at page 255, but it is fair for the present purposes to pass over much of the start of that judgment, which is largely concerned with exposing the shortcomings of proximity. The essential part of the judgment starts at page 270 and it is contained on that and the next couple of pages.

At page 270, right in the middle of the page, there is a reference to “None of the approaches”. Your Honours, that paragraph is simply his Honour signalling that none of the explanations offered so far in any of the cases had been, to his Honour, satisfactory. Then his Honour, in the next paragraph, posed two questions. The answer or the originating statement is stated with a high degree of generality and, your Honours, I cannot escape that fact in broad terms because the civil law cannot condone breaches of the criminal law. Then there are the two questions posed:

in what circumstances may the admitting of a duty of care condone a breach of the criminal law? and, second, are all criminal laws of such a kind -

Excuse me, your Honours, if I deal with this part of the judgment in a little bit more detail than usual. Each paragraph is important to our argument. At page 271 the first new paragraph:

The admitting of a duty of care may condone –

et cetera. Mr Walker took your Honours to this showing there the reference to the swindler or the two swindlers, rather. What we wish to get from that passage is what we would say is the correct approach with respect to causation. What his Honour said at about the middle of the paragraph:

By contrast, the civil law would not be condoning a breach of a law creating an offence by admitting a duty of care arising out of a relationship between the plaintiff and the defendant to which their participation in the breach is immaterial.

We rely upon that, as it were, statement of causation. Yesterday, your Honour Justice Kiefel gave an example. May I say, with respect, it is a very hard example. That is, the person who commits a small act of theft, larceny, takes perhaps some simple item in a shop and then slips or trips or comes to grief on a floor in the surface of the shop. Materiality or immateriality would be the question to be answered there. For example, I offer these variations and obviously every case will be fact dependent and potentially fact rich.

In one instance, it might be that the person has taken the chewing gum, or whatever it is, and made for a hasty exit. That may raise a question of whether or not it is immaterial, but in another case, there may be somebody who simply slips into their pocket the chewing gum while they continue in the store for some long time afterwards, perhaps, with a shopping trolley or the like. They will be questions for the judge at trial and, your Honours, we cannot pretend that we can offer a principle or a solution which is going to resolve every case.

KIEFEL J: It was not actually assuming that the theft was minor, in the way you have put it. You should not have assumed the example against you. What would you say to the situation where the theft was serious at the other end of degree of illegality which has been discussed, and perhaps the shop owner is being held up.

MR WATSON: That would be an easy case for us, with respect.

KIEFEL J: Well, that involves degrees of illegality, then.

MR WATSON: True, but again, it is in those circumstances very likely that in the haste to get away from the scene the criminal in that kind of case would be having scant regard for anything on the floor, or the like, and again, it would be a fact‑dependent inquiry ‑ ‑ ‑

KIEFEL J: But that suggests that it can be – I am sorry to interrupt you – dealt with by way of contributory negligence.

MR WATSON: With respect, no. There would be a primary question. Contributory negligence comes long after the event. Contributory negligence can only come after the duty is found, defined as to its content, found to have been breached, and the onus shifts to the defendant. At the point of inquiry here, there would be a finding of no duty.

KIEFEL J: But that is not for any policy reason. That is because of a factual matter, in the way you have put it.

MR WATSON: It is underpinned by policy reasons, however. The policy reason is in the general and it is in the way that we described it, that is, the condonation or non-condonation theory, the alleviation of the disincentive for criminal acts. That would be ‑ ‑ ‑

KIEFEL J: Perhaps another way is to say that the robber assumes the risk of everything involved in entry upon premises, including their state.

MR WATSON: Perhaps so. That may be so, especially when one is considering that it is a robber who might have in mind to use a firearm and who knows that that would excite immediate attention from police or may be bystanders or the like. That is, we would respectfully submit, the statement of the test to be applied for causation as set out there by Justice Brennan at page 271.

The next paragraph deals with ideas which inform the content of the condonation theory where his Honour speaks of a rejection of the “Draconian rule” about four or five lines from the bottom. He says that the draconian rule will not apply and then he said the words:

It is only where the admission of a duty of care impairs the normative influence of the law creating an offence that the civil law can be said to condone a breach –

His Honour then went straight back to public policy. In the end, all of the cases, as far as we can read them, from all around the world have not been ashamed or shy to admit that it comes back to public policy. In Smith v Jenkins, Justice Windeyer said, for example, that that is easily understood, for public policy is the bedrock, as he put it, of tort law.

