Miller v Miller

The High Court of Australia considered an appeal concerning a plaintiff injured while a passenger in a stolen motor vehicle driven by the defendant. The plaintiff had twice requested to be let out of the vehicle, but these requests were not heeded. The central dispute revolved around whether the plaintiff could recover damages for negligence from the defendant, despite both parties being engaged in the illegal use of the stolen vehicle, which contravened section 371A of the Criminal Code (WA).

The legal issues before the Court were whether the defendant owed a duty of care to the plaintiff in these circumstances, whether the statutory purpose of the relevant criminal provision was incongruous with the existence of such a duty between joint illegal users, and whether the plaintiff's requests to exit the vehicle were sufficient to constitute a withdrawal from the joint illegal enterprise or if reasonable steps were available to prevent the commission of the offence. The Court also had to determine how the plaintiff's illegal conduct impacted their ability to recover damages for negligence.

The High Court reasoned that the illegality of a plaintiff's conduct does not automatically preclude recovery in negligence, nor is causation alone a sufficient criterion. The Court emphasised that the principles governing such situations are not found by simply observing the plaintiff's contravention of the criminal law or by invoking the maxim *ex turpi causa non oritur actio* without further explanation. Instead, the Court examined the statutory provisions, their purposes, and relevant case law, including *Henwood v Municipal Tramways Trust (SA)*, *Smith v Jenkins*, *Jackson v Harrison*, and *Gala v Preston*. The Court considered that the plaintiff's requests to leave the vehicle were significant in assessing their continued participation in the joint illegal enterprise.

The appeal was allowed, and the orders of the Court of Appeal of the Supreme Court of Western Australia were set aside. The Court of Appeal's order dismissing the appeal to that Court was reinstated, meaning the plaintiff's claim was ultimately dismissed.