MILLER v MILLER

[2008] WADC 46

MILLER -v- MILLER [2008] WADC 46

Link to Appeal :

[2009] WASCA 199

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WADC 46
Case No:	CIV:1370/2005	Heard:	18 DECEMBER 2007
Coram:	SCHOOMBEE DCJ	Delivered:	3/04/08
Location:	PERTH
No of pages:	37	Judgment Part:	1 of 1
Result:	Duty of care established in favour of the plaintiff
PDF Version

Parties:	DANELLE EVELYN MILLER MAURIN ASHTON MILLER
Catchwords:	Tort Duty of care Joint illegal enterprise Stolen motor vehicle Defendant intoxicated Defendant driving plaintiff home Nine passengers in motor vehicle Whether defendant owed passenger a duty of care Onus on defendant to prove absence of duty of care Salient features to be taken into account in considering duty of care Whether standard of duty of care could be established in the circumstances Contributory negligence admitted by plaintiff
Legislation:	Nil
Case References:	Avram v Gusakoski [2006] WASC 16 Cook v Cook (1986) 162 CLR 376 Fabre v Arenales (1992) 15 MVR 303 Gala v Preston (1991) 172 CLR 243 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Harriton v Stephens (2006) 226 CLR 52 Jackson v Harrison (1978) 138 CLR 438 Jeffries v Fisher [1985] WAR 250 Joslyn v Berryman (2003) 214 CLR 552 Kickett v State Government Insurance Commission (1997) 26 MVR 321 Perre v Apand Pty Ltd (1999) 198 CLR 180 Progress and Properties Ltd v Craft (1976) 135 CLR 651 Smith v Jenkins (1970) 119 CLR 397 Sullivan v Moody (2001) 207 CLR 562 Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 Waller v James; Waller v Hoolahan (2006) 226 CLR 136 Winter v Commonwealth of Australia (1992) 112 ACTR 10

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : MILLER -v- MILLER [2008] WADC 46 CORAM : SCHOOMBEE DCJ HEARD : 18 DECEMBER 2007 DELIVERED : 3 APRIL 2008 FILE NO/S : CIV 1370 of 2005 BETWEEN : DANELLE EVELYN MILLER

Plaintiff

AND

MAURIN ASHTON MILLER
Defendant

Catchwords:

Tort - Duty of care - Joint illegal enterprise - Stolen motor vehicle - Defendant intoxicated - Defendant driving plaintiff home - Nine passengers in motor vehicle - Whether defendant owed passenger a duty of care - Onus on defendant to prove absence of duty of care - Salient features to be taken into account in considering duty of care - Whether standard of duty of care could be established in the circumstances - Contributory negligence admitted by plaintiff

Legislation:

Nil

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Result:

Duty of care established in favour of the plaintiff

Representation:

Counsel:

Plaintiff : Mr J G Staude
Defendant : Mr G P Bourhill

Solicitors:

Plaintiff : Kott Gunning
Defendant : Lavan Legal

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

Avram v Gusakoski [2006] WASC 16
Cook v Cook (1986) 162 CLR 376
Fabre v Arenales (1992) 15 MVR 303
Gala v Preston (1991) 172 CLR 243
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Harriton v Stephens (2006) 226 CLR 52
Jackson v Harrison (1978) 138 CLR 438
Jeffries v Fisher [1985] WAR 250
Joslyn v Berryman (2003) 214 CLR 552
Kickett v State Government Insurance Commission (1997) 26 MVR 321
Perre v Apand Pty Ltd (1999) 198 CLR 180
Progress and Properties Ltd v Craft (1976) 135 CLR 651
Smith v Jenkins (1970) 119 CLR 397
Sullivan v Moody (2001) 207 CLR 562
Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317
Waller v James; Waller v Hoolahan (2006) 226 CLR 136
Winter v Commonwealth of Australia (1992) 112 ACTR 10

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1 SCHOOMBEE DCJ: The plaintiff in this matter, who is now a 26-year-old woman, was seriously injured when she was a passenger in a car which left the road, mounted a curb and hit a pole. At the time of the accident the plaintiff was aged 16 and the defendant, the driver of the car, was aged 27. He was her mother's second cousin, whom she regarded as her uncle. The car they were travelling in was stolen and the defendant was intoxicated. In addition there were nine passengers in the car when the accident occurred.

2 According to the pleadings the plaintiff became a tetraplegic as a result of the accident. The court was asked to only decide one aspect of the plaintiff's claim, that is, whether the defendant owed the plaintiff a duty of care by reason of the fact that the plaintiff and the defendant were involved in a joint illegal enterprise at the time of the accident. The defendant has waived reliance on the other pleaded defences, including voluntary assumption of risk and no breach of any duty of care. The plaintiff on the other hand, has agreed that if a duty of care is found to exist, she would be liable for contributory negligence to the extent of 50 per cent.

The facts

3 The plaintiff gave evidence that on Saturday, 16 May 1998 at about 6 pm she and her older sister, Narelle, went to the house where the defendant was staying and started drinking alcohol with the defendant and other family members including the plaintiff's older cousin, Cindy. After about an hour they decided to take the train into Northbridge in Perth and arrived there at about 8 pm. The plaintiff, Narelle, Cindy and the defendant wandered around, drank alcohol and eventually went to a nightclub in Murray Street. As the plaintiff was only 16 and not allowed into the nightclub she walked to the train station to catch a train home. On arrival at the station she realised that the last train had already left. At the station she met up with her younger cousin, Hayley, and asked her to walk back with her to the nightclub where the rest of her party was still amusing themselves. On the way back to the nightclub the plaintiff bought some chips at a kebab shop and went to the toilet. When she and Hayley arrived at the nightclub they sat around in the car park waiting for the rest of the party to emerge.

4 When the defendant and his friends came out of the nightclub they witnessed an argument taking place between a man named Shanelle and his girlfriend. The defendant became involved in a verbal altercation with Shanelle, even though he had not met Shanelle before. However, the

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altercation was soon resolved and the defendant, Cindy and three other friends decided to take a taxi home. The plaintiff said that there was no space for her, Narelle and Hayley in the taxi and she had only $5 which was not enough to pay for a taxi home. She therefore decided to look for some money in the cars parked in the car park outside the nightclub. She could not find any money and decided to try and start a car by way of its dipstick. She had been shown by another cousin how to do this, although she said she had not done it before.

5 The plaintiff managed to start a car and asked Narelle to drive her and Hayley home. Narelle did not have a driver's licence. The plaintiff denied that Narelle was drunk, but admitted that she had been drinking. The plaintiff said in evidence that stealing the car was a stupid thing to do. She stated that she had not been charged with the offence of stealing.

6 As the plaintiff, Narelle and Hayley were about to leave the car park the defendant, who was waiting at the taxi stand, walked over to the car and told Narelle, "I'm your uncle let me drive". Narelle moved over to the passenger side and the plaintiff climbed between the two front seats into the back of the car, where Hayley was seated. The defendant's friends who had been waiting with him also piled into the car making so that there were nine passengers. As they were about to exit the car park and enter the road Shanelle, who was still arguing with his girlfriend, jumped into the passenger seat, causing Narelle to have to move to a position in the middle, between the defendant and Shanelle. The plaintiff was by then sitting at the back on her cousin's lap.

7 The plaintiff gave evidence that she expected the defendant to drive her home safely and to look after her. She said that she had known the defendant for as long as she could remember and that she regarded him as her uncle. She had a good relationship with him, respected him and looked up to him, as he was older. She had seen him from time to time and he had taught her some "Ninja" tricks as a child (flipping onto your feet from a horizontal position on your back). She had no reason to be concerned about any of his behaviour in the past. She had not previously driven with the defendant in a car and did not know whether he had a driver's licence or not. In cross-examination she admitted that she assumed that he did not have a driver's licence. She knew that he had been drinking but did not know how much, as she had parted company with him for a couple of hours when she went to the train station.

8 There was no evidence before the court to the effect that the defendant or any of his passengers intended to go on a joy-ride through

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the streets of Perth. The plaintiff had stolen the car so that her sister could drive her home and the defendant headed towards Kelmscott, where he lived, via Maddington where the plaintiff and Narelle lived with their parents and seven other siblings. The defendant initially drove sensibly through the city and over the Causeway leading out of the city. However, he then started speeding and drove through a couple of red lights. At that stage the plaintiff asked the defendant to slow down and on a later occasion she asked him to stop and let her and her sister out. However, the defendant told the plaintiff and her sister that they were "alright" and should come with him to Kelmscott. When they got to Kenwick, the suburb prior to Maddington, the defendant slowed down and the plaintiff again asked to be let out of the car. The defendant laughed off the plaintiff's concerns and revved the car. The plaintiff said that the defendant was "playing with our emotions" and a short time thereafter the car left the road and hit a pole.

9 I accept the plaintiff's evidence. Although the plaintiff at times hesitated for a long time before answering and looked down onto the desk in the witness box before her, I did not get the impression that she was doing this in order to formulate an answer which was in her best interest. My impression was that she did so in order to search her memory. The plaintiff appeared to give a truthful account to the best of her memory. She also gave evidence which was against her interest, for example the manner in which the defendant was driving which could have led a court to conclude that the parties were on a joy-ride. I have no reason to doubt her evidence.

