Miller v Miller
[2010] HCATrans 286
[2010] HCATrans 286
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 WEDNESDAY, 3 NOVEMBER 2010, AT 2.16 PM
Copyright in the High Court of Australia
MR B.W. WALKER, QC: May it please the Court, I appear with my learned friend MR J.A. THOMSON for the appellant. (instructed by Kott Gunning Lawyers)
MR G.M. WATSON, SC: May it please the Court, I appear with MR N.J. OWENS and MR R.A. YEZERSKI for the respondent. (instructed by Tottle Partners)
FRENCH CJ: Yes, Mr Walker.
MR WALKER: Your Honours, the question posed in this case on facts which are not, it seems, in contest is probably, with respect, to be seen in the same terms as Sir Victor Windeyer saw it in Smith v Jenkins 119 CLR 397 at 414. Leaving aside the reference to the law of Rome, which had been, as it were, marched off and despatched, dismissed by his Honour, and adapting it, the proposition in question is, does the common law give a person ‑ ‑ ‑
GUMMOW J: What page, Mr Walker?
MR WALKER: Page 414, at the foot of the page, your Honour. Does the common law give a person a remedy for harm done the person if it arises out of and in the course of the person carrying out an unlawful act? For the purpose of the main thesis we wish to advance, which can be summed up by the notion of causation being the principled link, I would draw to attention his Honour’s use at that threshold in his reasons of the expression “arises out of” and “in the course of”. At a later stage I will come to some criticisms, with great respect, of great weight expressed by his Honour about other phrases.
GUMMOW J: But his Honour there is talking generally, is he not?
MR WALKER: Yes, and that, of course, is why it is the particular questions his Honour posed, first of all is the proposition correct? That, of course, could be understood either as a generalisation with many exceptions or at all. Second, how far does it extend? It is the second that really occurs because it can scarcely be doubted, and from decisions of this Court it is clear, that there are circumstances in which the civil law ceases to be available by dint of a circumstance added to facts that it would otherwise give a remedy in the nature of illegality or criminality whether in breach of enacted law or otherwise. That will not suffice to answer this case though.
GUMMOW J: I can understand that you have had to frame your submissions with a view to the joint illegal enterprise notion.
MR WALKER: Yes. Your Honours will be aware that the pleading and the way the parties conducted the case set our course; see page 13 of the appeal book, paragraph 6.
GUMMOW J: But that idea does not necessarily spring out of Henwood.
MR WALKER: No, not at all. Maybe I will anticipate your Honour. There is a deal of common ground between us and our friends in relation to the significance of it being a joint criminal enterprise and it may be, perhaps, with respect, understandably, that our learned friends have started at shadows in the care they have taken to point out that there is, to use their language, unilateral illegality or criminality that is on the part of a plaintiff alone, a civil plaintiff alone, which may or may not, depending upon circumstances, affect the availability of what would otherwise be the civil remedy. Henwood, of course, is a case of when it did not.
GUMMOW J: No, but the particular passage in Henwood, I think, was at page 459 of 60 CLR, the bottom of 458, where Sir Owen Dixon talked about what it is that supplies the connection between the illegality or the criminality and the injury. Then since Sir Victor Windeyer spoke in Smith v Jenkins, the Court, as well as deciding Gala v Preston, later has looked at illegality and criminality in trust.
MR WALKER: Nelson v Nelson, FJ Leonhardt ‑ ‑ ‑
GUMMOW J: Nelson v Nelson and, most recently, in IATA.
MR WALKER: Yes.
GUMMOW J: Now, bearing in mind those general propositions that you started off with, Sir Victor, in that case ‑ ‑ ‑
MR WALKER: They are questions. He was not stating that as a proposition and he was, as your Honours would be aware ‑ ‑ ‑
GUMMOW J: What I am really asking you is, why is it that we get immediately locked into some construct of joint illegal enterprise in a box called “tort” and in a sub-box called “negligence”?
MR WALKER: May I attempt to answer those, with respect, large questions now?
GUMMOW J: I will be quiet in a minute. The other thing I wanted to draw to your attention was that in Jackson v Harrison 138 CLR 438 Sir Anthony Mason at 455 drew attention to the enormous range of illegality and criminality. Should that play some part?
MR WALKER: Yes.
GUMMOW J: We have said in the other cases that it does.
MR WALKER: Yes. Now, the Court has also said that – if you will permit me the boldness of suggesting what this Court has said on this topic, it has spoken with a number of voices, with respect – but it has said pretty consistently that it does matter what kind of law is in question. Your Honours will have seen the four cases that the parties’ arguments seek to use as poles, and maybe as points of departure, and they neatly divide into two and two in terms of defeating a claim and not affecting a claim and the reasoning, both for the decisions and the reasoning in broader justification of the doctrinal approaches by the various justices – I will come to this in detail later – definitely include recognition of a difference that ought to be effected upon a plaintiff’s claim, given a plaintiff’s illegality, depending whether the law falls into one or other different kind or category.
Where the voices in this Court have been really very various is at what level you categorise cases and, indeed, whether any categories are sufficiently stable to provide the makings of a rule. The closest candidate has been the category of safety or industrial hygiene, and a similar regulation, which seems uniformly to have been treated as laws which ought not to deprive an injured plaintiff by reason of a breach committed both by the plaintiff and the defendant.
HAYNE J: But if that is so, and that may be a large qualification, if that is so, the answer lies, if at all, does it not, in what Justices Dixon and McTiernan said in Henwood at 463 where their Honours had, I think by then, had they not, rejected the causation analysis and were concerned, at the paragraph commencing at about point four on the page of 463, to look at what one gleaned from the statute?
MR WALKER: Yes. Now, I do not think I have answered any of your Honour’s questions yet and, with respect, they have covered a lot of the ground I am going to put in my argument, but can I take that last matter that Justice Hayne has raised with me up immediately. You will have seen reference in our written submissions, and I think in our opponent’s submissions, and your Honours will, of course, seen in the four authorities that are the subject of those submissions, references to either the inadequacy of the statutory interpretation technique or its inaptness in many cases to yield the answer to this question in a negligence case, that is, there are some statutes which might, by dint of their subject matter and certainly by their means of expression and evident purpose, yield an answer to the question, is it intended, if I may say so Project Blue Sky style, is it intended by the legislature so enacting that somebody will be or will not be deprived of a cause of action that would otherwise arise from the facts?
GUMMOW J: Leonhardt puts it at a higher level than intention, does it not?
MR WALKER: Yes. I do not intend to put it differently from FJ Leonhardt, the water driller’s case. It can be seen that there is a similar kind of technique engaged there as the Court considered for a quite different purpose, but also one to do with consistency between common law tort, common law negligence and statute, in Sovar v Henry Lane for example, where again the investigation is and remains one of statutory meaning as to whether the statute yields an intention that there be a private cause of action for breach of the enacted law or not. There is a familiar, if not always straightforwardly applied, catalogue of factors such as what can be inferred from the nature of the penal provisions, if any, attached to the obligation, etcetera.
Now, that is another aspect of the law, apart from those that Justice Gummow raised with me, that needs to be considered as a general setting in which one applies to the particular case of a negligence action in an otherwise very familiar field, namely, motor vehicle accidents, the general question or proposition about which Sir Victor Windeyer asked those basic questions and, with respect, the various reasonings, to which I will be going in my address, in the four authorities in this Court to which we have all made reference provide an answer, we say preponderantly, in favour of what we offer, namely, that causation is necessary.
It may not be sufficient, but it is necessary in order for the illegality to provide an answer to the claim, though, I hasten to say, there are statements to which we will draw attention and have in part in writing that are against that and, I hasten to add as well, we do not suggest that some statistical word or mention count, a kind of citation index, has any part to play in the argument. But, we submit, the explanation of principle that you see in that sequence of four cases, reinforced as it may be by drawing on matters of principle from the trust and contract areas to which reference has been made, do not, in our submission, one, preclude this Court now saying that causation is necessary and, two, certainly does not preclude this Court explaining that causal necessity in a way that we submit would produce success for our client in this case.
KIEFEL J: In what sense are you referring to causation? Could I be clear about that? Are you speaking of it in its usual sense as the element or test of an action or are you speaking of it in a more discrete sense?
MR WALKER: I am speaking of it in the usual sense necessary for two other things in a negligence case; one, the link between the defendant’s conduct and the plaintiff’s loss that might be called the ordinary sense and, two, the link between the plaintiff’s conduct and the plaintiff’s loss relevant to a contributory negligence adjudication. We would submit that they are the same. They were the same in those two and, for reasons we will seek to develop, they ought to be the same for reasons, indeed, of coherence. They ought to be the same if illegality is ever, as a matter of doctrine, to be an answer to what would otherwise be a good claim in negligence.
HAYNE J: Can I understand better than I do what you mean by that. Are you saying that the plaintiff’s illegal conduct must be a cause of the loss of which the plaintiff complains? Is that the proposition that is being floated?
MR WALKER: Your Honour, it is tempting to say yes to that proposition, particularly giving emphasis to the notion of the plaintiff’s illegal conduct, but I am bound, I think, on authority, and given the nature of a joint criminal enterprise as a matter of crime and general legal reasoning, also to take into account what might be called the nature or incidence of the enterprise in which the plaintiff and the defendant are participants.
