In an appeal from Western Australian regarding the construction of s.371A of their Criminal Code concerning stealing of a motor vehicle and the party provisions in s.8, the High Court found in a criminal activity where the purpose of the legislation was not only to protect property rights but also road safety and the prevention of dangerous driving, that a duty of care is not owed.
However, in the circumstances of this case a duty was found because the plaintiff had withdrawn from the illegal enterprise, but there were no reasonable steps available to avoid the further commission of the offence, i.e. she could not get out of the motor vehicle.
In reaching this conclusion the High Court considered the ultimate the question to be asked is: “would it be incongruous for the law to proscribe the plaintiff’s conduct and yet allow recovery in negligence for damage suffered in the course, or as a result, of that unlawful conduct?”
To determine the answer to this it is necessary to consider the “nature, scope and terms of the statute, the nature of the evil against which it is directed, the nature of the conduct prescribed and the pre-existing state of the law”.
In reviewing the pre-existing law, the decisions of Henwood, Smith v Jenkins, Jackson v Harrison and Gala v Prestonwere considered. The High Court placed emphasis on the coherency of the law with areas such as contract and trusts.
FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ
Common threads in the decided cases
What has been said about the previous decisions in this Court shows that some propositions can be made. First, the fact that a plaintiff was acting illegally when injured as a result of the defendant’s negligence is not determinative of whether a duty of care is owed. Second, the fact that plaintiff and defendant were both acting illegally when the plaintiff suffered injuries of which the defendant’s negligence was a cause and which would not have been suffered but for the plaintiff’s participation in the illegal act is not determinative. Third, there are cases where the parties’ joint participation in illegal conduct should preclude a plaintiff recovering damages for negligence from the defendant. Fourth, different bases have been said to found the denial of recovery in some, but not all, cases of joint illegal enterprise: no duty of care should be found to exist; a standard of care cannot or should not be fixed; the plaintiff assumed the risk of negligence. Fifth, the different bases for denial of liability all rest on a policy judgment. That policy judgment has sometimes been expressed in terms that the courts cannot regulate the activities of wrongdoers and sometimes in terms that the courts should not do so.
Twice this Court has held (unanimously in each case) that one illegal user of a motor vehicle cannot recover damages for injuries sustained as a result of the negligent driving of another illegal user of the vehicle. Central to the conclusion in each of those cases was the observation that the negligence alleged was negligence by one criminal in carrying out his part in the unlawful undertaking in which both plaintiff and defendant were engaged.
The proposition that courts cannot regulate the activities of wrongdoers has already been rejected. In a case of illegal use of a motor vehicle there is a readily identified standard of care that could be engaged: the standard of care which road users other than the driver’s criminal confederates are entitled to expect the driver to observe.
Why should courts not regulate the activities of the wrongdoers by requiring of the driver that he or she exercise reasonable care for the safety of other road users and any passenger in the vehicle, whether or not the passenger is complicit in the crime? As explained at the outset of these reasons, the answer must lie in whether it is incongruous for the law to provide that the driver should not be using the vehicle at all and yet say that, if the driver and another jointly undertake the crime of using a vehicle illegally, the driver owes the confederate a duty to use it carefully when neither should be using it at all.
Incongruity (whether described by that word or as “contrariety” or “lack of coherence”) will not be demonstrated or denied by bare assertion of the answer. More analysis is required. If a statute has been contravened, careful attention must be paid to the purposes of that statute. It will be by reference to the relevant statute, and identification of its purposes, that any incongruity, contrariety or lack of coherence denying the existence of a duty of care will be found. That is the path that was taken in Henwood. It is the same as the path that has been taken in relation to illegality in contract and trusts. The same path should be taken in cases where the plaintiff sues the defendant for damages for the negligent infliction of injury suffered in the course of, or as a result of, the pursuit of a joint illegal enterprise.
The purposes of the legislation
Savings provisions apart, the legislative history behind s 371A of the Code demonstrates that the offence of illegal use of a motor vehicle soon passed from the relatively minor offence created by the Traffic Act 1919 to a more serious crime (with the enactment of s 390A of the Code in 1932) and thence (by the enactment of s 371A of the Code, and repeal of s 89(1) of the Road Traffic Act in 1991) to a still more serious crime equated with theft. An association between the illegal use of a motor vehicle and driving in a manner that was reckless or dangerous was reflected by the introduction of aggravated forms of the offence of illegal use.
These changes in the legislation reflected not only a rise in the incidence of illegal use of motor cars, but also a recognition of the dangers to life and limb that often attended the commission of that crime. No doubt the legislation, both as it now stands and as it stood in earlier times, must be understood as effecting a purpose of protecting the property interests of vehicle owners. But in more recent years the legislature also recognised the fact that those who took and used vehicles without the permission of their owners often drove (as Dawson J pointed out in Gala v Preston) with a “concomitant lack of responsibility for the safety of the vehicle involved and the inevitable desire to avoid detection”. The legislative purposes of s 371A are not confined to protection of property rights. They include the advancement of road safety.
If expressed only as the protection of property rights and the promotion of general road safety, the statutory purposes of s 371A, standing alone, appear not to speak to any question of the liability for negligence of one illegal user to another. But there is a further question that must be considered before concluding that one illegal user can sue another in negligence.
As noted earlier, a critical step in the reasoning in earlier cases in this Court considering the liability in negligence of one illegal user of a vehicle to another was that the negligence has been committed in the performance of the joint criminal venture. That manner of expressing the issue should not be permitted to mask the significance of the proper identification of the venture and its nature. More particularly, it is a description of the circumstances that directs attention to questions about what is the venture and what, if any, criminal responsibility the passenger may have for the manner of the confederate’s driving that is a cause of the passenger’s injury.