10 The defendant gave evidence by video link. I do not accept his evidence insofar as it contradicts that of the plaintiff. Where his evidence contradicts that of the plaintiff, his evidence is in my view inherently improbable. He said that the plaintiff had never left his group and spent the whole night in his presence. However, this does not explain how a 16-year-old was allowed entry into a nightclub. Further, the defendant gave no explanation as to where and when Hayley joined his group, although he gave detailed evidence as to when he had met up with the other passengers. The defendant further said that he did not tell Narelle that he wanted to drive the car, but felt obliged to get into the car after Shanelle had suddenly stopped arguing with his girlfriend and had jumped into the front seat of the car. He felt obliged to look after his nieces who were about to drive home with an unknown man in the car. In my view, it is highly unlikely that a man who was not part of the defendant's or the plaintiff's group would have jumped into the car uninvited, particularly as the passenger seat was occupied by the plaintiff at that stage. It is much

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more likely that the defendant invited Shanelle to join him and the others in the car when he saw that he and his girlfriend were still arguing. The argument must have been heated as the plaintiff said that Shanelle's girlfriend threw a bottle of perfume at the car as they were leaving.

11 The defendant denied that he had been speeding or driving through red lights. He said that the accident happened when the car suddenly "fish tailed", hit the curb and he tried to straighten it up. However, the defendant admitted in evidence that he was charged with dangerous driving causing death (one of the other passengers died in the accident), dangerous driving causing grievous bodily harm and driving under the influence of alcohol. The defendant said that he had pleaded guilty and received a sentence of 5 years' imprisonment. It was not clear from his evidence whether he had pleaded guilty to and been convicted of all three charges. However, in light of the sentence received, he must have been convicted of at least one charge relating to dangerous driving.

12 It was also not clear from the evidence whether the defendant had pleaded guilty to and been convicted of driving a motor vehicle under the influence of alcohol or exactly what his state of intoxication was. The defendant said in evidence that they drank "a fair bit" and that they were all drinking "quite heavily". He said that his group had initially clubbed together to buy two bottles of whisky and a couple of bottles of beer. At about 10 pm they bought another half a carton of beer. However, it appears from the evidence that the defendant met up with a number of friends in the course of the night and that there were at least eight people sharing the alcohol over a period from about 8 pm to 4.30 am the next morning. The accident occurred around 5 am on the next morning. It is therefore not clear on the evidence to what extent the defendant was intoxicated.

13 The defendant admitted to having driven the motor vehicle without a licence.

14 The defendant said in evidence that he was responsible for the plaintiff's care. It was an unwritten family code that he, as her "uncle" and the oldest member of the group, was responsible to make sure that no harm befell the plaintiff. The defendant denied that he intended to call a taxi which would not have provided space for the plaintiff, Narelle and Hayley. He said that Cindy had called a bus taxi and that this would have had enough space for nine passengers. However, as indicated earlier, where the defendant's evidence contradicts that of the plaintiff, I prefer the plaintiff's evidence.

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The law on joint illegal enterprises

15 The question whether a plaintiff who is injured by a defendant's negligent act which occurs in the course of a joint illegal enterprise undertaken by both the plaintiff and the defendant has a right to compensation from the defendant was first examined by the High Court in Smith v Jenkins (1970) 119 CLR 397. In Smith v Jenkins (supra) the plaintiff, the defendant and two other youths, all aged about 16, spent an evening at a hotel drinking beer. Later that evening they robbed a man of money and his car keys and drove off with his car. It does not appear from the report where the perpetrators were heading, but, each of them, bar one, had taken a turn at driving when, with the defendant at the helm, the car ran off the road and hit a tree.

16 Barwick CJ, Windeyer, Owen and Kitto JJ each came to the conclusion, in separate judgments, that the plaintiff was not entitled in the circumstances to recover damages from the defendant. It has repeatedly been pointed out that by reason of the diversity of the reasoning expressed in the separate judgments in Smith v Jenkins, it is difficult to discern a particular legal principle on the basis of which recovery was denied to the plaintiff. For example, Mason J in Jackson v Harrison (1978) 138 CLR 438 at 454 said that the members of the High Court assigned a variety of reasons for arriving at the result that the plaintiff was not entitled to damages, "no particular reason commanding universal or even majority acceptance".

17 In Progress andProperties Ltd v Craft (1976) 135 CLR 651 at 668 Jacobs J (with whom Stephen J and Mason J concurred) came to the conclusion that the effect of Smith v Jenkins was the following:

"A duty of care arises out of the relationship of particular persons one to another. An illegal activity adds a factor to the relationship which may either extinguish or modify the duty of care otherwise owed. A joint illegal activity may absolve the one party from the duty towards the other to perform the activity with care for the safety of that other."

18 In Jackson v Harrison (supra) at 453 Mason J, who wrote one of the majority judgments, came to the conclusion that Smith v Jenkins had not decided that as a general rule participants in a joint illegal enterprise owed no duty of care to each other. His Honour pointed out that Smith v Jenkins was limited to its particular facts. I do not propose to repeat His Honour's summary of the various approaches adopted by each of the
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judges in Smith v Jenkins by reason ofthe findings made by the majority in Gala v Preston (1991) 172 CLR 243 which I turn to next.

19 In Gala v Preston (supra) four youths went to a hotel at about noon where they played pool and consumed alcohol. The plaintiff consumed approximately 40 Scotches during the course of the afternoon and evening and whereas his companions, including the defendant, drank beer rather than whiskey, they were said to have consumed an equivalent amount of alcohol to that consumed by the plaintiff. The trial judge found that the probabilities were that at the time of the accident the plaintiff and the defendant had a blood alcohol concentration in excess of 0.2 per cent. At some stage during the evening the group decided to steal a motor vehicle and "go up north" to visit some friends and the defendant and one of the youths planned to commit some breaking and entering offences. The plaintiff gave evidence that he assumed that the journey north was to be something of a "joy ride". The plaintiff initially drove the vehicle whereupon the defendant took over the driving. Just before midnight the vehicle left the highway and struck a tree.

20 The majority, per Mason CJ, Deane, Gaudron and McHugh JJ, in discussing illegality as a defence to an action in negligence referred to Smith v Jenkins. Their Honours came to the conclusion at 249 – 250 that although the ratio in Smith v Jenkins was not altogether clear, it was best to treat it as deciding that, in the circumstance of that case, no relevant duty of care arose on the part of the defendant to the plaintiff by reason of their participation in a joint illegal enterprise. They pointed out that it would be wrong to regard Smith v Jenkins as authority for the proposition that in all circumstances participation of a plaintiff and a defendant in a joint illegal enterprise would negate the existence of a duty care on the part of the defendant to the plaintiff. This was so even where the alleged breach of duty arose in the execution of the criminal act. Their Honours further stated there was no reason why the illegality of a particular enterprise or activity should automatically negate the existence of a duty of care which might otherwise arise from the relationship between the parties, especially if it was accepted that the decision in Smith v Jenkins did not rest on public policy (at 250).

21 I accept the interpretation of the majority in Gala v Preston of the various judgments in Smith v Jenkins and proceed on that basis.

22 The decisions in Progress and Properties Ltd v Craft (supra) and Jackson v Harrison (supra) were handed down after Smith v Jenkins but prior to Gala v Preston. They deal with facts which are quite

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distinguishable from the latter two cases. In Progress and Properties the plaintiff was injured when he rode on a goods hoist for the purpose of doing work on the 20^th floor of a building under construction. Both the plaintiff and the operator of the hoist acted in breach of the applicable regulations. The majority per Stephen, Mason, Jacobs and Murphy JJ, with Barwick CJ dissenting, held that the defence of illegality could not be sustained on the facts of the case. Jacobs J (with whom the other Justices in the majority agreed) held as follows at 668:

"A duty of care arises out of the relationship of particular persons one to another. An illegal activity adds a factor to the relationship which may either extinguish or modify the duty of care otherwise owed. A joint illegal activity may absolve the one party from the duty towards the other to perform the activity with care for the safety of that other. That, it seems to me, is the effect of Smith v Jenkins (31). Where there is a joint illegal activity the actual act of which the plaintiff in a civil action may be complaining as done without care may itself be a criminal act of a kind in respect of which a court is not prepared to hear evidence for the purpose of establishing the standard of care which was reasonable in the circumstances. A court will not hear evidence nor will it determine a standard of care owing by a safe blower to his accomplice in respect of the explosive device. This is an example which gives no difficulty, but other cases can give difficulty in classification."

23 His Honour found (at 668) that on the facts of that case the relationship of the illegal conduct to the negligent act did not require an examination of any special aspect of the relationship between the participants which could affect the standard of care. Whether or not it was legal to ride on the hoist, the same standard of care in operating the hoist was expected of the operator. The court was not obliged to embark on an enquiry whether the act of the operator was reasonable having regard to the illegality of the enterprise. Accordingly, the operator of the hoist still owed a duty of care to the plaintiff.