HAYNE J: Because the bare question, was the plaintiff’s illegal conduct a cause of the plaintiff’s loss, is a question considered and rejected as a suitable path home in Henwood.
MR WALKER: Quite so, but we say – and this is common ground between the parties – we say that we start in this country – and there is no suggestion that any one at the Bar wishes to change that in this case – we start with the proposition there is not, as the books have it, outlawry descending upon all and any species of illegality in the course of conduct which supply – my word, not the book’s word – the narrative – I am trying to pick a neutral expression – the narrative put before a court in order to get a civil remedy in negligence. I use the word “narrative” to try and avoid the notion of pleading. I do not want to avoid it permanently, but it is not at the forefront of our argument, and also to defer as well the questions about the propriety of a court entering into examination of the facts of a criminal enterprise in order to evaluate such things as a reasonable standard of care. That is a different topic which I will come back to as well.
CRENNAN J: You are getting away from the idea of condonation of the criminal act with the test you are proposing, as I understand it.
MR WALKER: Yes. It has to be said, however, that there still needs to be some explanation, reason or justification for why illegality matters at all. In this Court Justice Murphy is the only Justice who has ever proposed that, in effect, all can be swept away and dealt with by other mechanisms. I am bound to observe one way of reading his Honour’s words, though not literally, would be that they include a form of causal reasoning. Now, I am going to deal with the condonation matter. I am going to deal with it at two levels. First, to show that if condonation means what we will suggest it ought to be understood to mean, which largely draws on Justice Brennan’s own words in the same set of reasons, trespassing upon the function of the criminal law, then there is no such condonation threatened by success for my client in her negligence claim. That is the first thing.
The second, that if condonation be understand more broadly in a way I think that might be attributable to Mr Justice Kitto, for example, namely, that there is a validity lent – or Mr Justice Dawson as well, in fact – there is a validity lent to illegal transactions by them being used as the foundation of a claim, then, in our submission, that is far too diffuse a notion either to support anything useful in the nature of condonation or anything sound or appropriate as an answer to a negligence claim.
GUMMOW J: I wanted to put to you that is probably a more sophisticated treatment than the judgment you have just referred to by Justice McHugh in Nelson v Nelson – it seems to have escaped your list – it is in (1995) 184 CLR 538 at pages 612 to 613. I will just read it out:
First, the sanction imposed –
Here, denial of a remedy in tort –
should be proportionate to the seriousness of the illegality involved. It is not in accord with contemporaneous notions of justice that the penalty for breaching a law or frustrating its policy should be disproportionate to the seriousness of the breach. The seriousness of the illegality must be judged by reference to the statute whose terms or policy is contravened. It cannot be assessed in a vacuum. The statute must always be the reference point for determining the seriousness of the illegality; otherwise the courts would embark on an assessment of moral turpitude independently of and potentially in conflict with the assessment made by the legislature.
MR WALKER: Yes, your Honour.
GUMMOW J: Now, you accept that, I think?
MR WALKER: Absolutely, we do accept that and, in particular, we will be laying emphasis on the notion which goes to what Justice Crennan asked me about the notion of condonation, the notion of the major trespass on the area and function and discharge of function of the criminal law, by adding, we would submit, arbitrarily in the case of certain offenders, a tremendously crushing and huge burden either in physical or in correlative financial terms, out of all proportion to what Parliament has provided and the criminal courts administer, as the sanction for the conduct in question.
HAYNE J: That is the second point Justice McHugh made in the passage immediately following that to which Justice Gummow referred at 613.
MR WALKER: Yes. When a criminal statute says that the penalty is five years imprisonment and other laws permit it to be less obviously or to be suspended or there have to be bonds or fines, whatever the regime is from time to time, then it is to those statutory provisions, that is, the jurisdiction and power of the criminal court – I do not mean they are separate systems, I mean the court administering the criminal law – that one looks in order to understand the consequence for a person of committing the offence.
I have to add, if prosecuted and convicted, because in this country the law does not permit me to say that conviction is necessary. In some statutory regimes that your Honours may have read discussions about and certainly in some of the common law of the various American states, conviction becomes inserted as a requirement. It is not possible for us to argue that here and it would be perverse to do so standing here for this client, for obvious reasons.
HAYNE J: I know I am interrupting you again, Mr Walker, but if I may be permitted to do so.
MR WALKER: Not at all, your Honour.
HAYNE J: Are we not to begin consideration of these questions by beginning at a point marked out, if you like, at Yango, probably Yango plus Nelson plus Leonhardt plus IATA, and not to begin consideration of the questions at a point that is, as Justice Gummow put to you, in a box marked “tort” and a sub-box marked “negligence”, that is, the significance that the law attributes to conduct being in contravention of, in this case, statute must have a certain coherence to it?
MR WALKER: My answer is a little complicated. In substance, I hope your Honours have seen, I hope your Honours will, when I sit down, have seen, that we enthusiastically embrace the notion that under the rubric of coherence, factors apply in this case or this argument in our favour and, in particular, what might be called the proportionality aspect is in our favour. Next, the administration of the criminal law by criminal courts with punishments that are fixed in advance as to maximums, et cetera, and which do not include the visiting of civil disability retrospectively, unless that is, of course, what Parliament has provided in the criminal statute.
GUMMOW J: What did it provide here? What is the offence? It is not stealing, is it, because it is not ‑ ‑ ‑
MR WALKER: No, it actually is stealing.
GUMMOW J: Well, that involves permanent deprivation, does it not?
FRENCH CJ: It is called stealing, I think.
CRENNAN J: It is taking and using, is it not?
MR WALKER: Yes. That is why I say it actually is stealing. It is not stealing as a matter of ordinary English because ‑ ‑ ‑
FRENCH CJ: It used not be possible to charge stealing for this offence because of the want of any element of intent to unlawfully ‑ ‑ ‑
MR WALKER: Yes, you can have your car back once I have got home, yes.
FRENCH CJ: Exactly.
HAYNE J: Slightly part worn.
MR WALKER: Yes, it is to an owner a very unsatisfying answer. That is why these laws have all been passed, of course. The asportation and intention permanently to deprive can be – the asportation is easy enough, but the intention permanently to deprive can be enacted, in effect, out of existence. Section 371A of the Criminal Code has separated out three forms of conduct; a person who uses a motor vehicle, a person who takes a motor vehicle for the purposes of using it and a person who drives or otherwise assumes control of the motor vehicle. In each case it is preceded by the word “unlawfully”, which of course is an explicit cue to the fact that there will be the usual answers, such as, as is enacted in the Code, section 24, mistake of fact, but there is also a claim of right that can be relied upon.
The penalty for stealing is found – we have not given this to you for which I apologise – in section 378. The default provision – if no other provision is provided, see section 371A, no other provision – is imprisonment for seven years. It is no trivial offence. It is no mere regulatory quirk of a busybody government. It is a serious piece of conduct dealt with seriously by the criminal calendar.
HAYNE J: And at the relevant time, was 378(2) in force, namely, if you drive it recklessly or dangerously, the penalty goes up to eight?
MR WALKER: I think the answer is yes, but might I check, your Honour?
FRENCH CJ: What is the position in respect of the appellant using the motor vehicle at the time of the accident, having regard to the finding as to the request to be let out?
MR WALKER: Yes. Well, it is a little awkward for us, in this sense. You will see at pages 89 to 90 of the appeal book, in paragraphs 87 to 90 – I will not take you to it – you will see Justice Buss records, with great respect, accurately a passage in argument in the Court of Appeal when what the Chief Justice has raised was raised and was not adopted by us. In our submission, it was a good argument that for the purposes of the criminal statute, you could show by sufficient demonstration of repentance and, as the circumstances permitted – and I have to emphasise that – as the circumstance permitted, action to act upon that repentance, you could cease to be using a vehicle. It makes sense obviously that you do eventually cease to use a vehicle you have taken, contrary to 371A.
HEYDON J: That is not quite the point of the dialogue though, is it, on those pages? Justice Buss was inquiring whether a fresh duty of care could spring up at the moment the plaintiff protested, and he did not get an answer. But can I ask a second question, if it is not too confusing. Does any of this matter? This is a point of law really. It does not turn on any contested issue of fact that might have called for fresh evidence at trial. No Suttor v Gundowda difficulty. So if you are enamoured of the point, why cannot it be run now?
MR WALKER: Your Honour, with respect, as I say, it is a little awkward for us, but it should not be a bar, no. Certainly all the evidence was in. I cannot say, it is not the case, that the trial was run on that basis, but I am not aware that there is any circumstance that would ‑ ‑ ‑
HEYDON J: I have cut across the Chief Justice’s question, which is, can your client be said to have moved from a state of criminal activity to innocent activity when she began to protest?
MR WALKER: Yes, and, in our submission, it is not protest in general terms, it is not even the protest along the lines of “slow down”, it is the request to be let out, in our submission, in that context, preceded by those protests, should have been held, perhaps I should say should have been argued, to have produced a cessation of her use and thus a cessation of her membership of, to use the jargon, a joint criminal enterprise. Now, clearly enough, there has to be some close analogy between that kind of argument and arguments in a true criminal case, such as a conspiracy case or another complicity case, but, in our submission, these facts would easily match that for a criminal case as well.