Tort law has only emerged as a function of public policy perhaps in some ways to fill a gap between the criminal law and barbarism. The normative effect of the law is described further toward the bottom of page 271 where his Honour spoke of the “essential purpose of the criminal law” is itself normative. Civil law cannot impair such a matter.

I hesitate because I know your Honours know this judgment so well and your Honours have been taken to parts of it but all of page 272 we rely upon and may we go back to his Honour’s judgment to say that it reflects something which we also wish to support which is that the focus is to be upon the plaintiff’s criminal activity. At the very outset of this appeal, the idea of it being necessary for there to be some joint quality or two people to be involved seemed, with respect, to have been squashed. There is no such requirement.

Many of the reports deal with cases of unilateral, if that is the right word, criminal acts. Henwood is one. Gray is the case in the House of Lords. There is nothing magic or necessary about the idea that it would be joint. Of course, in the unilateral cases, one is looking only at the conduct of the plaintiff. In joint cases, that word “joint” there means something a little bit different to criminal concepts of complicity and the like.

CRENNAN J: When you come to this idea of the normative influence of the law creating an offence and the question of disincentives, is it not just a bit problematic in circumstances where it might be said that the injury is caused by dangerous driving causing grievous bodily harm. Now, I know you answer that by saying, well, that is a risk inherent in the crime of taking for the purposes of using, but I am just raising with you that the whole disincentive idea cannot just take up the plaintiff, can it, in circumstances where you have here the crime of taking for the purposes of using but you also have, as I understand the facts, a conviction of the driver in relation to dangerous driving causing grievous bodily harm?

MR WATSON: In fact, causing death, regrettably.

CRENNAN J: Yes.

MR WATSON: Your Honour, may I say this? What we say is that the focus is on the plaintiff and that would be where the inquiry would commence. We do not say that we are limited to that.

CRENNAN J: Not where it would end?

MR WATSON: It would not be limited to examining only the circumstances of the plaintiff. The whole of the circumstances of the criminal enterprise, it is sometimes called, which seems a strange expression itself, but the criminal enterprise would need to be examined and that would place matters into context. A classic example of that would be Progress and Properties v Craft where the Court was able to look at, as it were, the act of the plaintiff – what did he do.

On one view of it, that could be better characterised as an employee trying efficiently to get to his workplace, perhaps for the benefit of his employer, by using an improper method. But the Court can look then at the whole of circumstances, focusing on the plaintiff, but nevertheless taking into account the defendant to assess whether or not the public policy intrudes to prevent the duty of care arising.

May I say this. Yesterday, I think it was your Honour Justice Hayne with respect, asked a question and it came in the context of submissions made which all dealt with focusing on the activities of the defendant rather than the plaintiff, and your Honour drew attention to an example. It would be preposterous to suggest that a defendant in a motor car case could say “I am not liable to you because I was going 65 kilometres per hour. That is over the speed limit. I was in breach of the criminal law, hence you cannot recover”.

That, we would respectfully submit, tends to underline why it starts and is conducted, always, as an inquiry examined through the conduct of the plaintiff rather than the defendant. Your Honours, page 273, there were two questions posed by Justice Brennan. The second is resolved in the second half of the page in the new paragraph commencing with the words:

Is the principle applicable to offenders engaged in the unlawful use of a motor vehicle –

et cetera. Your Honours that is this case. Maybe I have said this before. If I have, I apologise but I am going to say it again. Unless this Court now finds the cases of Smith v Jenkins and Gala v Preston which are relevantly factually indistinguishable, unless this Court finds that they were wrongly decided, as Justice McLure found in the intermediate court they should determine this case.

Your Honours, what Justice Brennan had to say in Gala v Preston is echoed in statements by other judgments in that same case. May I take your Honours to page 252 which is in the judgment of the plurality. Page 253 is the page I wish to take your Honours to, about 10 lines down into the lengthy paragraph which starts that page there is a sentence “Where, as in the present case”. Your Honours would find it. It is close to Justice McHugh’s name in the right‑hand column. Their Honours there discuss a matter which we say is consistent with the idea in Justice Brennan’s judgment.