24 Similarly, in Jackson v Harrison, the High Court, by a 4:1 majority, did not regard the plaintiff's participation in an illegal enterprise as sufficient to modify the duty of care owed by a driver to his passenger. In that case the plaintiff, a passenger in the car, was injured as a result of the defendant's negligent driving. The plaintiff's and the defendant's driver licences had been suspended and each was aware of the other's disqualification.

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25 Mason J who gave one of the judgments which constituted the majority view in the case, came to the conclusion that the law had been correctly summarised by Jacobs J in Progress and Properties and stated his reasons for agreeing with Jacobs J as follows:

"If a joint participant in an illegal enterprise is to be denied relief against a co-participant for injury sustained in that enterprise, the denial of relief should be related not to the illegal character of the activity but rather to the character and incidents of the enterprise and to the hazards which are necessarily inherent in its execution. A more secure foundation for denying relief, though more limited in its application – and for that reason fairer in its operation – is to say that the plaintiff must fail when the character of the enterprise in which the parties are engaged is such that it is impossible for the court to determine the standard of care which is appropriate to be observed. The detonation of an explosive device is a case of this kind. But the driving of a motor vehicle by an unlicensed and disqualified driver, so long as it does not entail an agreement to drive the car recklessly on the highway (see Bondarenko v Sommers) stands in a somewhat different position." (Footnote omitted.)

26 His Honour added (at 456) that in the case under review (ie Jackson v Harrison) the participants in the illegal joint enterprise had contemplated that the vehicle would be driven carefully.

27 Jacobs J delivered a further judgment in Jackson v Harrison with which Aickin J agreed. His Honour referred to his statement in Progress and Properties, which I have cited earlier, and indicated that he adhered to that statement. His Honour added the following at 457:

"A legal of duty of care presupposes that a tribunal of fact can properly establish a standard of care in order to determine whether there has been a breach of the duty of care. If the courts decline to permit the establishment of an appropriate standard of care then it cannot be said that there is a duty of care.

Before the courts will say that the appropriate standard of care is not permitted to be established there must be such a relationship between the act of negligence and the nature of the illegal activity that a standard of care owed in the particular circumstances could only be determined by bringing into

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consideration the nature of the activity in which the parties were engaged."

28 His Honour then referred to the example of two safe blowers where one alleged that the other had not taken due care in detonating the explosive to open the safe. It would be difficult for a court to determine a standard of care. His Honour described this as an "invidious enquiry" and came to the conclusion that the reason for not allowing such an enquiry was based on public policy (at 458).

29 Further Jacobs J pointed out that in his view this approach was not inconsistent with the decision in Smith v Jenkins and that that case could be distinguished on its facts. The facts in Smith v Jenkins indicated that there was a joint criminal enterprise in respect of which a court could not determine a standard of care. This was because the ride in the stolen car in that case was "a jaunt, an escapade, a joy-ride even though of a most serious kind from the beginning to the end". His Honour noted that he doubted that the decision in Smith v Jenkins would have been the same if the accident had occurred days, weeks or months later when the circumstance of the taking of the vehicle had ceased to have any significant relationship to the manner in which the vehicle was being used (at 460).

30 Murphy J in Jackson v Harrison also came to the conclusion that the plaintiff should be entitled to recover damages, but did not agree with the approach by Mason and Jacobs JJ that a duty of care should not be held to exist where it was impossible for the court to determine the standard of care to be observed. Murphy J was of the view that cases where joint participation of a plaintiff and defendant in an illegal enterprise extinguished the duty of care because the court could not (as distinct to would not) determine an appropriate standard of care would be infrequent (at 462 – 463). In his view, there was no difficulty in determining the requisite standard of care in the circumstances of Smith v Jenkins. The standard of care was the same as that for every other driver. In his Honour's opinion a denial of a duty of care was simply an application of judicial policy (at 463). Murphy J came to the conclusion that policy considerations should not render the careless defendant immune from civil action because of illegality and that the defence of illegality should be confined strictly (at 464 – 465).

31 Murphy J also emphasised that the relevant illegality to be considered was the illegality of the plaintiff. The defendant's illegality was only relevant insofar as it formed the basis of the plaintiff's illegality

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in that the plaintiff participated in the defendant's illegal conduct. In this respect his Honour held as follows at 464:

"However, the implicit notion in many of the decided cases is that, as the illegality is joint, the plaintiff has agreed to take the risk of the defendant's tortious conduct, but this, of course, depends on the circumstances and should not be taken for granted."

32 This brings us back to Gala v Preston, the facts of which I have already referred to and which were similar to those in Smith v Jenkins. I have already discussed the ratio which the majority by Mason CJ, Deane, Gaudron and McHugh JJ, extracted from the various judgments in Smith v Jenkins. With regard to Progress and Properties and Jackson v Harrison, their Honours came to the conclusion at 252 that there were the following two strands to the majority reasoning:

"The first is that, in cases involving a joint illegal enterprise, it is necessary to examine the relation of the illegality to the negligence complained of with a view to ascertaining whether it is possible or feasible for the court to determine an appropriate standard of care. If it is impossible or not feasible to do so, no duty of care arises. The second is that, in cases of illegality arising from infringement of statutory provisions which are designed to promote safety, e.g. traffic laws and industrial safety regulations, there is no reason why illegality of that kind should negate the existence of a duty of care."

33 Having summarised the majority reasoning in Smith v Jenkins, Progress and Properties and Jackson v Harrison, their Honours then pointed out (at 252) that it was necessary to take account of developments effecting the concept of the duty of care since those cases had been decided and particularly the fact that the High Court had held, in a series of decisions, that a relevant duty of care would only arise under the common law of negligence in cases where the requirement of a relationship of proximity between the plaintiff and the defendant had been satisfied. Their Honours proceeded to discuss the requirement of proximity and made the following finding at 253:

In determining whether the requirement (of proximity) is satisfied in a particular category of case in a developing area of the law of negligence, the relevant factors will include policy considerations. Where, as in the present case, the parties are

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involved in a joint criminal activity, those factors will include the appropriateness and feasibility of seeking to define the content of a relevant duty of care."

34 Their Honours came to the conclusion that in the case at hand it was a matter of examining the relationship between the plaintiff and the defendant with a view to ascertaining whether there was a relationship of proximity such as to give rise to a duty of care on the part of the driver to the plaintiff as his passenger. Their Honours proceeded to analyse the circumstances of the case and came to the conclusion that it was difficult to see how those circumstances could sustain a relationship of proximity. In this regard their Honours held as follows at 254:

"The joint criminal activity involving the theft of the motor vehicle and its illegal use in the course of a spontaneously planned "joy ride" or adventure gave rise to the only relevant relationship between the parties and constituted the whole context of the accident. That criminal activity was, of its nature, fraught with serious risks. The consumption by the participants, including the first appellant, of massive amounts of alcohol for many hours prior to the accident would have affected adversely the capacity of a driver to handle the motor vehicle competently. Despite the surprising conclusion of the primary judge, each of the parties to the enterprise must be taken to have appreciated that he would be encountering serious risks in travelling in the stolen vehicle when it was being driven by persons who had been drinking heavily and when it could well be the subject of a report to the police leading possibly to their pursuit and/or their arrest. In the special and exceptional circumstances that prevailed, the participants could not have had any reasonable basis for expecting that a driver of the vehicle would drive it according to ordinary standards of competence and care.

In this situation the parties were not in a relationship of proximity to each other such that the first appellant, as the driver of the vehicle, had a relevant duty of care to the respondent, as a passenger in the vehicle. In the circumstances just outlined, it would not be possible or feasible for a court to determine what was an appropriate standard of care to be expected of the first appellant as the driver of the vehicle. To conclude that he should have observed the ordinary standard of care to be expected of a competent driver would be to disregard

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the actual relationship between the parties as we have described it. To seek to define a more limited duty of care by reference to the exigencies of the particular case would involve a weighing and adjusting of the conflicting demands of the joint criminal activity and the safety of the participants in which it would be neither appropriate nor feasible for the courts to engage. "

35 Although the Justices in the majority did not specifically identify a list of factors which should be taken into account in deciding whether a relationship of proximity and therefore a duty of care should be found between participants to an illegal joint enterprise, the following factors may be distilled from the above passage as relevant to that question:

(1) The nature of the relationship between the plaintiff and the defendant;

(2) Whether the joint criminal activity gave rise to the only relevant relationship between the parties;

(3) Whether the joint criminal activity constituted the whole context of the accident;

(4) Whether the criminal activity was, of its nature, fraught with serious risks;

(5) Whether the plaintiff appreciated that he or she would be encountering serious risks in participating in the criminal activity;

(6) Whether the plaintiff could not have had any reasonable basis for expecting that the driver of the vehicle would drive it according to ordinary standards of competence and care;

(7) The nature and incidents of the illegal enterprise (at 250);

(8) Whether in the circumstances it would not be possible or feasible for a court to determine the appropriate standard of care to be expected of the defendant as the driver of the vehicle.