If people, in the enthusiasm of youth, late at night take a car to use it for a joyride and shortly thereafter decide this is the worst idea they have ever had and they wish it to cease, so long as they take reasonable steps, both by communication and as circumstances permit other action of avoidance or removal, then, in our submission, they will be able to rely upon that (a) in crime and (b) therefore, in this civil case, to say the use had finished, therefore, the complicity or membership of the joint criminal enterprise had finished.
KIEFEL J: Does it complicate matters a little that the notion of a joyride, which appears to influence some of the cases to which you have referred, is actually not an element of the offences? It is an additional characteristic which might go to penalty. I notice here that reckless driving, a special penalty may attach under section 378(2).
MR WALKER: That is right.
KIEFEL J: So it has that characteristic. But if we are talking about degrees of illegality and we are looking to the statute to give us some guidance, is it problematic that here we are talking about a characteristic or a behaviour to which a party may or may not have agreed, but it is not actually part of the offence itself?
MR WALKER: Your Honour has asked me a question which involves two notions; one, does it make things difficult and is it problematical? The answer is yes to each of those and, I venture to suggest, with respect, for both parties. The way through that problem, in our submission, will be supplied, we hope, by what we put as our causation thesis but can be more particularly explained as follows. If the statute indicates either by leaving to other provisions altogether, such as those which deal with reckless driving or driving in a manner dangerous or causing death or injury by driving, they are all concrete in this case, they are not hypothetical, if the law otherwise deals with aspects of behaviour which can be seen to have been that which caused the plaintiff’s loss, the dangerous driving, then that is an indication, with respect – if one had to use – and this goes back to Justice Hayne’s question to me – if one had to use the approach of what does the statute tell us about any possible effect on civil remedy, then we would say that if the elements of the offence do not include that character of conduct which has caused the loss, then there can be no place for this doctrine under whatever name it should travel at all.
KIEFEL J: You just leave it to be determined by contributory negligence?
MR WALKER: Exactly so, and that is a general comment I wanted to make but which is useful to make after the questions I have tried to answer from your Honours, and that is that this is a case being argued, as indeed most of the cases in this area have been argued, at a time when, to use the expression of Mr Justice Mason, it can be seen that contributory negligence as an answer in tort has declined, as his Honour put it, to a question of apportionment. That has raised, as a number of the commentators have pointed out, including in material we have drawn to the Court’s attention, that has, as it were, by one tide receding, left apparent the rocks of this supposed illegality defence, as it is unfortunately sometimes called.
CRENNAN J: Does something turn on whether the type of illegality involves the hazard of recklessness? In other words, joyriding ‑ ‑ ‑
MR WALKER: We say it does.
CRENNAN J: Yes So you have to make some distinctions there because, with motor vehicle offences, things like joyriding may have that hazard of reckless driving where stealing a car to drive home may be in a different category, I do not know.
MR WALKER: Your Honour, that is what I was trying to get at in answer to Justice Kiefel. We say that, particularly if you are starting with a statute, it is appropriate to observe that this statutory provision, which is the only one they relied upon – I stress, the only one they relied upon – never said we were in a joint criminal enterprise to drive recklessly or to drive drunk. We say that this is something which, on the face of the statute, read properly and in the context of all the other provisions which are focused on dangerous driving, et cetera, shows that it is not the use of the vehicle which caused the injury. It was the dangerous driving by the driver of the vehicle.
In fact, one knows from this statute that use is either broader than or perhaps different from driving because of this particular provision in paragraph (c) in relation to driving. So, in our submission, yes, it is critical to observe that there is no element of dangerousness required by this statute. However, against myself, I think, I should draw to attention that in Smith v Jenkins 119 CLR 397 the actual provision is at that first page, 397. Could I draw to attention a slightly different phrasing of the Victorian provision of the cognate offence, namely:
Any person who takes or in any manner uses –
I stress “in any manner uses” –
or attempts to take or in any manner use any motor car without the consent –
et cetera. Now, those express words “in any manner” are, in a sense, supererogatory and that the same meaning comes from the Criminal Code (WA), 371A, which is concerned in this case.
HAYNE J: I suspect that a competing point of view to that which you are advancing would be that prohibition on pain of penalty by 371A of unlawfully using a motor car is not consistent with the civil law requiring that that unlawful using occur carefully. Now, that is the competing point of view, I think.
MR WALKER: Yes. It might be convenient if I deal with that very quickly, but I should conclude, having started on it, what I ventured might be a point against me in final answer to Justice Crennan, notwithstanding that quite explicit “in any manner”, in other words, it did not have to be reckless, it did not have to be dangerous – we know the result in Smith v Jenkins and I am going to explain that as an understanding that this was an offence conceived with an intent to carry out a joyride and, in fact, before the accident having been carried out in an extremely dangerous fashion following a violent robbery to get the car.
So that is why we say this probably fits in, we say, looked at now, after proximity has been put, if I might put it this way, into a different box, after Cook v Cook has been cooked in Imbree v McNeilly, it may be that looking back on these four cases, we do not seek to disturb their results. We plainly do rather more than cavil with some of the expressions of reasoning, but we say that there is a strong preponderance of elements in the reasoning which do require, as we submit, common sense and a sense of the fairness that pervades this area of jurisprudence would require, that there be a causal link between that which the plaintiff may be condemned for, namely, the illegal conduct, and the plaintiff’s loss for which he or she seeks compensation.
BELL J: Just while you are on that point and following up on the matter that Justice Crennan raised with you before you moved to Justice Hayne’s query, in Jackson v Harrison (1978) 138 CLR 438 at page 460 Justice Jacobs makes the very point, with respect to Smith’s Case, that is was a joyride, and his Honour goes on in the middle of the page to say:
I doubt that the decision would have been the same if the accident had occurred days, weeks or months later when the circumstances of the taking of the vehicle had ceased to have any significant relationship to the manner in which the vehicle was being used.
MR WALKER: Your Honour has spared me the need to later draw to your attention a passage which we have double underlined with an asterisk, yes. Yes, of course we submit that that is judicial reasoning which, though not using the language, is plainly saying what is the causal role, what is the significance or materiality in terms of producing the consequence that the plaintiff complains of civilly of the criminal conduct. Yes, we very strongly rely upon that subsequent application in a manner that enjoyed a majority support, that subsequent applications to Smith v Jenkins, insofar as one can just say Smith v Jenkins as if it stood for a consistent single body of doctrine, which it does not.
KIEFEL J: Nevertheless, I mean, you are separating, say, the joyride from what can be regarded as the illegal act.
MR WALKER: Yes.
KIEFEL J: But, for instance, in some cases the joyride, one hesitates to use the word proximate, but it may be part of the unlawful use. It may be seen as part of the unlawful use, although not an element necessary to be satisfied to constitute the offence.
MR WALKER: Yes, it may. Now, your Honour, with great respect, this brings me to the point of a number of strands coming together. We talk about the offence and we have the advantage, which we wish to keep a firm grasp on, that the only offence was 371A. That is what the parties fought the case on. You will not see it in the pleading, but it is how the case was run. We have got the references in our written submissions. There were, of course, other offences committed. They did not have the virtue of so plainly, with the aid of my client’s own admissions, indeed, in her statement of claim, a plain admission of her role in stealing and by inference, notwithstanding her denial in her reply – see pages 13 and 14 – also the initial use of the vehicle after the stealing.
You could not so plainly say of dangerous driving or of drunken driving that she was complicit in any relevant sense, but, in our submission, those other offences do not fall out of consideration when this doctrine, if there be one, is under consideration simply because the defendant does not select them, they lacking the highly necessary aspect of complicity by the plaintiff. They remain a critical and, indeed, in our submission, an overwhelming part of the reading of the offence provision in question. The offence provision in question is not aimed at dangerous driving. I need to add ‑ ‑ ‑
FRENCH CJ: You get loaded up if you do.
MR WALKER: I am sorry, your Honour?
FRENCH CJ: You get loaded up with an additional penalty.
MR WALKER: Exactly, and it makes our point good. I need to insert there pace comments by Justice Brennan in Gala v Preston, to which I will come later. With respect, those comments really should be read as meaning it is a social phenomenon of which judges ought to take account, that people who steal cars are not the prime candidates for drivers of the year and that they will also, not unusually, be in circumstances where evading lawful arrest pursuits, so‑called, could happen with all the horrors that they entail.
HEYDON J: So you do not dispute the factual assertions that Justice Buss advances in paragraphs 79 and 80, which is on page 87 of the book, about the foreseeable risk that a driver might not drive carefully and the risk that he might refuse to comply with directions and the risk that the police might have a report made to them which caused them to pursue the case?
MR WALKER: We do in only one respect, but it is a critical respect. They, in our submission, are simply not risks of which it can be said in any way the plaintiff was complicit. If one looks at the facts in this case; Uncle exerts the authority – he is called Uncle, treated as Uncle – exerts the authority to drive them all home. That, in our submission, justifies disputing that the plaintiff was complicit in, knowledgeable of, significant and reasonably foreseeable risks involved with what is called there the joint criminal enterprise. Particularly that is so in relation to that he might not exercise the degree of care and skill expected.
If one were looking in a different but related context of a plea, as was made but abandoned in this case, of voluntary assumption of risk, then, in our submission, there was never any factual foundation for findings of the kind you say in paragraph 79 adapted to a voluntary assumption of risk finding. There is no evidence of knowledge and appreciation of those matters. As to statements of what might be called social observation concerning the use of stolen vehicles, there may be some merit in aspects of the commentary in paragraph 79, but, in our submission, it does not come about either by the elements of the offence with which the plaintiff is, on the argument, fixed in a joint illegal enterprise, nor in terms of her actual knowledge and what it might be inferred was what she appreciated about the risk she was undertaking at the time.