Again, your Honours can see the distinction being drawn between what might be regarded as a mere regulatory matter as from a serious offence. A clearer statement, closer, but in a sense harder than Justice Brennan’s, appears in the judgment of Justice Dawson at page 277. I hope it is not unfair to extract a sentence from his Honour’s judgment, but about five lines from the bottom in the final sentence of the second‑last paragraph his Honour said:

I would express the policy as being the refusal of the law to condone the commission of a criminal offence by granting a civil remedy.

In its terms, and one gets this impression from the whole of his Honour’s judgment, it may be stated in a more absolute way than Justice Brennan stated it and, in that sense, operate more directly and perhaps a little bit more harshly or closer to what was called draconian. Then, finally, Justice Toohey at page 292 in the final paragraph of his judgment said something which is, in other words, we would respectfully submit, almost the same. Smith v Jenkins, his Honour interpreted to be:

a statement of the unwillingness of the law to lend –

et cetera. That is the basis for us propounding to your Honours a particular principle. May I respectfully submit this? We do not pretend for one moment that because of those statements that the way that we have framed it enjoys some kind of authority. It is merely something which emerges in terms, we would respectfully submit, from the whole of that. May we go further and say it is not inconsistent with the cases which went before and in some ways is able, very nicely, to explain the result, especially cases, for example, like Jackson v Harrison and Progress and Properties v Craft.

Your Honour Justice Kiefel mentioned comparative law. I do not want to dwell too long, but we realise that there are some generally important and difficult questions at stake. Could I take your Honours briefly to that case of Olmstead? I believe that your Honours have been provided with copies of it - Olmstead v United States 277 US 438.

Your Honours may not be familiar with the facts, excuse me if you are, but Olmstead and his co‑conspirators were major importers of Canadian liquor during prohibition. They would bring it down from British Columbia into Seattle. I think it might have been the FBI, but a federal agency placed taps on their phones and got a lot of – it was probably more likely the ATF, in fact. They tapped their phones and that disclosed clear evidence of a conspiracy.

The taps were illegal under a Washington statute. The Olmstead Case got into the United States Supreme Court because it did raise a federal question. There were two constitutional questions raised, but in addition the admissibility of legal evidence obtained through the taps was an issue. Chief Justice Taft delivered the principal judgment on behalf of the court and the judgment to which I am about to take your Honours, that of Justice Brandeis, was one in dissent in the result.

Your Honours would believe that the statement remains sound and has been appreciated ever since by American lawyers. His judgment commenced at page 471. It was not a short judgment, and the particular passage is toward the end. I wish to take your Honours to page 484, again, a statement of very high generality, but a principle from under which much including, we respectfully submit, the principle for which we stand, comes. That is the passage “The door of a court”, and right down to the word “contamination”.

HAYNE J: The passage to which you refer refers to the “very transaction as to which he seeks legal redress”, and I am reminded of Justice Toohey’s statement in Gala v Preston:

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 –

et cetera, at page 292 of Gala v Preston. Much may turn, may it not, on this definitional issue of what is the act? Is the relevant act here the use of the car? That is the statutory term. Is it the use in a particular manner, for example, dangerous use, reckless use? I fear we are getting into definitional tangles, not greatly different from notions of proximate cause, real cause, et cetera.

MR WATSON: I fear this may not be a satisfactory answer to your Honour, but Justice Toohey was considering the act in that case as being one which was, as your Honour recalls, the four men and the stolen car, drinking was involved, et cetera, and his reference immediately before that statement to Smith v Jenkins, an almost identical case, seems to suggest that that act, to Justice Toohey, meant the whole of what is being called the transaction or enterprise.

HAYNE J: Well, if the starting point is the statute - the statutory term is “take and use” - the relevant element here seems to be the use, perhaps that is the starting point. Then one is engaged, perhaps, in a task that is, if you like, the inverse of the statutory duty task that Sovar v Henry Lane would require for determination of breach of statutory duty. What are the processes, what are the factors that are to be followed in going from the statute to a conclusion, yes or no, that the statute is speaking to or was to be understood as having an effect upon availability of civil remedies?

MR WATSON: Your Honour, in response to that, I heard yesterday reference to Sovar v Henry. May I say, with respect, it is very apt in the sense of the regulation of safety in the workplace that the legislature would be very specific with terms and conditions of the things which were necessary to afford a safe workplace and so that kind of legislation much more readily would reveal that kind of intent which may make it, in some circumstances, available to the parties to find what I will call a statutory cause of action. It is very unlikely that the criminal Acts and Codes would ever do the same. Again, that is hardly a satisfactory answer to the problems raised by your Honour.