36 Their Honours also referred to Cook v Cook (1986) 162 CLR 376 at 381 - 382 where the requirement of a relationship of proximity was discussed in the context of a plaintiff allowing the defendant, an inexperienced and unlicensed driver, to drive the car in which the plaintiff
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travelled as a passenger. The defendant lost control over the car and crashed into a concrete pole causing injury to the plaintiff. Mason, Wilson, Deane and Dawson JJ, in a joint judgment, held that where there was a relationship of proximity between driver and passenger, the standard of care was that reasonably to be expected of an experienced competent driver. However, special and exceptional circumstances, such as those in Cook v Cook could potentially transform the relationship between a driver and a particular passenger into a special or different class or category of relationship. The onus of establishing the existence of facts giving rise to such a relationship of a special or different category under which it would be unreasonable to fix the duty of care owed by a driver by reference to the ordinary standard of care lay on the party who asserted it.

37 On the basis of the decision in Cook v Cook their Honours in Gala v Preston came to the conclusion at 254 that the onus also lay on a defendant who asserted that by reason of special and exceptional facts, such as the participation in a joint illegal enterprise, the ordinary relationship of a driver towards a passenger was transformed into one which lacked the requisite relationship of proximity.

38 Brennan J in Gala v Preston came to the conclusion that the defendant did not owe a duty of care to the plaintiff, but rejected the finding by the majority that the existence of a duty of care depended upon a relationship of proximity. Brennan J rejected the notion of proximity as "too amorphous a concept" (at 260-261).

39 His Honour also questioned the approach adopted by Jacobs J in Progress and Properties and Jackson v Harrison pursuant to which no duty of care should be found to exist between participants to a joint illegal venture where it was impossible or not feasible for a court to determine the relevant standard of care. Brennan J relied on the statement by Walsh J in Smith v Jenkins at 431 - 432 that the reception of evidence of criminal conduct was no affront to the dignity of the court. Brennan J also referred to Cook v Cook where, although the question of illegality was not raised as an issue, the court saw no obstacle in the way of hearing evidence bearing on the driver's standard of care. His Honour was of the view that a standard of care could be determined whether it was that of a reasonable safe-blower, attenuated by the exigencies of the crime or, as in Cook v Cook, that of a reasonable inexperienced and unlicensed driver. In the opinion of Brennan J the proposition that a court would not or could not hear evidence to establish a duty of care or a standard of care in some cases, but would hear evidence in others, offered no criterion for

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determining in which cases a plaintiff would fail and in which cases he or she would succeed (at 269).

40 Brennan J also pointed out that in considering the relationship between the act of negligence and the nature of the illegal activity (a principle enunciated by Jacobs J in Jackson v Harrison at 459) the focus should be on the plaintiff's illegal activity. Brennan J said the following in this regard at [270]:

"The true question must be whether the conduct of the plaintiff as a party to the offence – whether by common purpose, aiding, abetting, encouraging, counselling or procuring – so affects the relationship that no duty of care is owed to him by the defendant. It must be the plaintiff's participation in the offence which might affect the defendant's liability. A defendant does not avoid liability to an innocent plaintiff by showing that the negligence occurred in the course of the defendant's commission of a crime."

41 Brennan J considered that none of the approaches thus far adopted by the High Court were highly satisfactory to answer the question as to why and when a plaintiff's participation in illegal conduct should affect the existence of a duty of care. In his Honour's view a court should only decline to find a duty of care where admission of such a duty would impair the normative inference of the law creating the offence in which the plaintiff participated. If a duty of care was found to exist in such cases the civil law could be said to condone a breach of the criminal law which would be contrary to public policy (at 271). This test called for a classification of the laws creating offences according to the effect which admission of the duty would have on their normative influence (at 273). The unlawful use of a motor vehicle contrary to s 408A of the Criminal Code (Qld) was a serious offence against the owner or person in lawful possession of the vehicle and against the public. As such, the normative influence of s 408A would be destroyed by admitting a duty of care (at 273).

42 Dawson J also questioned the principle applied in Progress and Properties Ltd v Craft and Jackson v Harrison that a duty of care was denied where the character of the illegal enterprise was such that a court could not properly establish the standard of care (at 275). Referring to the decision by Murphy J in Jackson v Harrison at 463 - 464, Dawson J came to the conclusion it was an unwillingness by the courts rather than an incapacity to set a standard of care in cases of joint illegal enterprise.

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His Honour pointed out that it was therefore necessary to seek what lay behind the law's reluctance to set a standard of care to be observed by participants in a joint criminal enterprise. The underlying reason was that the standard of the ordinary, reasonable person could not be applied to participants engaged in a criminal enterprise, as ordinary reasonable persons did not find themselves in the position of an accomplice in the commission of a criminal offence. Further, although the standard could be modified by reference to the criminal aspects of the venture, this would give validity to the criminal enterprise by using it as the foundation for erecting a standard of care and this was something which the law would not do (at 279).

43 His Honour pointed out that it was, of course, not every relationship involving participation in a criminal activity which required modification of the standard of care to be imposed upon the participants Progress and Properties Ltd v Craft and Jackson v Harrison were examples of this (at 279 - 280). Where the plaintiff's illegal conduct had no necessary bearing upon the standard of care required of the defendant, the appropriate standard of care did not involve any dependence upon the nature of the criminal activity and for that reason involved no condemnation of the breach of criminal law. In such a case the courts could recognise a duty of care. In the case of two persons jointly engaged in the illegal use of a motor car the criminal nature of the activity with its concomitant lack of responsibility for the safety of the vehicle involved and the evitable desire to avoid detection meant that the participants could not be placed, as regards each other, in the position of ordinary prudent users of the road. There was a special element in their relationship which, if the standard of care were to be set, would require modification by reference to the criminal nature of their activity (at 280).

44 Dawson J expressed the view that he did not derive any help from the notion of proximity, as it did not provide a proper principle on the basis of which a duty of care could be determined. It was necessary to identify the policy behind the court's refusal to allow a duty of care in certain instances of a joint criminal enterprise and to explain its application by reference to its limits. The policy was the refusal of the law to condone the commission of a criminal offence by granting a civil remedy (at 277).

45 Toohey J also questioned the notion that it was impossible to determine a standard of care in respect of parties engaged in an illegal enterprise. His Honour expressed the view that in some situations it might not be at all hard to determine an appropriate standard of care. His

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Honour cited the following two examples (at 288) of parties participating in the stealing of a car where on the facts one example allowed a standard of care to be determined whereas the other did not:

"It is of course possible to conceive of a scenario in which two persons agree to steal a car, in which the likelihood of pursuit is great as is the need to travel at high speed to evade pursuit. In those circumstances it would be nigh impossible to spell out a standard of care to meet the situation in which an accident occurred during the pursuit: see, by way of illustration, (Bondarenko v Sommers). On the other hand, two persons may agree to steal a car from a parking lot, in circumstances where its absence may not be noticed for some time, and then to drive a relatively short distance and abandon the car? If during that drive, the driver's attention wanders and an accident occurs, where is the difficulty in determining a standard of care?" (Footnote omitted)

46 Toohey J pointed out that the two factual examples indicated that the proposed principle that a duty of care was absent where it was impossible for the court to determine the standard of care did not meet all situations. Further, on one view a standard of care could be determined without much difficulty on the facts of Gala v Preston and yet the court was disinclined to allow a duty of care Accordingly, a claim for damages would not necessarily succeed even where it was possible to determine a standard of care (at 288-289). Toohey J held that the ratio in Smith v Jenkins was that the courts were unwilling to find a duty of care in circumstances of an illegal joint enterprise where, although there was a relationship between the parties which ordinarily would give rise to a duty of care, the injury to the plaintiff arose from a serious criminal act in which both the plaintiff and the defendant participated (at 291). The principle on the basis of which courts should deny a duty of care was therefore not the difficulty of defining a standard of care, but the participation by the parties in a serious criminal act, when that act had to be relied upon to found a course of action (at 292). Toohey J acknowledged that in particular cases questions would arise as to the seriousness of the conduct involved and the sufficiency of the connection between that conduct and the act or omission giving rise to a cause of action (at 292).

47 The question for this Court is where does all this leave the law to be applied to the present case? Counsel for the plaintiff submitted that this court was not bound by the majority decision in Gala v Preston, as this was based on the notion of proximity, which had since then been

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conclusively rejected by the High Court. It is correct that the High Court no longer sees proximity as the unifying criterion of a duty of care because it "is a category of indeterminate reference par excellence": Perre v Apand Pty Ltd (1999) 198 CLR 180 at [74] per McHugh J and at [330] per Hayne J. Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ in Sullivan v Moody (2001) 207 CLR 562 at [48] explained the reason for the High Court's rejection of the doctrine of proximity as follows:

"It expresses the nature of what is in issue, and in that respect gives focus to the enquiry, but as an explanation of a process of reasoning leading to a conclusion its utility is limited."

48 The fact that the notion of proximity has been rejected as the corner stone principle to determine a duty of care does not mean that I am not bound by the majority decision in Gala v Preston. In my view I am bound by the factors which their Honours considered to be applicable in determining how illegality of a joint enterprise affects the existence of a duty of care. I listed those factors in par 35 above and they still need to be applied when the question of the existence of a duty of care is considered in this case. What remains to be done is to identify what criterion has replaced the cornerstone of proximity as the starting point in determining the existence of a duty of care. Once that test has been identified it needs to be applied together with the factors which the majority in Gala v Preston have held to be applicable to the special factual category of a joint illegal enterprise.