KIEFEL J: Testing the question of not being the distinguishing feature of a joyride or reckless driving as part of a joint enterprise, which would put the facts of this case to one side, but just testing the distinction that you were discussing before, in cases where the reckless driving may not be an element of the offence but is nevertheless very much part of the circumstances in which the offence is committed, if you leave it just to contributory negligence to determine the question of whether it is possible to attribute a duty of care, are you not drawing the court into an assessment of conduct occurring in the middle of a criminal activity? That is to say, you might not be drawing ‑ ‑ ‑
MR WALKER: Yes, and nonetheless ‑ ‑ ‑
KIEFEL J: Then you have a policy. You have both ‑ ‑ ‑
MR WALKER: We say none the worse for that. We submit it is a ghost of no substance whatever that there are things the court does not want to be drawn into. Every time there a Joslyn v Berryman case, the court is drawn in to the sordid history of whatever social interaction involving alcohol and other intoxicants went on for hours beforehand, the astonishing risk taking of those who pile into the motor car and the hair rising way in which the driving, et cetera, then ensues. No common law court has ever said “But there is a plethora of criminal offences committed here. We will not look at any of it. You can sort it all out for yourself. The law will not assist any of you, and we particularly will not descend to ascertaining who among you in the back seat may have been either a true innocent or a relative innocent”. The law has never said that. That is the wolf’s head approach; we do not do it, we have never done it. Joslyn v Berryman could not exist as an authority if that is how one proceeded.
So, yes, it is true what we put and, indeed, what we suggest the respondent will be putting as well, will involve in such cases always an examination of the conduct alleged by the defendant to be criminal and involving the plaintiff jointly. In this case, there was not much of a contest, although I draw to attention again the way in which issue was joined in our pleaded reply, significant for what we say is the possibility of ceasing the use once we ask to be let out, but in many a case there will be a contest. The plaintiff says, “I was not involved in a joint criminal enterprise”. Well, the court does not have a choice then. The issue is joined. The evidence will be given and the court will have to sift through the factual material at a level of real detail to work out whether it is true, the plaintiff was involved in the pleaded joint criminal enterprise.
KIEFEL J: But, in the end, does it involve the court in saying in conclusion, yes, there was an unlawful use but the court requires that that use, albeit unlawful, must be careful? I think that is a matter Justice Hayne pointed out.
MR WALKER: Yes, that is Justice Hayne’s question, and I apologise to all of your Honours, but particularly to Justice Hayne for having come back to it so late. May I do so now. As I was saying, the accompaniment of a provision like section 371A surrounded by, either in this Act or in any other Act, enacted offences aimed at dangerous driving, drunken driving, overloaded vehicles, excessive speed, failing to keep a proper look out, failing to maintain proper control, that whole constellation of possibilities, is highly significant in seeking to understand what, if anything, can be got from the intention of the legislature in 371A as to its effect on what happens if the use in question happens to have been, in this case, in breach of a number of these other provisions.
In our submission, there is no absurdity in the law saying that if you steal and use a motor vehicle, you will remain subject to all elements of the traffic code, as well as all elements of the more serious Criminal Code governing the management of that vehicle. To have it otherwise would be the most appalling modern form of outlawry, that is, you are not only deprived of your own remedies, but apparently you are not bound by other people’s laws either. Now, that would be truly absurd and would be the very opposite in a most perverse kind of way, the very opposite of the condonation which is offered by the other side on the basis of Justice Brennan’s reasoning as an answer to this case.
So the first step in my answer to Justice Hayne’s question is, well, of course, if you do take somebody else’s car and use it against their consent, you are not thereby dispensed from compliance with keeping an eye out for those on the right, travelling within the speed limit, slowing down for school children, et cetera. Nothing about your having infringed one element of the Criminal Code renders the wording of any other element of the Code or any other Act inapplicable to you. If anything, the social need for those who have displayed themselves irresponsible in one regard, to observe the strictures that all of us are meant to observe, would be the more telling, not less telling. But, of course, as Justice Brennan has put it, the significant element here is that all are equally bound and all elements of the law are to be obeyed.
HAYNE J: That tells us about the position of Uncle Maurin. It does not tell us anything yet about the position of Danielle.
MR WALKER: No, but it is important to start that way because it is joint criminal enterprise.
HAYNE J: Yes, I understand that.
MR WALKER: It is important to start that way because of the anomalies of the kind that Mr Justice Mason has identified, to which I will come a little later. One has to consider the position of the defendant who has been, on the hypothesis of the respondent, spared the civil liability as against somebody who is not committing any criminal offence who, if Henwood applies, will not be spared any civil liability. If Henwood applies, of course, is a large question, but turns upon the kind of exercise that I am essaying in answer to Justice Hayne. So the first step is, no, there is nothing in 371A or in legal principle which would permit the use, within the meaning of that section, of a vehicle to be other than careful, by which I mean in compliance with the law, including the tort law.
Now, that must be so, and we know that to be so, in relation to the utterly innocent pedestrian crossing early in the morning in Perth and this car comes along. Nobody has ever supposed that it would be in answer to that pedestrian’s claim to be compensated for her injuries suffered when struck by the car driven by Uncle, that there was in some way an absurdity involved in requiring his illegal use to be reasonable, or his illegal use to be careful, or his illegal use to comply with the traffic laws. It is not only not absurd, it is de rigueur that his use be required to answer all those elements of the law.
So the question then comes, is there anything in 371A or in the provisions that the defendant is not relying upon as providing an understanding of what 371A does, is there anything in 371A that says anything about the unavailability of a remedy for somebody who is complicit in the taking, or complicit in the use, assuming against myself that my client remained complicit in the use at the time of the collision? The first thing to be said is the text is a very unpromising foundation for such an argument. It certainly does not say any such thing, and that is an observation that draws upon similar comments that your Honours will have seen in the authorities, to some of which I will draw attention later, suggesting that it would not be expected that ordinary criminal statutes – perhaps one can put to one side safety and industrial hygiene statutes at the moment – but ordinary criminal statutes would not ordinarily be expected to yield on their face a concern for how, if at all, an offender would be affected in his or her rights to claim damages for negligence.
The next thing to observe is that, seen in the context of the other provisions which do criminalise the dangerousness of the driving, in our submission, it cannot be seen that that which the plaintiff has done illegally, which is to be complicit in taking, that had no effect on her injury, the taking, or the using just as using, that that equally had no effect on her, if it had just been used, she would still be sound of body. What was done, not criminalised by 371A but rather, specifically recognised as an extra or different element, 371A(2) – which, by the way, was enacted at the time of this accident – what one can say is that her injuries came about by something that she was never complicit in.
Now, that is why the joyride – to mingle an answer to Justice Hayne with my answer to Justice Kiefel – that is why the significance of a joyride intention, that being the plan with which people set out, will be problematical or difficult in the sense that it requires sorting out the facts and attributing states of mind but, in our submission, none the worse for that in a negligence claim, for reasons I will come to in a moment. If it can be seen that the very purpose of the criminal conduct was to carry out a joyride, then all one can say about the pleading of the defendant in this case – and by that I mean the way they ran the case – was that they have just undersold themselves by attaching only to 371A and it is artificial to say that somehow the dangerousness of the driving raises a problem in this case because dangerous driving is no element of 371A(2).
Quite so, is the answer, but you cannot have it both ways. You want to make the plaintiff complicit, but you can only make her complicit in those things which are the elements of the offence in question. If there is another offence which really matches what the defendant did that damaged the plaintiff, dangerous driving, and you cannot make out the plaintiff being complicit in it, then there is no such defence. That, in our submission, very satisfactorily reconciles the position, ultimately, without difficulty. There may be factual difficulty on the way as to whether she was egging him on, and in an ordinary joyride case there will be no problem about investigating that, though there may, of course, be difficulty if people have been sufficiently badly injured, as in Smith v Jenkins.
HAYNE J: How does that analysis sit, if at all, with the inquiries of the kind suggested in Leonhardt, et cetera, for it is erecting a distinction that makes, at least as I understand the argument thus far, scant reference to the statute? It says that there is legal use and there is illegal use.
MR WALKER: No.
HAYNE J: No?
MR WALKER: No. All that is necessary for the offence is illegal use and the plaintiff is not jointly involved in that which is further or extra; see 378(2). I think I wrongly called it 371A(2). It is 378(2), the penalty provision. It is extra and different. She cannot be tied in complicitly with it, whereby there is no call to apply the doctrine in answer to her claim at all and that is because that which caused her loss is not that which is any part of her illegal complicity. That is starting and finishing with the statute and saying the statute that you, on these facts, have her complicity in offending against does not involve – and factual issues cannot be shown to be involved in – any element of dangerousness.
HAYNE J: But is the argument then that 371A does not speak at all to civil liability? Other offences of dangerous or reckless driving do?
MR WALKER: Yes, and that is entirely satisfying, because the pair of malefactors, who get each other drunk or join each other in getting drunk, decide to steal a car and go for a joyride will not just be the driver who can be found guilty in relation to the dangerousness, indeed, in many cases it would be a paradigm case for a conspiracy.