GUMMOW J: Just before you leave Justice Brandeis, the “very transaction” he is talking about may be reflected in paragraphs 3 through to 6, perhaps, of the appellant’s pleading. That is the transaction relied upon and it seems to plead that she and her sisters broke into and started the car, but the defendant was not a party to that initial activity but was then involved, et cetera.

MR WATSON: We would accept that that is the transaction, the broader range of events, your Honour.

FRENCH CJ: Those facts would not be necessary to make out the cause of action.

MR WATSON: That is true. The Courts have struggled, especially Lord Hoffman in Gray was critical of pleading issues to determine this broader issue, especially because it was so obvious that public policy intruded. The parties in Gray – I am troubled about this – it may well be Stone & Rolls that I am thinking of, but one of the House of Lords cases I do know there was some great focus on the pleadings and whether or not the reliance principle arose, that is, whether the party had to plead a criminal event as an element of the pleading to succeed on the cause of action. I cannot be more specific now than to say that did not find great favour, at least in the House of Lords. Nevertheless, we do, with respect, accept that that is a description of the transaction, the breaking and entering and then the continuing illegal use.

Your Honours, we are just continuing this very superficial survey of the comparative law. Could I take your Honours to the Canadian case, Hall v Hebert [1993] 2 SCR 159. The facts were there that two young men were drinking heavily and they had what was described as a “souped‑up muscle car”. The plaintiff was actually behind the wheel and the owner of the car, the defendant, was behind it because the souped‑up muscle car had stalled somehow or another and they were attempting to do, what it seems the Canadians do not have this convenient expression for it, but in what Australia would be described as a clutch start.

Now, the defendant is pushing the car and managed to push it over a cliff and, no doubt, their state following heavy drinking contributed to that as well as other factors of negligence. It would be wrong if I did not take your Honours to the decision of Justice Cory where he described, at page 195 in the left‑hand or English column, the facts. I cannot resist showing your Honours this. Under the heading “Factual Background”:

The respondent Hebert owned what he described as a souped‑up muscle car. He had driven it at speeds in excess of 200km/hr. No doubt it exuded a compelling seductive charm that would attract young men of all ages.

Anyway, I am leaving that there. There is another part of the judgment to which I wish to take your Honours at page 169 and this is the decision of Justice McLachlin who enjoyed the consent of a majority of the court -at page 169, again in the left‑hand column at point e, about 15 or so lines commencing with the words “My own view”. Not all of Hall v Hebert helps us, your Honour, so we would frankly prefer it if her Ladyship had not included the word “very” in front of the words “limited circumstances” but, nevertheless, it is a statement we would respectfully submit of principle in accordance with what we say.

May I just rush to tell your Honours that the Canadian Supreme Court then took on another issue which does not help, in this case, my client at all but I feel obliged to show it to your Honours and then also point out to your Honours it does not seem to have gained favour anywhere else in the world and that is that the court in that instance held that compensatory damages in tort are never excluded by an illegality defence simply because they are compensatory and are not a windfall or a gain or a profit. Just before we leave that case, may I say that at page 179, again in the left‑hand column, in the last paragraph her Ladyship refers to the issue, again in terms which are similar, and it continues over the top of page 180.

The House of Lords has spoken twice on the issue of illegality in recent times. One of those cases is Gray, to which much reference has been made. I do not propose to take your Honours to it, if I may avoid that now. Your Honours, that was a very sad case about the poor man who was in the rail accident and it changed his personality. He took to heavy drinking and uncontrollable anger and one night he killed another man. Your Honours have already been taken to ‑ ‑ ‑

GUMMOW J: I see that at page 183 Justice McLachlin referred to Henwood in Hall v Hebert.

MR WATSON: Yes. In looking for guidance, the Canadian Supreme Court turned, in fact, to a few of the Australian cases. May I just briefly offer a submission before I go to Gray in any more detail and say that, to some extent, it may be that the Canadian Supreme Court was considering ideas that it is impossible or difficult to erect a duty of care because one could never establish the content of it in certain offences.

Your Honour Justice Kiefel asked some questions about this this morning. It could never be the case, not even in the case postulated by Lord Asquith, that you could not find out what the content of duty of care was, even in the case of two safecrackers blowing up a safe. I dare say it would be difficult to find an expert safecracker who would volunteer an expert opinion, but it would not be much different from the kinds of mining cases which are tried from time to time where people are handling explosives. That cannot be a satisfactory explanation for what is happening here. We would respectfully submit that the illegality principle operates at a higher level again, removing the existence of a duty.

