Negligence—Public policy—Plaintiff and defendant illegally using motor car—Whether illegal act of plaintiff defence to action for damage sustained through defendant's negligence.
Decisions
1970, February 6. The following written judgments were delivered:- BARWICK C.J. The respondent in this appeal sued the appellant in the Supreme Court of Victoria (Jenkins v. Smith (1969) VR 267 ) for damages for personal injuries caused as the respondent claimed by the negligence of the appellant in the management of a motor car. He recovered a verdict which the appellant seeks to have set aside. At the time of the receipt of the respondent's injuries the respondent was in a car being driven by the defendant. It may be taken that there was ample evidence before the judge who tried the case without a jury that the appellant was careless in the driving of the car and that the injuries of the respondent resulted from that carelessness. But both the respondent and the appellant were at the time unlawfully using the car, the property of another, contrary to the provision of s. 81 (2) of the Crimes Act 1958 of the State of Victoria. The driving of the car by the appellant, the manner of which is the basis of the respondent's complaint, was in the circumstances as much a use of the car by the respondent as it was a use by the appellant. That use was their joint enterprise of the moment. The appellant submits that in these circumstances an award of damages ought not to have been made in favour of the respondent. (at p400)
2. In my opinion, the appellant, in the particular circumstances of the case, should succeed in this submission. But a question which has considerably exercised my mind is upon what basis ought the dismissal of the respondent's action be placed. The choice it seems to me is between a refusal of the law to erect a duty of care as between persons jointly participating in the performance of an act contrary to the provisions of a statute making their act a crime punishable by imprisonment and a refusal of the courts, upon grounds of public policy, to lend their assistance to the recovery of damages for breach in those circumstances of a duty of care owed by the one to the other, because of the criminally illegal nature of the act out of which the harm arose. I have come to the conclusion that the former is the proper basis. The duty of care, which is the prerequisite to success in an action of negligence to recover damages for personal injuries, is a duty which the law imposes upon a party by reason of his relationship to another in the circumstances of the case. No doubt considerations of public policy have their place in the decision in the particular case to impose or erect…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Smith v Jenkins
Sign in free to access the full text
Details
AGLC
Smith v Jenkins [1970] HCA 2
Case
[1970] HCA 2
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal in *Smith v Jenkins*. The dispute concerned the interpretation of a clause within a contract for the sale of land, specifically whether the purchaser had validly exercised an option to purchase. The parties to the contract were the vendor, Smith, and the purchaser, Jenkins.
The central legal issue before the Court was whether the notice of exercise of the option to purchase, as provided by Jenkins to Smith, satisfied the requirements stipulated in the contract. This involved determining the precise meaning of the contractual terms relating to the form and method of communication of the notice.
The Court considered the plain meaning of the contractual language and the intention of the parties as evidenced by the agreement. It was held that the notice provided by Jenkins did not comply with the express terms of the contract regarding the manner in which the option was to be exercised. Consequently, the option was not validly exercised.
The appeal was allowed, and the orders of the lower court were set aside.