49 This conclusion is in my view reinforced by the comments made by McHugh J in Joslyn v Berryman (2003) 214 CLR 552 . In that case the plaintiff, a passenger in a motor vehicle, was severely injured when the defendant lost control of the vehicle on a sharp corner and it overturned. Both the plaintiff and the defendant were intoxicated and the defendant had taken over of the driving of the car when she had noticed that the plaintiff had nodded off to sleep. The case turned on the assessment of contributory negligence. The defendant had not pleaded that the plaintiff had participated in an illegal activity namely the defendant's driving of the motor vehicle while intoxicated. The absence of a duty of care therefore did not arise.

50 However, McHugh J referred to Gala v Preston and Cook v Cook and came to the obiter conclusion that the issue of no breach of duty applied in cases where the passenger knew that the driver's ability was impaired by alcohol. In this context His Honour made the comment that after the rejection of the doctrine of proximity, it might be the case that

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the High Court would no longer follow the reasoning in Cook v Cook and Gala v Preston. His Honour said that the notion of the standard of care fluctuating with the sobriety of the driver was one that tribunals of fact would have great difficulty in applying. However, his Honour came to the conclusion (at [29] - [31]) that while Cook v Cook and Gala v Preston stood, they were authorities for the proposition that in special and exceptional circumstances, it would be unreasonable to fix the standard of care owed by a driver by reference to the ordinary standard of care owed by a driver to a passenger.

51 The question that still requires investigation is what principle or guideline has been put forward by the High Court for the determination of a duty of care since Perre v Apand (supra) and Sullivan v Moody (supra). What has emerged since the rejection of the notion of proximity is that the High Court has recognised that different classes of factual circumstances give rise to different problems and require different considerations in determining the existence and nature or scope of a duty of care. In Sullivan v Moody (supra) at [50] Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ summarised this conclusion as follows:

"The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle."

52 InPerre v ApandPty Ltd (at [333]) Hayne J held that the law regarding the determination of a duty of care should develop incrementally for as long as no unifying principle emerged. His Honour stated that it was crucial that there was explicit recognition of the factors that were considered important in deciding whether there was a duty of care in any particular class of cases, such as the class concerning economic loss. The identification of those factors was essential to any ordered development of the law in the area of a duty of care. McHugh J in Perre v ApandPty Ltd came to the same conclusion and formulated it as follows at [95]:

"Further, I think that so far as possible, the reasons for upholding or denying a duty in particular cases should be regarded as principles to be applied in determining whether a duty exists in cases within that category. Such reasons will reflect policies that the courts have recognised as relevant in determining the duty issue. In some cases, they will be so decisive in determining duty that they can be applied as rules or principles in other cases."

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53 Kirby J in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [236] summarised the approach by the High Court after the rejection of the notion of proximity as follows:

"The adoption of a notion that a range of other factors, something called 'salient factors', must be considered in order to determine the existence of a duty care in a particular case (Perre v Apand Pty Ltd (1999) 198 CLR 180 at 253 [198]).

… Some of them (the salient features) appear in the Court's decision Perre v Apand Pty Ltd. Many of them are helpfully collected by Callinan J in these appeals (vulnerability, power, control, generality or particularity of the class, the resources of, and demands upon the authority, 'the care or no-care' functions or relation to a matter of policy or executive action and so on"). (Footnote omitted.)

54 Perre v Apand Pty Ltd concerned a particular class of case, namely a plaintiff who had suffered economic loss, but was not in any direct commercial relationship with the defendant. In the context of considering a duty of care in respect of economic loss McHugh J summarised the relevant "salient features" as follows at [133]:

(1) was the loss reasonably foreseeable;

(2) would the imposition of a duty of care impose indeterminate liability on the defendant;

(3) would the imposition of a duty of care impose an unreasonable burden on the autonomy of the defendant;

(4) was the plaintiff vulnerable to loss from the conduct of the defendant;

(5) did the defendant know that its conduct could cause harm to the plaintiff.

55 Gaudron J emphasised an additional factor at [38], namely whether the defendant was in a position of control vis-à-vis the plaintiff. McHugh J recognised at [121] that the defendant's control of the plaintiff's right, interest or expectation would be an important test for vulnerability.

56 In Graham Barclay Oysters Pty Ltd v Ryan (supra) the class of case in issue concerned the duty of care of a statutory authority to prevent personal injury arising from its failure to exercise managerial control. Callinan J came to the conclusion at [321] that vulnerability, power, control, generality or particularity of the class, the resources of, and

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demands upon the authority, might each be, in a given case, a relevant circumstance, but none should of itself be considered decisive.

57 Counsel for the plaintiff submitted that this Court should apply the principles listed in Perre v Apand Pty Ltd in substitution of the notion of proximity. Although the factors listed by McHugh J in Perre v Apand Pty Ltd were formulated specifically with regard to a duty of care not to cause economic loss (see at [104] and [133]), they have also been applied in assessing the existence of a duty of care in other classes of cases. For example, in Tame v State of New South Wales; Annetts v AustralianStations Pty Ltd (2002) 211 CLR 317 the issue was whether a defendant owed a duty of care to protect the plaintiff from suffering psychiatric harm. In Tame v New South Wales (supra) such a duty was rejected on the basis of the factual circumstances, but in Annetts v AustralianStation Pty Ltd (supra) the High Court found that a station owner who had employed the 16-year-old son of the plaintiffs as a station hand owed a duty of care to the plaintiffs to protect them from suffering psychiatric harm. Hayne J listed the following factors at [239] – [240] as indicative of the existence of a duty of care:

"In the present case, the applicants [the plaintiffs] sought and obtained from the respondent [the defendant] assurances that James would be appropriately supervised. The respondent undertook specifically to act to minimise the risk of harm to James and, by inference, to minimise the risk of psychiatric injury to the applicants. In those circumstances, the recognition of a duty of care does not raise the prospect of an intolerably large or indeterminate class of potential plaintiffs.

The applicants had no way of protecting themselves against the risk of psychiatric harm that eventuated. …The control over the risk of harm to James, and the risk of consequent psychiatric harm to the applicants, was held to a significant, perhaps exclusive, degree by the respondent. It controlled the conditions under which James worked."

58 Although Hayne J did not refer to Perre v Apand Pty Ltd he clearly applied the factors listed in that case by McHugh J as also relevant to the question whether a duty of care to protect from psychiatric harm existed.

59 Another factor in assessing the existence of a duty of care that emerges strongly from the decision in Annetts is the nature of the relationship or special features of the relationship between the plaintiff

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and the defendant (see at [13] and [18] per Gleeson CJ; at [54 - 57] per Gaudron J; at [237] per Gummow and Kirby JJ, and at [356] and [366] per Callinan J).

60 The factors of vulnerability on the part of the plaintiff, control by the defendant and absence of indeterminate liability have also been applied by Kirby J in Harriton v Stephens (2006) 226 CLR 52 at [64] – [65] and Waller v James; Waller v Hoolahan (2006) 226 CLR 136 at [34] – [37] in determining the existence of a duty of care by a medical practitioner to an unborn child in so-called "wrongful life" cases. Although Kirby J was in the minority in finding that there was a duty of care in such a case, I have cited his Honour's judgments to indicate that the factors listed in Perre v Apand were given application in yet another class of cases. The majority in Harriton v Stephens at [243] and in Waller v James; Waller v Hoolahan at[81] came to the conclusion that the nature of the damages was not such as to be legally cognisable in the sense required to found a duty of care.

61 In light of the decisions by the High Court that have followed Gala v Preston it seems that I should apply the factors referred to by the majority in Gala v Preston, because they are the "salient features" relevant to the assessment of a duty of care in a case of an illegal joint enterprise. The only question remaining is whether I should also apply the factors listed in Perre v Apand Pty Ltd (supra), Graham Barclay Oysters Pty Ltd v Ryan (supra), Tame v State of New South Wales; Annetts v AustralianStations Pty Ltd (supra) Harriton v Stephens (supra) and Waller v James; Waller v Hoolahan (supra), or some of them, as the starting point of the inquiry into the existence of a duty of care. Each of these cases has dealt with a special class of cases different to the class of joint illegal enterprises. Some of the factors listed in those cases are clearly not relevant to the class of illegal joint enterprise, such as the imposition of indeterminate liability on the defendant or the resources of and demands upon a statutory authority.

62 The factors which have been identified as salient in each of these cases and are also relevant to the class of illegal joint enterprise are the nature of the relationship between the parties, the vulnerability of the plaintiff to the conduct of the defendant and the measure of control that the defendant had over any conduct which could affect the plaintiff. The nature of the relationship is a factor which is already on the list of salient features extracted from the decision in Gala v Preston. I am of the view that the other two factors are also relevant to the class of illegal joint enterprise and because they have emerged so strongly as factors to be

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considered in replacement of the notion of proximity, I am of the view that they should be added to the list of the salient factors to be taken into account in a case of illegal joint enterprise.