I mentioned Gray. Your Honours saw this morning reference to a narrower and wider proposition. Mr Gray murdered a man, but he admittedly handed himself into the police and pleaded guilty to manslaughter. He was put in a psychiatric unit of a hospital where he was detained for some time. Part of his claim related to – I am sorry, I should say this. His psychological injury had been brought about by a terrible rail accident. The rail company admitted negligence. They admitted that his psychological injury was severe and that it was caused by the rail accident.

What is more, they admitted that, had it not been for the psychological injury, Mr Gray would not have murdered that man. Mr Gray’s claim for damages included at one level compensation for the time when he was in the psychiatric unit at the hospital and, therefore, could not earn. That is the narrower principle referred to by Lord Hoffman, and no one in any of the cases anywhere in the world has suggested that damages would be payable in such circumstances, not even the Canadian Supreme Court, who subsequently dealt with that issue.

The second, or wider part of the case referred to by Lord Hoffmann was the one which I told your Honours about. Mr Gray also claimed damages on the basis that he had pain and suffering. His feelings of remorse from killing the man and also this, I mentioned it before, an

indemnity in case the family of the murdered man sued him and the House of Lords disallowed those claims. I wish only to get from this that this idea of the illegality principle operating to defeat damages claims has operated generally at the level of liability, but also operated within claims to defeat particular heads of damages.

In that respect, the House of Lords and, I believe this is so in each of their Lordships’ speeches which refer to the issue, spoke of the decision of the New South Wales Court of Appeal in State Rail Authority v Wiegold (1991) 25 NSWLR 500 and the particular portion is part of a judgment of Justice Samuels at pages 514 to 515 which was joined in by Justice Handley.

Your Honours, may I just finish by saying this. We have offered to your Honours a principle. We apologise it is at a high level of generality. It is a principle which, on reflection, seems unfortunately to fall, perhaps, into a box, inside a box that it may only apply in the negligence area and then, in the negligence area where it is a reference to a breach of a criminal statute rather than some broader idea. But, nevertheless, that is what we have proposed, your Honours, may provide some kind of general rule to which this concept can be tied. May it please the court?

FRENCH CJ: Thank you, Mr Watson.

MR WATSON: Sorry, your Honour we checked at lunchtime to see whether there was any law on the meaning of the word “use”. There were two cases in Western Australia, one by Justice Anderson in the late 1990s and one more recently by Justice Simmonds, but then unfortunately, Mr Owens did better and found that the word had been examined in other States and so we felt that we should not come down and just give your Honour the Western Australian decisions. Would your Honours wish the briefest reference to those cases with articulated page references to the proper parts?

FRENCH CJ: Yes, all right. Thank you, Mr Watson. Yes, Mr Walker.

MR WALKER: Your Honours, may I add some references in further response, as it were, following my learned friend to some of the questions from the Bench during his address, but before doing so make good my offer to supply the text of some provisions of a kind answering the description in Justice Gummow’s question while I was on my feet in‑chief concerning what I will call motoring offences.

MR WALKER: I do not wish to say anything about them. To the best of our capacity they have been supplied in the format they applied long ago when these events took place, 1998. The next matter of reference is to add to what has already been noted, with respect, to Justice McLachlin’s reasons in Hall v Hebert. The passage in which her Ladyship refers to the Australian rule as she calls it really commences at [1993] 2 SCR 180 at the foot of the page, referring to Gala v Preston, alongside the English Pitts v Hunt.

Her Ladyship notes the alternative of “impossible or improper”, with respect to establishing a standard of care about which enough has already been said. She then proceeds to express doubts about the “problematic” nature of the approach, see page 181, but interestingly refers halfway through the next paragraph on page 181 to:

The power of the court to deny recovery where it would undermine the coherence of the legal system –

A suggestion of that is independent of the relationship between the tortfeasor and the claimant.

That phrase that our learned friends have taken up, “integrity of the legal system” is to be found at the foot of 181, top of 182. There is reference at the foot of 182 to what might be said on the basis of what her Ladyship calls “the Australian rule” with the result that has already been noted this afternoon.