FRENCH CJ: Is there a general proposition implicit in this that the offence so‑called of illegality will not apply where the subsistence of the legal right or liability which is asserted by a plaintiff, be it tort, contract or anything else, is compatible with prohibition which has been contravened?
MR WALKER: Yes, that is one way of putting it.
FRENCH CJ: In this case you say the subsistence of a duty of care is compatible with contravention of the prohibition against using the vehicle unlawfully and the driver not being excused from that duty by – or the passenger, assuming the continuing joint enterprise, not being relieved of the enjoyment of it or the driver of the duty to take care?
MR WALKER: That is right.
HAYNE J: Am I to assume under WA law that there is an offence of careless or negligent driving?
MR WALKER: Yes.
HAYNE J: If that is so, where does that fit in this spectrum of illegalities that do or do not disqualify civil recovery? I would have thought it could be a large proposition to say that any driver who drove carelessly was disabled from recovery and anyone complicit in that was disabled from recovery. You say, though, that if you drive recklessly or dangerously and are complicit in that?
MR WALKER: If you are complicit ‑ ‑ ‑
HAYNE J: The root of my question is this, Mr Walker. What is it that you say engages or does not engage principles of the kind that are spoken of in Leonhardt and those other cases?
MR WALKER: The first question which those cases really do not speak to because it did not arise on the facts – I mean, in FJ Leonhardt someone wanted to be paid, but there was an omitted licence. In no sense was the consequence of loss under the contract, that is not being paid, in no sense was that caused by or would anyone ever have dreamed of saying that is caused by there not having been a licence. It was a pretext fastened on, no doubt, but that is not the reason why there was not payment.
In adapting for negligence where there is no element of an agreement made in breach of the law or a relationship founded on a breach of the law, either Leonhardt or Nelson v Nelson, there is an immediate need to find out whether that of which the plaintiff complains – I am trying to use a neutral and general expression so as not to beg the question – comes from, to use Justice Windeyer’s expression “arises from”, the conduct which is attributed to the plaintiff as the disqualifying factor; criminal conduct or conduct in breach of the law, illegal conduct.
The next step would be to say that if the statute does not say anything one way or the other – first of all, expressly and that is this case – then one may move and perhaps should move to asking whether the statute’s evident intention or an understanding of the statute so as to give effect to its purpose requires that the plaintiff be denied what would otherwise be her claim.
We submit that there is certainly nothing on the face of this statute that would do so, not least because it is far from absurd to have required this illegal use of the vehicle to have been careful or, to put it another way, if you sign on for taking and using a car to go home, it should not be taken, contra Justice Buss at his paragraph 79, that you have signed on for a helter-skelter rampage not on the direct and careful route home, let alone by a drunken driver. The facts in this case, not in contest, cannot attribute to and do not attribute to the plaintiff sufficient knowledge of drunkenness so as to make her complicit in that aspect of the matter.
HEYDON J: Whether or not there was a crime committed, is not open to infer from what she knew about the driver that he probably was intoxicated?
MR WALKER: No.
HEYDON J: Even though there was a two‑hour gap, I think it was, in which he was not in her company.
MR WALKER: If by intoxicated one means that inevitable effect of any alcohol, yes, but that is not an ordinary understanding of intoxicated. So sufficiently to be affected in a manner dangerous, itself involving, of course, the committing of an offence by him, no.
HEYDON J: This evening started around 9.30, did it not?
MR WALKER: Yes, but she was not in his company all the time.
HEYDON J: For two hours?
MR WALKER: Yes.
HEYDON J: And it ended a bit before 5.00?
MR WALKER: Yes.
HEYDON J: You say you cannot infer ‑ ‑ ‑
MR WALKER: No.
HEYDON J: I see. All right. We will have to look at the evidence.
MR WALKER: It was not inferred at trial, it was not inferred in the Court of Appeal that she knew that he must have been too drunk to drive.
HEYDON J: But a reasonable person in her position?
MR WALKER: The way in which the matter was fought at trial, your Honour, is summed up by the findings to which we have referred in paragraph 12 of our written submissions and, in our submission, they apply as well to what has been put to me by Justice Heydon as what a reasonable person in the plaintiff’s position might have inferred as well. It is not a question of the foggy perceptions of one person of the foggy perceptions of another person. It is what the evidence revealed about the actual state of the driver’s, the respondent’s, intoxication. This is not a case of a joint criminal enterprise having an aspect of it, people knowing that each is drunk as they become in charge of a motor car, just as it was not a case of each intending to go on the so-called joyrides involving the speeding, the erratic behaviour, etcetera.
The particular finding at trial, the last of those references, is on page 43 of the appeal book, paragraph 79, about line 38. In any event, this case was not run on the basis, no doubt because of the difficulty of proving complicity, was not run on the basis of an illegality or criminality involved in the drunken driving. That is highly significant. That was one of the offences with which he was charged. I regret to say I cannot say whether it is one that he pleaded guilty to because the evidence is, for some reason, obscure on the point, but he was certainly charged with it.
He was sentenced to five years for the combination of matters to which he pleaded guilty. As your Honours know, a person was killed as well as injured in this case. It is for those reasons, in our submission, that, trying to answer Justice Hayne’s question, when looking to the statute, care has to be taken to appreciate that the one the defendant nominates, because of the facility with which complicity is shown, is not necessarily the one that ought to govern an understanding of this doctrine’s possible application, namely, illegality or criminality as an answer to a plaintiff’s claim.
Those things which are not necessary to the commission of the offence but which Parliament has seen specifically to provide by way of either extra punishment, 378(2), or specific offences of the various dangerous driving possibilities, or drunken driving, speeding, etcetera, all of those, in our submission, ought to be taken into account to appreciate that if you cannot say the plaintiff is complicit in those things and you do know that the accident was caused by the conduct which would be punishable by those provisions, then, plainly enough, it cannot be said that her claim arises out of or that her injury or loss is caused by that which is her illegality. Her illegality was not complicit in the dangerousness, therefore, it is of absolutely no moment to her and she is in exactly the same position as the innocent pedestrian against whom, of course, as a plaintiff, a criminal defendant would never dare say, “You cannot sue me. I was in the course of committing a crime.”
CRENNAN J: Would you make the distinction that a standard of care can be identified in the circumstances where there is no complicity in dangerous or reckless driving, whereas in the latter it could not be seriously formulated?
MR WALKER: Yes, and, with great respect, let me come immediately to that point. There is a tension in the reasons in the four cases between, if you will forgive me for putting it thus, what appears linguistically to be on the one hand a perceived incapacity to fix a standard and on the other hand a distaste for doing so. Now, they are my words. It is, for example, the use of the language of it being impossible or it cannot be done or it cannot with propriety be done or it is inappropriate for the court to do it.
Now, in our submission, it is not difficult at all and it is the daily task of common law courts to look at detailed facts in order to ascertain what a reasonable standard of care requires in what I will call emergency or fraught situations. What becomes impossible but in the sense of it being unthinkable a court should do it, is that in certain circumstances the relationship between the plaintiff and the defendant by dint of their complicity in a crime, is such as to defeat – and this is my expression, not the authorities’ expression – the sensible use of the word “reasonable” to describe the standard you are fixing.
How can one talk about what is reasonable to be done in order, in darkness, in haste and without making any noise, to set up for an explosion as a safe breaker? On the other hand, it is not a factual difficulty because if they were deep sea divers, equally in haste for want of air, in cramped conditions and in horrible dark, et cetera, of course, if necessary, there would be an inquiry nuanced as to the specific facts of the case as to what is reasonable, and the fact that everyone in the courtroom is struck by the extraordinary work conditions would not prevent there nonetheless being a sensible use of the word “reasonable” in those circumstances.
Now, once one has moved away from the idea in Cook v Cook that you can, as it were, raise and lower standards of care arising from relationships such as driver and passenger according to the circumstances that Cook v Cook involved, and once one has gone to the law as now seen in Imbree v McNeilly, there is, in our submission, all the more reason in a case like this not to invent spurious difficulties about imposing a standard of care, and it is surely an invention that says the illegal use criminalised by 371A either cannot or should not be the subject of a common law inquiry as to whether driving too fast or losing control, et cetera, does or does not fall short of a reasonable standard of care in that use. The answer is, of course, it does.
The answer is as simple to supply in an action brought by the passenger in the car complicit in the taking and using as it is in answer to the claim by the pedestrian hit as the car comes off onto the footpath. That is as to what I will call difficulty. Is it an invidious inquiry, to use one of the expressions in the authorities? In our submission, no, it is not, once you see in a case like this that the plaintiff is not in any way the author of her own misfortune in relation to the conduct which has harmed her. She has not asked for the car to be driven too fast, to the contrary, she has asked for it to be driven more slowly. She has indeed, before the collision, not even asked to remain in the car so as to continue her use. She has asked, obviously in vain, to be let out.
Now, it is for those reasons, in our submission, that the notion which ought to be seen, I would have to concede, as probably the main part of the ratio of the four authorities seen as a whole, that is, no duty because of the invidious inquiry in relation to a standard, that, in our submission, simply does not apply in this case and perhaps really ought to be reconsidered given the changing of the view about proximity, the changing of the up and down standard à la Cook v Cook, each of which played explicitly an important role in the reasoning of this Court in Gala v Preston. At the pivotal passage, they play a part in the reasoning, a big part.