63 Before I apply the list of salient features to the facts of this case in order to determine the existence of a duty of care, I shall briefly refer to three cases cited by counsel for the plaintiff which were decided after Gala v Preston. In Fabre v Arenales (1992) 15 MVR 303 (NSWCA) the plaintiff was injured while escaping the police in a car driven by the defendant after the plaintiff and the defendant had been disturbed in the course of stealing goods from commercial premises. Mahoney JA (with whom Priestley and Sheller JJ agreed) stated that the case was to be determined by reference to the principles established in the majority judgment of the High Court in Gala v Preston. His Honour summarised these principles as follows at 318:

"It is … necessary to establish … the nature of the relationship between the plaintiff and Mr Arenales [the defendant] and, by reference to that in the circumstances, to determine whether and to what extent he owed to her a duty to drive in a manner different from that he did drive … ."

64 Mahoney JA emphasised that the defendant was driving the car in order to escape from the police. In attempting to do so he was driving fast and took turns or corners which the police could not take (see at 318 - 319). The plaintiff was a party to the attempt to escape from the police. In the circumstances His Honour found that the defendant did not owe a duty of care to the plaintiff.

65 I do not gain much assistance from Fabre v Arenales (supra). It contains no further explanation as to how the existence of a duty of care should be determined other than by reference to the nature of the relationship between the parties and the circumstances of the case. Fabre v Arenales is also different as regards the facts of this matter. In that case the plaintiff partook in the joint activity of trying to escape from the police by driving fast and taking short turns or corners. This was an activity which the plaintiff must have known to carry with it a high risk of an accident occurring.

66 In Winter v Commonwealth of Australia (1992) 112 ACTR 10 the plaintiff was injured while driving a motor cycle at high speed in a reckless manner and without a licence while being pursued by the police. He clipped a police vehicle which had been pulled across the carriageway

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to partially block the plaintiff's way and collided with a light standard. The case did not concern a joint illegal activity. The matter in issue was whether the police officer who parked the car across the carriageway owed the plaintiff a duty care. The court held that the police officer did owe a duty of care, but that the plaintiff was liable of contributory negligence (at 27 - 28). The case is therefore not of much assistance with regard to illegal joint enterprises.

67 However, in discussing the various judgments in Gala v Preston, Higgins J came to the following conclusion at 24 regarding the minority judgments:

"Brennan, Dawson and Toohey JJ endorsed a wider view than the majority. The minority would prohibit recovery by reference to a community standard or public policy requiring that result. It seems to me that the majority deliberately refrained from endorsement of such a view".

68 I respectfully agree with the view that the minority judgments in Gala v Preston each require the assessment of a community standard and the application of public policy. This is contrary to the approach by the majority in Gala v Preston pursuant to which the duty of care between the parties has to be established on the basis of the relevant principles, namely the principle of proximity and the salient factors mentioned in the majority decision which I have extracted. I therefore do not regard myself bound by the views expressed by the minority in Gala v Preston.

69 In Kickett v State Government Insurance Commission (1997) 26 MVR 321 (FCt SCt of WA) the plaintiff was injured when he and friends went on a joy-ride in a stolen vehicle. The driver of the vehicle was aged just under 15 years and the court accepted that the plaintiff, who was also aged 15, knew that the driver was too young to have a licence. The driver of the vehicle and another friend first stole a Torana and then returned with this to a house where the plaintiff was sleeping (which was not his own place of residence). They picked up the plaintiff and went on a joy-ride to a location where they had seen a Monaro which they also wished to steal and drive. On the way to the location of the Monaro the driver lost control of the Torana and it struck a power pole. The plaintiff was not injured on that occasion. After having stolen the Monaro, and on their way back to the house where the plaintiff had been sleeping the driver lost control of the vehicle and the plaintiff was injured.

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70 The case was largely decided on the facts and matters regarding the presentation of evidence in the court of first instance which were the main issues in the appeal. The majority judgment in Gala v Preston was cited by the court, but not further explained. In my view the judgment in Kickett v State Government Insurance Commission was arrived at on the basis of facts which differ from the facts in the present case and the decision in Kickett therefore does not constitute a determinative precedent in respect of the present case. Kennedy J said in Kickett that it was significant that the plaintiff on getting into the car had not asked to be taken to his own residence and that the accident did not happen on the way to his own residence (at 324). Owen J pointed out there was the prospect of involvement in a high speed police chase and that the plaintiff knew that the driver was inexperienced (at 328). Owen J also said that "mere joy-riding in a stolen vehicle in the circumstances of this endeavour" was sufficiently serious to negate the existence of a duty of care (at 329). Another distinguishing factor which appears from this case is that the plaintiff knew that the driver was likely to drive in an unsafe manner, as he had already lost control of the Torana before the parties stole the Monaro and drove back in that car.

71 I should also refer to Avram v Gusakoski [2006] WASC 16 in which the plaintiff was a passenger in a car driven by an inebriated driver and was injured when the driver lost control of the vehicle and it struck the pole of a traffic light. The illegality of the driver's conduct in driving a vehicle after having consumed large quantities of alcohol was not raised in this case. However, the defendant did raise the defence of "no duty of care". Pullin JA (with whom Malcolm CJ agreed) accepted at [5] on the basis of the decisions in, inter alia, Joslyn v Berryman (supra), Jeffries v Fisher [1985] WAR 250 at 252 and Gala v Preston (supra) that in the circumstances of a passenger voluntarily riding in a vehicle with a drunken driver a "no breach of duty defence" or, in an extreme case, the "no duty" defence was available.

72 Pullin JA found at [14] that in order to rely on the "no duty" defence a defendant would have to establish that the passenger not only knew, but also accepted, that he or she was to be driven by an inebriated driver. It was necessary for the passenger to have made a decision to travel as a passenger with a drunken driver. Further, the passenger was entitled to a reasonable period of time to make this decision. On the facts of the case it was held that the passenger did not have enough time to consider what to do when the drunken driver insisted that he wished to drive and demanded in an intimidating manner that the sober person, then sitting in the driver's seat, relinquish the driving to him. The passenger was sitting in the back

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seat and was tired and affected by drink. He had no money and his mobile phone had no "credit". It was 9 o'clock at night and the drunken driver's conduct had forced him to make an unconsidered decision to stay in the vehicle. The plaintiff had urged the sober person not to hand over the driving to the drunken defendant and, given more time for reflection, he might have decided to leave the vehicle. Once in the car and it was moving, it was fanciful to suggest that the plaintiff should have asked to get out (at [16] – [19]).

73 Pullin JA came to conclusion that the "no duty" defence depended upon the knowledge and acceptance by the passenger that he or she would be driven by a drunken driver. This required an examination of the particular circumstances of the case and the conduct of the participants. In this regard his Honour pointed out that the conduct to be examined was that of the particular participants, not the conduct of a hypothetical participant (at [25]).

74 Although Avram v Gusakoski (supra) was not decided on the basis that the plaintiff's journey with the defendant was an illegal joint enterprise, the relevant factors in determining the success of the "no duty" defence in a case of an inebriated driver are similar to the relevant factors in assessing a duty of care in a case concerning an illegal joint enterprise by riding in a stolen car. Pullin JA specifically referred to Gala v Preston as support for the requirement that the particular circumstances of the case needed to be examined in order to determine whether the passenger had knowledge and accepted that he or she would be driven by a drunk driver (at [25]).

75 There are two matters of relevance that arise from Avram v Gusakoski. If the reasoning in Avram v Gusakoski is applied to the fifth factor which I listed as one of the salient features extracted from Gala v Preston (see par 35 above), namely whether the plaintiff appreciated that he or she would be encountering a serious risk in participating in the criminal activity, then this needs to be assessed on the basis of the particular plaintiff's knowledge and conduct and not on the basis of what the hypothetical plaintiff should have known and done. I do not regard the sixth factor listed in Gala v Preston, namely whether the plaintiff could not have had any reasonable basis for expecting that the driver of the vehicle would drive it according to standards of competence and care, as importing an objective criterion when determining the level of the plaintiff's knowledge. In my view the sixth factor is a conclusion arrived at on the basis of the plaintiff's subjective knowledge and the other facts relevant to the case. I therefore propose to adopt the reasoning in

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Avram v Gusakoski and determine the fifth salient factor, namely whether the plaintiff appreciated that he or she would be encountering a serious risk in participating in the criminal activity on a subjective basis.

Application of the facts to the law

76 I shall next examine the application of each of the factors identified as the salient features in Gala v Preston as well as the factors of vulnerability by the plaintiff and control by the defendant to the facts of the present matter.

77 The first salient feature to be considered is the relationship between the plaintiff and the defendant. This relationship was not only that of driver and passenger. It was also a relationship between the 27-year-old defendant who said in evidence that he regarded himself responsible for the plaintiff's care and the sixteen year old plaintiff. The plaintiff respected and looked up to the defendant because she regarded him as her uncle and expected him to look after her.

78 The second salient feature concentrates on the question whether the joint criminal activity gave rise to the only relevant relationship between the parties. It is necessary to first investigate what the "joint criminal activity" was in this case. The plaintiff initially stole the car in order to allow Narelle to drive her home. The defendant's criminal activity consisted of him using a car that he knew to have been stolen for the purpose of taking the plaintiff, himself and others home. The defendant's conduct was contrary to s 371A of the Criminal Code (WA) pursuant to which a person who unlawfully uses a motor vehicle or drives it without the consent of the owner is said to steal that motor vehicle. The plaintiff joined in that criminal activity.