It is to be noted that the culmination of this part of the reasoning in this judgment is, of course, to make it clear that this ought to be properly so‑called, rather than loosely so‑called, a defence, a matter that may well, for the reasons we have put in our written submissions be reflected by the fact that the critical participation, jointly by the plaintiff with the defendant, is wrong and the specific causation ought to be a question of onus for the defendant.

A reference in the New York decision that I handed up this morning perhaps should be added in relation to matters that Justice Kiefel raised with my learned friend concerning the perhaps, or probably different operation or conceptual approach, if one asks about a policy of the law, that is a common law question, as opposed to what a statute requires. There is reference to a particular statutory effect in relation to the legislative position concerning contributory negligence in New York, somewhat similar to what has happened in most common law jurisdictions, to be found in Barker v Kallash, the leading judgment. That is 468 NE 2d 39. The particular passage is at 43, next to the numbered proposition [7].

While on Barker v Kallash, your Honours will note that in the concurring reasons of Judge Jasen at page 44 in the right‑hand column there is reference to some of the jurisprudence apposite to what I will call the Olmstead point raised by my learned friend. In the dissent by Judge Simons, may I simply draw to attention in passing that there is a criticism on page 50 that your Honours may find has some cogency, at least with respect to what I might call a proportionality approach to seeking to understand a criminal statute as possibly conveying or not an intention that people be deprived of damages.

Justice Gummow asked my learned friend concerning the “very transaction” expression from Olmstead and similar formulations. With respect, paragraphs 3 to 6 of our pleading, appeal book pages 1 to 2, if they were the very transaction, then of course they do the opposite of revealing complicity of the plaintiff in the act that has caused her injury, of which he complains against the defendant. They are pleas in which she first perhaps supererogatorily but very frankly admits the stealing, asserts the stealing, but then in those pleas includes the protest against speeding and the request to be let out. There is nothing there which in “very transaction” terms would fit the bill for the respondent’s success.

In relation to what my learned friend was asked by the Bench concerning the passage in Henwood, in particular, at 60 CLR at 459 to 460, apropos the reliance by Justices Dixon and McTiernan on what Mr Justice Salmond had said, which they quote at page 460, point 3, or thereabouts, we, with respect, submit that the facts plainly reveal without any overrefined analysis, and certainly without any abstruse or inappropriate resort to outmoded causality inquiries, in this case it is plain that section 371A is not there to prevent drunken or dangerous driving, let alone driving of overloaded vehicles.

Other provisions do that. It would be an extraordinary exercise of prosecutorial duty and discretion to frame 371A in order to catch the peculiar culpability of dangerous driving. Now, true, there is the aggravated sentencing possibility but 371A is not there to prevent that kind of driving. It is there to prevent the taking and using of a vehicle, however carefully driven, if it is not yours to do so.

My learned friend was asked, particularly by Justice Kiefel, concerning some hypotheticals that may test the propositions of both sides in the argument and having referred to the shoplifting, that is the trivial theft – the chewing gum – moved then to deal with Justice Kiefel’s much more serious case of the hold‑up. As your Honours will have seen, we do embrace that there are integral or inherent, in some criminalised conduct, some aspects which would fit the description of an act about which a person cannot complain as the civil plaintiff having acted so as to bring it about as a criminal complicit. It will probably be that in a hold-up case something of that kind would apply.

But, my learned friend’s example, for example, of tripping on the crushed lettuce minutes after you have pocketed the chewing gum is, if perhaps extreme, nonetheless an appropriate way of showing the irrelevance in any causal or policy sense of the illegality to the civil liability.

I was asked by Justice Hayne to ponder whether there could be, in relation to motor traffic or driving offences and, of course, they range from the relatively not so bad to the extremely dangerous, whether there could be a denial of civil liability on the basis of whatever it is we would propose by way of – I will call it a joint criminal enterprise illegality defence and I gave a partial answer in‑chief. In principle, of course, there is any number of offences of dangerous driving, normally committed only by the driver, which like any criminal offence will lend themselves, depending upon the facts and the circumstances, to the involvement as people guilty of the offence of others, apart from those holding the steering wheel.

The hackneyed “Put your foot down, they are gaining on us”, inciting or procuring by a person, as it were, in charge of the gang would be a classic example, if unlikely to dominate the criminal bill against such a person. So there is a case which would fail on the approach we take and in a satisfying fashion. The same would be true of something which we could not find criminalised specifically in Western Australia, but I know to be criminalised in New South Wales, namely what is called colloquially street racing. You will find it referred to currently in section 40 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW).