So this Court, in our submission, would be entitled to say, well, if it can be seen that the matters in which the plaintiff is reprehensibly complicit are not matters which brought about her injury, then that is an end to the possibility of her punitive criminality or illegality providing any disqualification of her to obtain compensation.
HAYNE J: The expression “reprehensibly complicit” directs attention again to page 87 of the appeal book, paragraph 79, and that statement by Justice Buss about foreseeable risks.
MR WALKER: Yes.
HAYNE J: It is language of a kind reminiscent of language used in McAuliffe and in Gillard v The Queen about common enterprise, I think. See, for example, Gillard v The Queen 219 CLR 1 at 36, paragraph 112.
MR WALKER: Yes, inappropriate, in our submission.
HAYNE J: Sorry?
MR WALKER: Inappropriately. This is not going abroad with somebody and you have not asked too many questions of but is carrying a baseball bat and is not dressed for baseball. It is not that kind of case at all where it might be very difficult in a criminal context to be heard to say, “Well, it never occurred to me that he might actually kill someone with it. I thought he would just touch them up”, and, of course, I am not making those facts up. These are cases that have been considered. Paragraph 79 does, with respect, have that perhaps as a substrate of expectation to produce the conclusions in 79, similar to those criminal cases, but, in our submission, the facts of this case simply belie it.
The fact that she was taking the car because she did not have enough money for a taxi, she wanted to go home, there is no dispute that she was not involved in a joyride, that, in our submission, together with her lack of complicity in relation to drunken driving and, we add, her wanting to get out, all combined, in our submission, to render 79 inappropriate to be attributed to her. Certainly, as I say, if you applied the test of what was necessary for voluntary assumption of risk in the full and proper sense of that doctrine, the evidence does not come within a bull’s roar of it. In our submission, that is a mark of how inappropriate these findings were for the purpose of the present argument.
HAYNE J: Is the extent of the criminal responsibility determined, amongst other things, according to notions of joint criminal enterprise, relevant to the inquiries that are to be undertaken in a case such as this? I understand you make the several factual points that you make and I understand the power of those several factual points, but my question is one of principle. Is the extent of criminal responsibility, which extends to things foreseen but not agreed, relevant in this area of inquiry?
MR WALKER: It would be difficult simply to say no.
HAYNE J: Because the next question is if yes, how and where are we heading and if we have left the sheet anchor of the statute?
MR WALKER: I am not suggesting you ever leave the sheet anchor of the statute. My argument is that the statute does not – she is not complicit in the argument against her in the dangerous driving. It is simply not the case that one can say that, either as a matter of law or in this case, bearing in mind the findings as a matter of inference, that she must be taken to have appreciated the risk she was undertaking. Now, there is a risk whenever one gets in any car that something will happen either leading to liability or not, accidents happen, but we are talking about a risk over and above the ordinary risk of getting into a car. There is nothing criminal about being in a car simpliciter. There was in this case criminality in being in it by way of use having taken, but that is simply the condition as opposed to a cause of her eventually being injured. A distinction from what might have been thought long stilled debates about causation, but which Lord Hoffman, in a passage to which I will come, makes reference in Gray v Thames in [2009] 1 AC 1339.
When Justice Hayne asks, where will it all end, one thing that is argued against us is that all this lands us in detailed, the suggestion implicitly is overly detailed, factual investigation. The short answer to that is, since when in a negligence case should there be, as to any of the issues concerning the actual people and their actual dealings, anything other than a concrete, detailed understanding of the facts, according, in cases where there is not agreement, to contested evidence? For the duty, as to its scope and content see, for example, the comments cited since by Justice Gummow in RTA v Dederer, (2007) 234 CLR 330 at 345, paragraph 43, one, with respect, of a very, very numerous class of comments concerning the primacy and the pervading importance from beginning to end of a negligence case of the actual detailed specific facts between plaintiff and defendant and the circumstances in which they found themselves.
It is certainly true of standard of care and breach. It is certainly true of causation. Why should it not also be true about this aspect of the doctrine we are arguing about here? We know it is true about the first aspect of the doctrine because if there is a contest about whether there was participation in a joint criminal enterprise, that has to be argued and found on the detailed facts specific to the doings between these people. It is also said in the same criticism, exemplified in paragraph 29 of the written submissions against us, that this would involve delving by word into states of mind. Of course it will. Much crime involves an understanding and findings about states of mind, often only by inference, and well and good, with respect.
How else would one make a finding in a civil court, any more than in a criminal court, that somebody has been guilty of an offence which involves a state of mind without looking at the specific, if necessary, detailed evidence from which that might be known? So this is no objection. It cannot be an objection that this makes labour for the court. It is not making labour for the court in any other way than is the ordinary lot of any judge or jury, where juries are engaged, in a negligence case.
CRENNAN J: Can I just ask you, because I do not quite understand it, what your answer is. Can I ask you to return to Justice Hayne’s question, which was whether or not in this area of discourse one would pay attention to the field of criminal law discourse and notions of joint responsibility, and whether what would be important would be risks which were foreseen but not necessarily agreed, because so far as I understand your argument to date, you have emphasised the lack of agreement in relation to dangerous or reckless driving.
MR WALKER: Yes, that is fair, with respect, your Honour.
CRENNAN J: What is your answer to Justice Hayne? Are you saying that that notion of risks which are foreseen but not agreed to does not apply in the context of considering joint criminal responsibility for the purposes of the illegality defence in tort?
MR WALKER: No, I do not think I can say that consistently with principle, your Honour, no.
GUMMOW J: We have to look at cases like McAuliffe then, do we not, in crime?
MR WALKER: Yes. What I have, I hope not glibly, but in one word called “complicity” has a number of ways of doing it.
GUMMOW J: Before you say that, perhaps we should look at Smith v Jenkins 119 CLR 397 at 422, where Justice Windeyer says about point 4:
If two or more persons participate in the commission of a crime, each takes the risk of the negligence of the other or others in the actual performance of the criminal act.
That is something narrower than McAuliffe, I think.
MR WALKER: Yes, it is.
GUMMOW J: Then he goes on to say that it may be:
the negation of duty . . . volenti . . . or simply on the refusal of the courts to aid wrongdoers.
MR WALKER: Then how would we analyse and explain ‑ ‑ ‑
GUMMOW J: So I do not need to analyse it any more, good day.
MR WALKER: It was the next sentence I was hoping I could rely upon:
How it be analysed and explained matters not.
I will try not to take too much from that. Your Honours, I cannot say none of that matters. However, this is still a question as to whether there is ‑ ‑ ‑
GUMMOW J: Wait a minute. The relevant criminal conduct is 371A, is it not?
MR WALKER: Yes.
FRENCH CJ: The pleading itself does not spell that out, but in Justice Buss’ judgment I think at paragraph 21 he tries it to that. I presume that is on the basis of how it was put by the parties.
MR WALKER: Yes. We have tried to draw together those references in our paragraph 19 of our written submissions in‑chief. I think I said this earlier. When I say “the pleading”, the pleading is very uninformative. It was given content by the manner of conduct of the trial and the argument. It is 371A only; nothing else.
GUMMOW J: It is not. I do not know how this works in the Code actually in Western Australia. It is not a criminal enterprise being a joint enterprise of the type charged in McAuliffe and somehow fitted in Queensland, I think, in Gillard.
MR WALKER: Or section 7 of the Queensland Code, for example. There is no ‑ ‑ ‑
HAYNE J: South Australia was Gillard.
GUMMOW J: South Australia, was it?
MR WALKER: There was no complicity argument in what I might call the cameo criminal case in these proceedings, and that for obvious reason because a number of people on that occasion were putatively committing the same offence in 371A.
FRENCH CJ: As principals.
MR WALKER: As principals. Even that is an expression one would like to avoid because of the way in which the Griffith Code deals with people as principals.
GUMMOW J: We had a case in Queensland on the Code.
MR WALKER: Yes, you have. Your Honours, it is impossible, as I say, convincingly to say that these are concepts expelled from the discourse. I can certainly say in this case the joint illegal enterprise, as it is called, in the pleading was argued to be all of them committing an offence against 371A.
FRENCH CJ: A concurrent illegal enterprise.
MR WALKER: Yes, and there could be no point taken about such a difference. So there was no aiding, abetting, procuring and, in particular, there was attention given to the question whether my client should be taken to have understood he was drunk or understand that he would drive dangerously, but factually ‑ ‑ ‑
FRENCH CJ: The intoxication was brought in as a matter of contributory negligence, I think, was it not, in the pleading?
MR WALKER: Yes, and the fact is that the factual outcomes there were all favourable to my client. Those, in my submission, really rendered inappropriate, given the way these parties have joined issued, any further exploration such as an unjoined issue about whether – although she did not intend it, nonetheless she might foresee that he would go all harum‑scarum instead of going soberly home. That, in our submission, is something upon which the defendant bears an onus, given their raising of this plea. They did not frame the case in that fashion and it ought to be left for another case as to whether the category of foreseen, but not agreed consequences of illegal conduct are within the ambit of those which, if they cause actionable loss, may not be sued on because of the illegality. This case does not raise that distinction. It was not factually explored and it ought to have been if it was to be raised at the instance of the defendant.
HEYDON J: Mr Walker, do you accept the correctness of Mr Justice Windeyer’s role that Justice Gummow drew attention to a few minutes ago?