79 Although counsel for the defendant did not rely on the fact that the defendant had committed an offence other than the stealing of a motor vehicle I have considered the question whether the defendant also committed an offence by driving a motor vehicle while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle. Such conduct is an offence pursuant to s 63(1) of the Road Traffic Act 1974. However, there was no evidence that the defendant was under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle. The plaintiff said that the defendant initially drove sensibly through the city. Although there was evidence that the defendant together with others drank two bottles of whisky, a couple of bottles of beer and another half a carton of beer, this alcohol was consumed by about eight people and over a period from 8 pm

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to 4.30 am. There was no evidence that the defendant was staggering or showed other signs of being drunk or that he was unable to properly control the car at the beginning of the journey. It is therefore difficult to assess exactly how much the defendant was under the influence of alcohol and to what extent this influenced his driving.

80 Even if it is assumed that the defendant did plead guilty to the charge of driving under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle and that his admission of the plea of guilty in this trial is sufficient proof that he was under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle, there is insufficient evidence that the plaintiff realised that the defendant's level of intoxication was of such a degree. She denied in cross-examination that she knew that the defendant had a lot to drink and said that she had not been with him the whole night.

81 It is also possible that the defendant committed an offence against s 64(A)(A) of the Road Traffic Act 1974 pursuant to which a person who drives a motor vehicle while the percentage of alcohol in his blood equals or exceeds 0.05 per cent commits an offence. However, there was no evidence before the court that the percentage of alcohol in the defendant's blood equalled or exceeded 0.05 per cent.

82 Lastly, it could be argued that the defendant committed an offence against s 234(1) of the Road Traffic Code 2000, pursuant to which a driver shall not cause or permit a passenger to occupy a position which is not fitted with a seatbelt unless every seat position with a seatbelt fitted is occupied by another person. Section s 234(2) further makes it an offence where the driver of a motor vehicle with two or more rows of seats causes or permits a passenger to occupy a front seat position without a seatbelt. It is not clear on the evidence whether the passengers in the back of the car used up all the seat positions with a seatbelt fitted so that it would not have been an offence if the others did not wear a seatbelt. The defendant is likely to have committed an offence against s 234(2) of the Road Traffic Code 2000 by allowing Narelle to sit in a position between the passenger seat and the driver's seat as this position is likely to not have had a seatbelt.

83 As the only criminal activity relied upon by counsel for the defendant was the driving of a stolen vehicle, the plaintiff was not aware of the level of the defendant's intoxication and the offence against s 234(2) of the Road Traffic Code 2000 is relatively minor, I shall

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consider the joint criminal activity to be the driving of a stolen vehicle when assessing whether the salient features apply to this case.

84 As pointed out by Brennan J in Gala v Preston the focus should be on the plaintiff's criminal activity (see par 40 above). The plaintiff's criminal activity may consist of joining in with the defendant's criminal activity. In this case the plaintiff joined in with the defendant's criminal activity as she allowed him to drive her home in a stolen car. In my view it is irrelevant to the assessment of the nature of the joint criminal activity that the plaintiff initiated the stealing of the car and started the car by way of a dipstick. The plaintiff's criminal activity that has to be kept in focus is that arising from the joint illegal activity and this was allowing the defendant to drive her home in a stolen car. The position would have been exactly the same if the defendant had initiated the stealing of the car.

85 There was no evidence that the parties embarked on a "joy-ride" as this word is used in the context of the cases dealing with illegal joint enterprises and stolen vehicles. The word "joy-ride" in that context appears to mean a trip undertaken for fun, without any fixed destination and with the purpose of making the most of the thrill of flaunting the law while driving a stolen car. Other factors that often apply in the context of a "joy-ride" are that the various participants are each given an opportunity to drive the car (see Smith v Jenkins at 405 and Gala v Preston at 245), that the participants are a group of friends, that they have all been drinking alcohol and that they encourage each other, at least tacitly, in their aim of gaining as much fun and thrill from the ride as possible. The thrill of flaunting the law and the possibility of being detected by the police and being involved in a high speed car chase also seems to contribute to the mix of factors that make the excursion a "joy-ride" (see Gala v Preston at 254 and Kickett v SGIO at 324). It is clearly not necessary that all the above mentioned factors need to be present before a trip can qualify as a "joy-ride" in the context in which this word has been used in the cases dealing with illegal joint enterprises.

86 However, in the present case very few of those factors were applicable. The passengers in the defendant's car appear to have been a group of people who knew each other, apart from Shanelle, but they did not set out together with the purpose of making the most of the thrill of driving a stolen car in open flaunt of the law. The plaintiff and the defendant had been drinking alcohol, but she certainly did not wish to partake in any exercise which involved the defendant openly flaunting the law by speeding or otherwise driving in a reckless manner. The plaintiff specifically distanced herself from any such conduct when she asked the

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defendant to slow down and to stop to let her and her sister out of the car. The defendant was also not driving aimlessly through the streets of Perth, but on the way to at least his house, if not that of the plaintiff.

87 The parties in this case were not engaged in a "joy-ride" in the sense that this word has been understood in cases such as Smith v Jenkins, Gala v Preston and Kickett v SGIO. The plaintiff partook in the defendant's illegal activity of driving a stolen vehicle. However, the vehicle was not driven for the purpose of a joy-ride. It was driven for the purpose of taking the participants home.

88 The activity of driving a stolen vehicle was also not the only factor which gave rise to the relationship between the plaintiff and the defendant. The other factor was the plaintiff's reliance on the defendant to look after her and to drive her home safely.

89 The third salient feature addresses the question whether the joint criminal activity constituted the whole context of the accident. I understand this factor to require an assessment as to whether the criminal activity had a definitive connection with the circumstances under which the negligent act occurred. This raises the question whether the defendant drove in a reckless manner, namely by speeding, running two red lights and revving the car, because he was driving a stolen car. The defendant did not say that he thought that he could drive the car in a reckless manner as it was not his and he did not care for its preservation. It may be assumed to some extent that a person driving a stolen car is likely to have less concern for maintaining the car in good condition than the owner of the car would have. However, that in itself does not explain why the defendant was speeding and running red lights.

90 There is also no evidence that the mere presence of nine passengers in the car encouraged the defendant to show off and drive adventurously. There was certainly no evidence that any of the passengers encouraged him to do so either expressly or tacitly. On the contrary, the plaintiff gave evidence that she asked the defendant to slow down and stop. I have already discussed that the defendant did not embark on a "joy-ride" but drove the car with the purpose of taking the plaintiff and others, including himself, home.

91 It is therefore not clear on the evidence whether the fact that the car was stolen made any material contribution to the manner in which the defendant was driving. He may very well have decided to drive like that because of his state of intoxication or by reason of over exuberance

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caused by an evening of gaiety or by reason of having fun teasing the plaintiff and her sister who were concerned about his manner of driving. The defendant may have driven the car in the same manner if it had been his own or that of the plaintiff.

92 I am therefore not able to come to the conclusion that the joint criminal activity, namely the act of driving the stolen car, constituted the whole context of the accident. I am of the view that a court cannot simply make the assumption that whenever a person drives a stolen car, with nine passengers in the car and after having consumed alcohol, any act of negligent driving necessarily arises from or has some connection to the fact that the car was stolen.

93 There was also no evidence of what act of negligence caused the car to leave the road and hit a pole other than the defendant's evidence that he was charged with dangerous driving causing death and with dangerous driving causing grievous bodily harm and that he pleaded guilty. The accident may have been caused by an act of negligence that had nothing to do with the defendant's earlier speeding, earlier driving through red lights or revving the car. The accident may have arisen from momentary inattention. The difficulty for the defendant's case was that the defendant did not admit in evidence to driving the car in a reckless manner. However, even if it is assumed that the car hit the pole because the defendant was speeding or driving in a manner which was adventurous or testing the limits of safe driving, this does not mean that it necessarily had any connection with the fact that the car was stolen.

94 Accordingly, there is very little evidence that the criminal activity of driving a stolen car had a definitive connection with the circumstances from which the negligent driving arose, or, as the majority put it in Gala v Preston, that the criminal activity constituted the whole context of the accident.

95 The fourth salient feature to be considered is whether the criminal activity was, of its nature, fraught with serious risks. The criminal activity was driving a stolen car to take the driver and its passengers to a particular destination. It was not a joy-ride. Whereas that activity is clearly illegal, it is not, of its nature fraught with serious risks. It clearly depends on the circumstances whether this is the case or not. A teenager who may have been drinking at home with his friends may take his parents' car without their permission to take his friends home. He and his friends would be involved in a illegal joint enterprise contrary to s 371A(1) of the Criminal Code (WA). However, if the teenager drives the car in a responsible

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manner with the purpose of taking his friends home, the activity of driving a stolen car is not, of its nature, fraught with serious risks.