But our general answer remains that if there is complicity in the ordinary criminal way with a dangerous drive, where the element of the criminal offence includes the very act upon which the plaintiff needs to rely, which is never just driving - just driving does not make out a negligent cause of action. It has to be unsafe or, I should say, negligent driving and obviously dangerous will be negligent.

GUMMOW J: The trial judge decided a preliminary question, in effect, or a separate question. Is that all that happened?

MR WALKER: In our proceedings, your Honour?

GUMMOW J: Yes. I am looking at page 18, paragraph 2 of the District Court judgment.

FRENCH CJ: It seems to be a rather informally constituted process. There does not seem to be any formal order for a preliminary question or separate question.

MR WALKER: No.

FRENCH CJ: It is reflected in a rather curious order which appears at page 53, I think.

MR WALKER: Yes.

GUMMOW J: What would be the result of ‑ ‑ ‑

MR WALKER: What seems to fall out from paragraph 2 is that there is an agreed position that unless there is success for the respondent on the defence of joint illegal enterprise, then there is duty and breach and, on our part, there is contributory negligence 50 per cent, leaving outstanding, if there is duty – that is, if we survive the defence argument – leaving outstanding the question of damages. So, yes, as Justice Gummow points out, it is a preliminary judgment and, yes, with respect, as the Chief Justice points out, by a consensus that does not appear to have produced formal orders under Rules of Court.

FRENCH CJ: If the appeal is allowed, what is reinstated is the order which appears on page 53.

MR WALKER: Yes. This Court, as it were, does not have to take responsibility for that. All this Court need do if we were to succeed is to reverse the position in the Court of Appeal. No defect is felt at the Bar table so far as we understand in the outcome of the case as expressed in that order which was the subject of the appeal to the Court of Appeal. The effect, of course, will be that damages are left to be assessed.

HAYNE J: The action proceeds as an assessment only?

MR WALKER: Quite so, yes. That does not necessarily need to be the subject of an order, but if need be so be it.

FRENCH CJ: Just one little matter of detail that, no doubt, important to your client. She is referred to variously in the papers as “Danelle” and “Danielle”.

MR WALKER: Yes. The result of the inquiry is that the “i” should be dropped.

FRENCH CJ: Yes.

BELL J: A few moments ago in taking us to the plurality reasons in Hall v Hebert you referred to the question of onus in the context of the discussion of cases including the Australian cases. As I understood it earlier, your position was that illegality where established defeats the erection of the duty, notwithstanding the relationship of driver and passenger.

MR WALKER: Yes.

BELL J: What point were you making then about onus in the context of the discussion in Hall v Hebert in her Ladyship’s judgment at 183 and 184?

MR WALKER: We have put in paragraph 3 of our written reply submissions a citation to Gala v Preston allocating onus in making out the existence of an illegal enterprise and we have gone on to submit that, of the elements in our paragraph 47 in‑chief, (b) and (c) which are the substantive matters, each need to be made out. That is, in order to succeed in defeating a claim, the defendant would have to say the plaintiff was in a joint illegal enterprise or a joint criminal enterprise and the act of which he/she complains has the necessarily relation, without going into it again, with that enterprise.

In Gala v Preston, it is suggested, at the passage we have pointed out that that is the defendant’s onus, that rather makes it look like a true defence, but as your Honour points out, it is the state of the law in this country that it is a defence by defeating the existing of a duty rather than a defence which operates on the premise that there is a duty but there may not be a claim, and then once again, one is tempted to, for a different purpose, to echo what Sir Victor Windeyer said. Perhaps all that matters, certainly from a plaintiff’s practical point of view, is that the claim is defeated by the success of the plea.

My learned friend this morning referred to an unstructured discretion as a canonical expression to denigrate the resort which would be required, so it was said by our proposed solution, to the particular facts of the case. As I said in‑chief, we certainly do not shrink from saying that like all the necessary elements of a negligence claim, if there is such a defence, then of course it should proceed by a careful and appropriate cognisance of the particular facts. That does not make it a discretion, it does not make it unstructured and it does not, in particular, add a subjective element, to use another of the epithets my learned friend deployed, again by reference to some passages of authority.