MR WALKER: Not entirely, no, your Honour.
HEYDON J: What is the mistake in it?
MR WALKER: That it does not specifically ‑ ‑ ‑
GUMMOW J: Does not distinguish anything about the nature of the criminal act or the statute that creates it.
MR WALKER: That is right. It does not require attention to the specific elements or character required by the statute in order for there to be illegal conduct. Can I give an example factually as to ‑ ‑ ‑
HEYDON J: That is your submission, but is there an authority of this Court?
MR WALKER: I think it is difficult to say there is an authority, but I am going to try and show your Honours that ‑ ‑ ‑
HEYDON J: You are going to collect some statements which might not be technically an authority, but they are a body of thought.
MR WALKER: Yes, is the answer. It is not the way in which the Court proceeded to, if I may put it this way, deal with Smith v Jenkins. It has been the subject of – if I can put it this way – homogenising paraphrase. There has been an attempt to encapsulate it in a few words – two of them – and I will come to them. They do not adopt quite that rule, as Sir Victor formulated it. If I may be forgiven, may I come to that case law in due course. May I say in further answer to Justice Heydon’s question this. There is a factual way, surely, of raising doubt about ‑ ‑ ‑
GUMMOW J: Just before you leave Smith v Jenkins you probably have to look at the top of page 425 where the rule seems to be restated in the very first line at the top of 425:
the rule that a criminal cannot have the aid of the law in his complaint against his fellow. Either way, the answer must be found in the terms and the subject matter and the purpose of the statute.
MR WALKER: That is language that is very coherent with the approach of this Court later taken in the other areas to which Justice Gummow referred in opening.
GUMMOW J: Yes.
HAYNE J: But it finds its root also in Henwood, see Henwood at 460.
MR WALKER: Quite. I am not suggesting it is novel. I am bound to point out that passage that Justice Gummow has just drawn to my attention it does contrast – now this, I think, goes back to an early question of Justice Crennan – what are called safety laws and traffic regulations with the crimes of stealing or unlawfully taking or using a motor car in a way which is distinctly unhelpful to our case, however, not in a way for the reasons I wish to develop affects it in principle.
HAYNE J: Just to go back – I am sorry.
MR WALKER: Might I just go back and finish what Justice Heydon – in answer to Justice Heydon – I am so sorry, your Honour?
HAYNE J: Of course.
MR WALKER: The rule – each takes the risk of the negligence of the other or others in the actual performance of the criminal act. Put that together with the kind of law that his Honour had in mind which include the crime of unlawfully taking or using a motor car. You are using a motor car when you are sitting in it in a journey. The two thieves who stole by taking and using the motor car are proceeding in otherwise entirely lawful fashion in ordinary traffic. They are stopped at a red light. Someone else, nothing to do with their criminal conduct, and let it be supposed somebody who themselves owned their car they were driving but drove it negligently – just drove it negligently – and drives it into the two thieves, not only into the two thieves but by dint of the force of the collision into somebody next to them as well who happens to be a lawful owner also sitting quietly in their car at the red light.
It seems odd if a literal understanding, surely not to be gathered from the way Sir Victor otherwise deals with this matter, of that formulation of the rule would deprive those thieves of their damages for their injury, notwithstanding that the people in the car next door would, of course, collect. Indeed, one way in which it seems, with respect, it must be understood that Sir Victor does not intend it so to be applied is the reference he made earlier at page 416 to what became known scathingly as the “Massachusetts rule”, which at it height, or depth, involved the notion that those daring to use a highway on the Sabbath would get no compensation for any ill they suffered by reason of a person’s wrong committed against them.
HAYNE J: If we go back to Justice Windeyer and your example, the injuries which the two thieves suffered were not the result of any negligence of the other in the actual performance of the criminal act.
MR WALKER: No, quite.
HEYDON J: It was the negligence of the third party.
MR WALKER: I want to take it a step at a time, with respect. Now, if we involve in that collision the familiar queue that you see on motorways where a sequence of people travelling at what, in retrospect, is said to be excessive speed or failing to observe correct spacing, or keep a proper lookout, concertina into each other. There can be no question, with respect, that if the thief is in the middle of that concertina, the seven or eight cars, all but one of whom probably will be negligent, and maybe all of them – the last would also have contributory negligence, surely, in our submission, the notion of all those eight people, the thieves having no claim, though all the others do, where the quality of their actions, that is, they are keeping up with the traffic on a motorway, someone brakes too hard or for too long, and you have that horrible effect, in our submission, that is precisely the arbitrariness, or to use the language of the cases, the draconian aspect of the application of a rule literally understood, taken out of context surely, from that page 422 of Smith v Jenkins.
BELL J: But yet again, the negligence there is not of the thieves.
MR WALKER: No, it would be, because in one of those - your Honour presumably would never so drive, they are all ‑ ‑ ‑
BELL J: Because they are all too close ‑ ‑ ‑
MR WALKER: They are all negligent which is why those accidents occur; every single one is negligent, and if there is one that is not negligent because no one sues them then they are contributory negligent almost certainly. Now, our submission is, there is the arbitrariness, literally are they using the car travelling along the freeway? Yes. Are they using the car when they are travelling at a spacing which is inadequate to permit emergency stop without collision? Yes, of course that is a use of the car.
In our submission, however, it can be seen that all the eight people in that queue are committing offences against various tenets of the traffic code. They are also obviously all falling short of a common law duty of care which they all owe – the thieves unquestionably owe a duty to other users of the road; exactly the same standard, contra Cook v Cook, and for those reasons, in our submission, we have thrown up in such a case something which is surely indefensible. No one has ever suggested it is the role of tort law arbitrarily, like a bolt from the blue, to supposedly act as an adjunct to the criminal law in this fashion and ‑ ‑ ‑
HEYDON J: Is it arbitrary? If they had obeyed the criminal law, they would not have been there.
MR WALKER: But, your Honour, that is simply to say that once having taken and used a car, their presence every single different location thereafter brought about by use of the car is a condition for anything that might happen to them at those locations and so it is.
HEYDON J: You might quarrel with it as a causation test, but it is a sine qua non.
MR WALKER: Without any doubt, your Honour. That is no doubt why the old nomenclature, and it struggled, but the one that was longest established was to distinguish between things which are conditions and causes. The conditions are sine qua nons, without any doubt, hence the use of the word “condition”.
HEYDON J: It is not, in that sense, arbitrary.
MR WALKER: Your Honour, it is arbitrary in the sense that, for the purposes of causation in the law of negligence, those matters which were regarded as trivially true in the narrative, that is, they do not contribute to any reason why it is proper in law to impose responsibility on somebody who has brought about a consequence, it is a condition of somebody’s arrival at a pedestrian crossing at a particular time, but somebody else jostled them earlier so as to delay them. That does not provide any ground for responsibility, and it would be – sorry.
HEYDON J: You do not urge Mr Justice Murphy’s test on us, do you? Is that because whether it be authority or a collection of statements, there are too many of them against you.
MR WALKER: Yes.
HEYDON J: But this is a case where you are asking at least the law to be clarified, and perhaps the law to be changed. When one gets these big cases, should not all possibilities be out on the table?
MR WALKER: All viable ones, yes, your Honour.
HEYDON J: If there is some intellectual argument which makes something unviable, fine.
MR WALKER: Yes, of course, your Honour is correct.
HEYDON J: But four cases is not a large number.
MR WALKER: No. Of course, they are not just four ‑ ‑ ‑
HEYDON J: Twenty Justices is not a large number.
MR WALKER: It is formidable if you are seeking to overturn them, your Honour.
HEYDON J: Yes, but there are all little differences between them, and different approaches.
MR WALKER: Yes, there are. Would it be convenient ‑ ‑ ‑
HEYDON J: Justice Murphy’s judgment, at least, or a test has the virtue of, at least, so far as I currently understand it, of simplicity.
MR WALKER: It is simply stated, certainly ‑ ‑ ‑
HEYDON J: What it boils down to is that there is no defence of the legality. If there are qualifications on that then ‑ ‑ ‑
MR WALKER: That it is how it has been described and, with respect, not unfairly. His Honour puts it somewhat differently at the foot of page 465:
the defence of illegality should be confined strictly.
Sometimes that is a judicial utterance for extinguishing something.
This would be achieved in regard to statutory offences –
and that is what we are concerned with here, of course:
by strict application of the test referred to in Henwood’s Case -
which takes us back to, as it were, where we started.
FRENCH CJ: Perhaps a softer variant of that which can accommodate a variety of approaches is the question which I put to you earlier. Is the entitlement asserted incompatible with the prohibition that has been contravened?
MR WALKER: Yes. That is right.
FRENCH CJ: There may be a variety of aspects of the prohibition which give rise to incompatibility. If it is statutory it may the text, it may be the purpose. It may be the policy and so forth. But, ultimately, that is the territory we are in and even if one talks about things like invidious judgments one is really talking about incompatibility with a policy or purpose of the prohibition.
MR WALKER: But surely, with respect, cut from the same cloth as the approach in Sullivan v Moody in relation to the imposition of a duty of care, that it must not cut across other duties which are already licensed.
FRENCH CJ: That is just a particular example of incompatibility.