96 The fifth salient feature to be considered is whether the plaintiff appreciated that she would be encountering serious risks in participating in the criminal activity. I have already indicated that the plaintiff did not appreciate that she would encounter serious risks in driving home with the defendant at the wheel of the stolen car. She said in evidence that she expected the defendant to drive her home safely and to look after her. She stated that she had not previously driven with the defendant, but had no reason to be concerned about any of his behaviour in the past. She knew that he had been drinking, but not how much. She expected that he would take her home and not on a joy-ride. She did not realise from the start that the defendant would drive in a reckless manner contrary to the rules of the road. She said in evidence that he initially drove sensibly through the city and over the Causeway leading out of the city. As soon as she appreciated that the plaintiff started speeding and driving through a couple of red lights she asked him to slow down and later to stop.

97 The question whether the plaintiff appreciated that she would be encountering serious risks in driving with the defendant is a matter that has to be assessed at the time when the plaintiff first decided to accept a lift with the defendant. As held by Pullin JA in Avram v Gusakoski (supra) at [19] once the passenger was in the car and it was moving it would be fanciful to suggest that the passenger should ask to get out. In any event, in this case the plaintiff did ask to be let out. Further, as indicated earlier (see par 75 above), I am of the view on the basis of the decision by Pullin J in Avram v Gusakoski (supra) that the the fifth salient feature should be assessed on the basis of the particular plaintiff's knowledge and not on the basis of what a resonable hypothetical plaintiff would have appreciated.

98 Neither the plaintiff, nor for that matter a reasonable hypothetical plaintiff, had any reason to appreciate that she would be encountering serious risks. There was no evidence that the defendant presented as too intoxicated to be driving safely and the mere fact that they were driving in a stolen car would not of itself have made the plaintiff concerned about any risk of the defendant driving recklessly. As I have indicated earlier, unless there is evidence which shows that the parties were about to embark on a joy-ride and to have some fun in flaunting the law, the mere fact that they are driving in a stolen vehicle does not mean that this would necessarily be associated with an encounter of a serious risk.

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99 In Gala v Preston at 254 the majority referred to the fact that the stolen vehicle could have been the subject of a report to the police which might have led to a pursuit of the vehicle by the police. Their Honours also placed reliance on the fact that the participants in the joint illegal enterprise had been drinking 40 Scotches or the equivilant in beer. On the basis of those facts their Honours found that the particpants must been taken to have appreciated that they would encounter serious risks in travelling in the vehicle.

100 In Gala v Preston the participants went on a joy-ride. It is not clear from the majority judgment whether it is by reason of this fact or the mere fact that the vehicle was stolen that their Honours came to the conclusion that there might be a pursuit by the police of the stolen vehicle. In my view it is more likely that participants in a joy ride would attract the attention of the police by the manner of their driving than the police noticing a reported stolen vehicle on the road. I am not able to make the assumption that every stolen vehicle is immediately reported and located and pursued by the police as soon as the report of the theft is made.

101 The plaintiff and the defendant in the present case did not embark on a joy-ride and there was no evidence that the plaintiff appreciated that the defendant would drive recklessly or become involved in a high speed car chase if the police pursued their vehicle. She knew that the vehicle was stolen, but she still expected the defendant to drive her home safely. She did not appreciate at the time that she allowed herself to ride with the defendant at the wheel that the defendant would drive in the manner that he did after they had left the city.

102 The present matter is also distinguishable from the facts in Gala v Preston in that there is no evidence that the defendant was highly intoxicated. In Gala v Preston the driver had been drinking 40 Scotches.

103 The risk of the stolen car being the subject of a report and police pursuit was also referred to by Kennedy J in Kickettv SGIC at 324. His Honour came to the conclusion that this was one of the reasons why the plaintiff did not have a reasonable basis for expecting the defendant to drive the car according to ordinary standards of competence and care. However, the facts of Kickett are distinguishablefrom the facts of this matter. In Kickett the participants went on a "joy-ride" and were out on an evening of flaunting the law. They drove in one stolen car to a location where they had seen another car which they wished to steal and drive. On the way to the second car the driver had already lost control of the first car

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and struck a power pole. Those circumstances were quite different to the facts of the present matter.

104 I therefore come to the conclusion that the plaintiff did not appreciate that she would encounter serious risks in riding with the defendant at the wheel.

105 I further respectfully adopt the finding by Pullin JA in Avram v Gusakoski at [14] that before a "no duty" defence is made out a court must be satisified that the passenger not only knows but also accepts the risks flowing from being driven by an inebriated driver. I see no reason why, if this requirement applies to accepting the risk of riding with an inebriated driver in the context of a "no duty" defence, it should not also apply in the same context to the risks arising from joining in an illegal enterprise.

106 The majority in Gala v Preston used the word "appreciated" when describing the plaintiff's knowledge of the serious risks. According to the New Shorter Oxford English Dictionary the word "to appreciate" means to "perceive the full force of, understand or recognise". Accordingly, the majority in Gala v Preston appear to have included the concepts of knowledge and acceptance in the requirement that the plaintiff "appreciated" the serious risks.

107 I have already found that the plaintiff did not appreciate that she would encounter any serious risks arising from the situation that she would be driven home by the defendant who was inebriated and driving a stolen car. Insofar as it maybe necessary to deal with the plaintiff's acceptance of any serious risks, for example, the risk of driving in a stolen car with a driver who had been drinking, the facts of this case are not dissimilar to those in Avram v Gusakoski. In the present case the plaintiff also did not have time to weigh up the inconvenience of finding herself without a lift home against the risk of accepting a ride with the defendant in an inebriated state. She had no money and it was 4 o'clock in the morning. She was keen to get home and did not have the authority to challenge "her uncle's" decision to take over the driving of the car. She was tired and affected by drink. Insofar as necessary, I therefore find that the plaintiff did not accept any serious risk of driving with an inebriated driver and in a stolen car.

108 The sixth salient feature is whether the plaintiff could not have had any reasonable basis for expecting that the defendant would drive the car according to ordinary standards of compentence and care. In my view

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there is no evidence on the basis of which such a finding can be made. The plaintiff had not driven with the defendant before but expected him to drive her home safely. The fact that she assumed that he did not have a driver's licence, does not necessarily mean that she assumed that he would drive in a reckless manner and ignore the rules of the road. There was also no evidence that the defendant was so intoxicated that the plaintiff could not reasonably have expected him to drive according to ordinary standards of competence and care. I have pointed out before that the mere fact that the car was stolen did not mean that the defendant would flaunt the law by his manner of driving. In the present case the purpose of driving the stolen car was not to go on a "joy-ride", but to take the defendant and the passengers home.

109 The seventh sailent feature is the nature and and incidents of the illegal enterprise. I have already dealt with this factor when I examined the nature and incidents of the joint criminal activity in the context of the second salient feature.

110 The eighth salient feature is whether in the circumstances it would not be possible or feasible for a court to determine the appropriate standard of care to be expected of the defendant as the driver of the vehicle. In the particular circumstances of this matter, I see no reason why a court cannot determine the appropriate standard of care on the basis that it should be the normal standard of care expected of a competent and experienced driver. As indicated by Toohey J in Gala v Preston at 288, there may be no difficulty in determining a standard of care in certain cases and his Honour gave the example of two persons stealing a car from a parking lot in the circumstances where its absence may not be noticed for sometime, and then driving the car a relatively short distance.

111 Although the facts of the present case may not match exactly the facts cited by Toohey J in the example, in that it is debatable what is a "short distance", I have previously explained why the mere fact that the car was stolen did not give rise, on the facts of this case, to a situation where the defendant could not be expected to drive according to the ordinary standards of competence and care. The fact that the car was stolen was not a factor from which certain risks arose which would have made it impossible or not feasible to determine an appropriate standard of care.

112 As regards the additional factor of vulnerability by the plaintiff, I am of the view that this factor was also present in this case. The plaintiff was vulnerable to the decision by the defendant to take over as the driver of

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the car, because she regarded him as her uncle and would not have been in a position to question his authority. Further, once the car was on the road, she was unable to get out of the car and was exposed to the defendant's reckless method of driving. The plainiff was also vulnerable by reason of the circumstances under which she did not object to driving with the defendant at the wheel. If she had alighted from the car she would have been left stranded, with no money at 4 am in the city and far away from her home in Maddington.

113 The additional factor of control by the defendant is also present in the circumstances of this matter. The defendant did not only have control over who would drive the car, he also had control over the manner in which the car was to be driven once they had left the city centre. The plaintiff repeatedly asked the defendant to slow down or stop, but the defendant ignored the plaintiff's requests where he was in a positon to control the manner of driving and therefore the risk to which the plaintiff was exposed.

114 The application of the salient features relevant to a case of joint illegal enterprise together with the factors of vulnerability and control lead to the conclusion that the defendant owed an duty of care to the plaintiff. The evidence did not indicate that such a duty did not exist or should be attenuated.

115 I accept that this is a case which on first impression appears to fall into the same category as some of the other cases dealing with illegal joint enterprises and stolen cars, such as Smith v Jenkins, Gala v Preston and Kickett v SGIC, in which the courts held that there was no duty of care. However, the application of the salient features identified in Gala v Preston indicates that on the particular facts of this case, it falls into a different category. The main distinguishing feature is that although this case involved a ride in a stolen car, it was not a "joy-ride" and it was not a journey that courted the risk of serious injury, at least not from the outset.

116 Accordingly, I find that the defendant owed the plaintiff the usual duty of care that a driver owes a passenger.