Joyriding is, of course, not a term of art, although, pace my learned friend’s statements, were one to undertake the bewildering task of searching sentencing remarks in the District Court, certainly in New South Wales, one would certainly find the term, but, no, it is not a term of art or a statutory expression relevantly. What it is, however, is a colloquial expression to describe one of the ways in which one commits serious dangerous driving offences, including dangerous driving offences of the kind that the respondent in this case was charged with, pleaded guilty to, was convicted and imprisoned.

So joyriding certainly does not form any part of section 371A, but that is our very point. The only reason 371A enters in this case is that is the defendant’s best chance of getting complicity and, with respect, for the reasons I have put in‑chief, the absence of the dangerousness element from the offence is a reason to defeat the argument against us.

GUMMOW J: I am still puzzled over this concept of condonation in Gala v Preston.

MR WALKER: Your Honour, in our submission, Justice Brennan ‑ ‑ ‑

GUMMOW J: In matrimonial law, exemplified in Gale v Gale 86 CLR 378 at 385 ‑ ‑ ‑

MR WALKER: “I’ll have you back.”

GUMMOW J: ‑ ‑ ‑ the idea is acquiescence.

MR WALKER: Yes, “It was a fling which I will overlook”.

GUMMOW J: How would the criminal law be acquiescing in anything?

MR WALKER: What exactly acquiescing in is, doing my best – the notion is that the law is smiling, as it were, on one occasion on something which it has or should have frowned on on another occasion. So it is something which has vice about it, that is, it is something that might be condoned. You do not condone things which are virtuous, you condone things which are the opposite of virtuous. So it has vice, in this case it is criminal, but yet, so goes the theory, there is a smiling on it or an acquiescing in it or a waiving of the condemnation of it, to use some synonyms for condoning, by treating it as something which the plaintiff may complain about.

FRENCH CJ: It is a way of disapproving of the implicit proposition that what you did was bad, but not so bad that you cannot recover.

MR WALKER: That is sort of it, yes.

GUMMOW J: It was bad enough for you to be punished.

MR WALKER: Yes. My learned friend referred to the blood relationship point as if that was another of these highly specialised idiosyncratic or subjective matters which involve some morass of facts that are

inappropriate for a common law court to go into. We do not rely upon that, but, of course, as in all negligence cases, nothing to do with blood relation, it is, as one would expect and one sees in contributory negligence cases involving, for example, getting into a car with drivers in various states of unreadiness to drive, it will be relevant to take into account the particular relationship between the particular people, including ages, vulnerability, control and, obviously enough, things like in loco parentis. That is the relevance of the second cousin treated as an uncle. It has got nothing to do with the blood relationship at all. It does not, in particular, have anything to do with having been taught ninja flips by him, and we simply draw to attention the way we put the matter in paragraph 52 of our written submissions in‑chief.

My learned friend formulated the matter as being that there ought to be recognition of the duty of care only where it is compatible with what, the way he put it was, with breach of the criminal statute, but it is to be understood, no doubt, as being with respect for the criminal statute which has been breached. In our submission, our argument accommodates that entirely and there is nothing antithetical between requiring the defendant to have driven carefully, while noting that he and the plaintiff had both, perhaps at different times and in overlapping fashion, been responsible for my client taking, my client and the defendant initially using, and the defendant going on to use after we had asked to be let out. May it please the Court.

FRENCH CJ: Thank you, Mr Walker. Mr Watson, I think you were going to provide some response in relation to the matters raised by Justice Hayne concerning the legislative history.

MR WATSON: Yes.

FRENCH CJ: Can you do that within seven days?

MR WATSON: Yes.

FRENCH CJ: Perhaps if, Mr Walker, you could respond within a like period.

MR WALKER: Your Honours, I do apologise to everyone, there are two other references I should have given, I am reminded. Justice Heydon asked us to consider the setting in which there are insurance and governmental arrangements in place. Could I simply draw to attention comments of which all members of the Bench are well aware, but simply by way of reference. Justice Stephen’s much cited passage in The Dredge “Willemstad” (1976) 136 CLR 529 at 580 to 581, and Justice McHugh in Perre v Apand (1999) 198 CLR 180 at paragraph 130.

FRENCH CJ: Yes, thank you. The Court will reserve its decision. The Court adjourns until 10 o’clock tomorrow morning.

AT 3.21 PM THE MATTER WAS ADJOURNED

[2010] HCATrans 287

Key Legal Topics

Areas of Law

Civil Procedure

Negligence & Tort

Legal Concepts

Appeal

Causation

Damages

Duty of Care

Negligence

Remedies