MR WALKER: Yes. Your Honours, can I just continue in answer to Justice Heydon concerning Mr Justice Murphy? At the top of page 466 the matter then, with respect, becomes somewhat less simple. So still where the offence is statutory he says:
This means (where the plaintiff’s offence is statutory) that recovery will be denied (by reason of illegality) only where denial is statutory policy –
and that comes from a Henwood interpretation –
(not because the court for reasons of policy declines to adopt a standard or recognize a duty).
That is a head‑on disagreement with the reigning orthodoxy at the time. Then his Honour goes on:
Otherwise, recovery should be denied only where there is a voluntary assumption of the risk.
With respect here, as you will have seen from our written submissions, we do find ourselves urging this approach, without the word, of course, “only”. That is one ought immediately have regard to the doctrine behind voluntary assumption of risk when considering injury caused by the very thing which renders your conduct illegal.
His Honour then goes on to make a comment about its application in actions for breach of employer’s duty, which is not germane here and then leaves it open, not one could say in any simple terms, but in relatively vague and evocative terms, as to whether a duty of care at common law may be found not to exist or may be answered by – a breach may be answered by a voluntary assumption of risk, implicitly, his Honour is suggesting, arising from the circumstances which might otherwise have informed an illegality answer.
HEYDON J: I suspect the reason why people Justice Murphy denied the existence of the defence is because, for example, he speaks of “controlling statutory direction”. Statutory directions are to be found in words of statutes and statutes of that type are conceivable, but very rare.
MR WALKER: Yes. One of those passages, for example, is the middle of 464. As I say, we do not, by any means, submit that your Honours should take nothing from that reasoning, in particular, the analogy you will have seen in our written submissions with voluntary assumption of risk. If you can say that it has been caused by the very thing which you are complicit in doing – and here that would be the dangerous driving. We are not complicit in that – then one can say, how can you on the one hand, so to as to render yourself criminally liable, urge the car to be driven fast and on the other hand in a civil court be heard to say that it was too fast, “I wanted it fast enough to get away from the police, and certainly faster than that which was lawful, but I did not want it too unlawfully fast. I did not want it too unlawfully evasive of the police.” That is the kind of inquiry which, in the mythical getaway car, has the invidious qualities which has been referred to in the passages your Honours have all noted. There is nothing corresponding to that in this case at all, nothing of any ‑ ‑ ‑
HAYNE J: Just to return then to that question of complicity, in this context it would be necessary to have regard to what the Court said in Keenan (2008) 237 CLR 397 which concerned the Queensland Code and to have regard to section 8 of the Western Australian Code if the extent of criminal responsibility were to be thought relevant or significant.
MR WALKER: If I recall, it was Keenan where Mr Sofronoff wielded with effect the thing that had been called a baseball bat but had never been designed to hit a ball. It was not a baseball bat. Yes, and I have tried to say that a priori or in principle it does not seem plausible to expel such considerations from this discourse. However, this case simply does not raise it at all, given the way the defendant ran it.
Your Honours, there is then the task of seeing whether there is in this attempt to have the Court clarify the position, whether there is to be seen in the various reasons in the four cases a requirement of the causal link which, as you have seen from our written submission, we propose as the only secure way, the only stable way, of moving away from what might be called an old‑fashioned judicial abhorrence for the conduct as being the touchstone which suffers, commentators say, from a vice of permitting excessive subjectivity and trying to avoid a mechanistic approach of asking, as it were, what has to be pleaded. Can you get your damages without once mentioning your illegality, an argument that, as has been said, may simply encourage it being omitted from statements of claim.
If we were to take them in date order, the danger, of course, is that one is looking first to the case which has been very heavily interpreted since, but, nonetheless, with respect, Smith v Jenkins contains some very anxious considerations by former Justices of the Court to these questions, and may I, as quickly as I may, take you to passages which your Honours may find helpful in relation to this – the lineage, we suggest, can be seen, not the dominant line, a cadet branch only in the authorities to date, for a causality requirement.
If one strips away post Perre v Apand and post Imbree v McNeilly, if one strips away some of the other justifications, perhaps this is left as the pith to be applied. So in 119 CLR could I start with the Chief Justice at page 400. Chief Justice Barwick consistently pronounced a view in this area, unhelpful to us, I will try to use that to our advantage later, but in this first case, could I simply draw to attention at about point 7:
Their relationship was that of joint participants in the very act, itself unlawful in the ‑ ‑ ‑
GUMMOW J: If I can just interrupt you. The problem with Sir Garfield, not for the first time, at page 400, the penultimate paragraph, is this continued quest for one single characterisation of a complex situation presented. He says:
Here the respondent and the appellant, in my opinion, did not relevantly stand in the relationship of passenger and driver.
Why not? The answer is, because they were joint participants, etcetera.
MR WALKER: Yes.
GUMMOW J: One does not necessarily lead to the other. You can have more than one characterisation of a particular circumstance. The question is why, and we struggle for years to get out of the constitutional law problems that that attitude of mind generated.
MR WALKER: Your Honour, with respect, I adopt all of that. I was pointing out his Honour uses the expression:
unlawful in the sense I have mentioned, out of which the mischief to the respondent arose.
Now, there is the requirement of causation. You go back to the previous sentence and you see that surely it is the relation of passenger and driver. In any event, the argument has been noted by Justice Gummow. I do not need to labour the point, but there is in terms of an approach a looking for what is it that caused the mischief of which the plaintiff wants to complain.
KIEFEL J: Does that mean that the relationship between the parties will be wholly irrelevant in every case in relation to a duty of care?
MR WALKER: No, no. We say it is always relevant. Relationships would rarely lend themselves to be characterised with one label, even of the available legal labels. The husband and wife are a married couple, but they are also often passengers and drivers vis-à-vis each other, for example.
KIEFEL J: Yes. I suppose I am thinking of it more of it in the context of trying to find the answer in relation to what duty may or may not arise having regard to statutory terms. For instance, the position of the thief who steals from a shop and the offence is complete by the time the thief falls over an object which would otherwise render the shopkeeper liable in negligence to the thief. What happens there? The statute does not suggest that there is a problem. I know it is not a joint exercise but we are trying to talk about a principle which will apply across both single and joint enterprises.
MR WALKER: Having it been common ground and clearly stated in this country’s and other countries’ jurisprudence, there is no caput lupinum, there is no outlawing because that would be very simple and very clear.
KIEFEL J: So does the thief recover?
MR WALKER: In the example your Honour puts, yes, he would, assuming ‑ ‑ ‑
KIEFEL J: Slightly unattractive.
MR WALKER: It is all very unattractive, your Honours, but ‑ ‑ ‑
KIEFEL J: But there the relation ‑ ‑ ‑
MR WALKER: Many a negligence case that does not involve ‑ ‑ ‑
KIEFEL J: But there the reference to a relationship might be helpful because you would say naturally the relationship between the shop owner and the thief should not give rise to a duty of care recognised by the law.
MR WALKER: It is not to be forgotten this case decided Hackshaw v Shaw as it did and there is nothing attractive about those facts at all; they were massively delinquent, in horribly delinquent conduct, but trespassers and worse are not without remedy civilly. That is the short point. The example Justice Kiefel has raised is reminiscent of course of Lord Asquith’s famous example in Coal Board v England that you can say that practically every set of reasons or academic article on this area refers to.
There are two examples. There are the burglars and then there are white‑collar criminals, the swindlers, and there is the colourful image of a swindler with a pocket watch having it lifted by his compatriot on their way to the swindle. But that was not part of the swindle. His Lordship entertained no doubt, in the course of a speech which, agreeing with others, was saying there is no outlawry, there is no general prohibition. He said, well, the swindler could sue in conversion.
The burglar was apparently a bit different, although it is not clear whether his Honour was, as it were, positing for burglars what we have in workers compensation legislation, the journey home, the journey to work, notion or extension. It sufficies to say that of course it will turn upon relationship. It will depend upon particular factual circumstances, as well it should in all negligence cases, but, in our submission, never will the relationship be irrelevant. Now, in this case it is easy to suppose, alter the facts very slightly, that one of the passengers was picked up later than all the others and was told, in answer to the question, “Gee, nice car, who’s is it?” was told, “I’ve been lent it by”, et cetera. Not complicit in anything.
KIEFEL J: I think you might need to have been there to have understood what that meant at the time.
MR WALKER: That is one of the reasons why of course it is fact rich and it is always to do with the actual relationship, as all negligence cases are, as contributory negligence in the same case would be. For those reasons, in our submission, you would be faced in such a case with a startling disparity of outcome whereby people, all of whom share the characteristic they were not complicit in or responsible for dangerous driving, nonetheless, some where complicit in their use, one was not, they are all injured, all by the same conduct which, as to its essential causative quality, was not their responsibility at all, but some recover and some do not. In our submission, that is the mark of arbitrariness, of a draconian outcome and far from our argument condoning the breach of the criminal law, in our submission, such an outcome itself trespasses on the province of the criminal law by adding an extraordinary detriment to a case where there has already been a stipulation for the extent and limit of the penalty that we visited for the criminal conduct. I am sorry, I note the time, your Honours.
FRENCH CJ: That might be a convenient moment. The Court will adjourn until 10 o’clock tomorrow morning for pronouncement of orders and 10.15 for the resumption of this matter.
AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 4 NOVEMBER 2010
Key Legal Topics
Areas of Law
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Civil Procedure
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Negligence & Tort
Legal Concepts
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Appeal
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Causation
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Damages
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Duty of Care
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Negligence
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Remedies
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