The venture between the parties may be described as a venture to use the vehicle illegally. But, as has already been seen, s 8(1) of the Code provides that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose “an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose”, each is deemed to have committed that offence. If two or more persons agree to take and use a vehicle illegally, and one of them drives it unsafely, it will likely be concluded that “a probable consequence of the prosecution of such purpose” is the driving of the vehicle with a “lack of responsibility for the safety of the vehicle”, its occupants and other road users, and in a way that departs markedly from a standard of driving with reasonable care. The cases in which those are not probable consequences of two or more persons joining in the taking and illegal use of a vehicle will likely be rare. It is the recognition of that fact that lies beneath the conclusions reached in both Smith v Jenkins and Gala v Preston. The joint criminal venture to which reference was made in those cases was a venture in which reckless or dangerous driving was a probable, but not inevitable, incident of the venture.
If, in a particular case, it were to be shown that a probable consequence of commission of an offence of taking or using a vehicle illegally was the commission of other driving offences (including reckless or dangerous driving) those who were complicit in the initial offence would be criminally liable for the subsequent offences as well. More particularly, if, as here, the driver of the illegally used vehicle drove dangerously, and driving in that manner was a probable consequence of the prosecution of the joint illegal purpose, a person complicit in the crime of illegal use would also be complicit in the offence of driving dangerously. And if, as a result of the dangerous driving, the complicit passenger were injured, it would evidently be incongruous to decide that the offender who drove the vehicle owed that passenger a duty to drive with reasonable care. The passenger would have committed the offence of dangerous driving and yet, if the driver owed the passenger a duty to take reasonable care, the passenger (who would be criminally responsible for the driver’s dangerous driving) might sue the driver for damages for driving negligently.
The incongruity identified stems immediately from the injured passenger’s complicity, not only in the illegal use of the vehicle, but also in the driver’s commission of the offence of driving dangerously. To conclude that the driver owed the passenger a duty to take reasonable care when driving would not be consistent with the purpose of the statute proscribing dangerous driving.
Does the conclusion of incongruity apply in every case of joint illegal use? Does the conclusion depend upon whether, in the particular case, the driver drove recklessly or dangerously and the passenger was complicit in that further offence?
In many cases in which an illegal user of a vehicle seeks to recover damages from a driver complicit in that crime, the passenger and the driver will also be complicit in a further offence proscribing driving in the manner which was a cause of the passenger’s injury. But some cases may not be of that kind. An example may be where the driver of a stolen car, affected by alcohol, makes an error of judgment which causes an accident. In such a case, the fact that the vehicle was being used illegally would seem not to be immediately relevant to the liability of driver to passenger. Would it be inconsistent with the statutory purposes of the proscription of illegal use of a vehicle to hold that the driver owed the passenger a duty to drive with reasonable care? Should not the significance attached to the driver being affected by alcohol fall for consideration only as a question about contributory negligence?
A complaint frequently made in the cases and academic commentary is that the law relating to illegality in tort wields too broad an axe to provide a satisfactory principle that will not have unintended and unjust consequences (often described as “Draconian”). Another complaint frequently made is that one wrongdoer is given an unjust and unjustifiable advantage if a defence of illegality is recognised. Both criticisms have been levelled at the decisions, in Smith v Jenkins and Gala v Preston, that one illegal user of a vehicle does not owe a duty of care to a passenger complicit in the illegal use. The rule is said to be too broad and undiscriminating in its application.
Two points may be made in answer to the criticisms. First, if the relevant principle turns, as it must, upon a search for statutory purposes, most if not all of the asserted difficulties fall away. The application of the relevant principle is the consequence of the proper application of the statute. The balance of advantage or disadvantage to criminal participants is a matter for the legislature.
Secondly, and of more particular relevance to the immediate matter, whether or not the criticisms are expressed in this way, they must assume that the relevant legislative purposes of s 371A are completely stated as being the protection of property interests and the promotion of road safety. A purpose described only as the promotion of road safety may well be said not to affect whether a duty of care should be found. But the statutory purposes of s 371A are more particular than a general concern with road safety. The section proscribes and punishes the taking and use of a vehicle illegally as it does because it recognises that, in a case where two or more persons form a common intention to prosecute that unlawful purpose, it is often a probable consequence of the commission of the crime that the driver will drive recklessly or dangerously.
Whether one participant should be held to owe the other a duty to take reasonable care in the performance of the common purpose of using the car illegally cannot depend upon whether the possibility of reckless or dangerous driving eventuates. It would be absurd to hold that one owed the other a duty to take reasonable care unless and until he or she departed markedly from observing that standard of care.
The refusal to find a duty of care between those complicit in the offence follows from the more precise identification of the way in which the statutory proscription of illegal use of a vehicle seeks to promote road safety. The offence of illegally taking and using a vehicle is dealt with as it is because of its association with reckless and dangerous driving. The statutory purpose of a law proscribing dangerous or reckless driving is not consistent with one offender owing a co-offender a duty to take reasonable care. And in a case where two or more are complicit in the offence of illegally using a vehicle, the statutory purpose of the law proscribing illegal use (here, s 371A) is not consistent with one offender owing a co-offender a duty to take reasonable care. The inconsistency or incongruity arises regardless of whether reckless or dangerous driving eventuates. It arises from the recognition that the purpose of the statute is to deter and punish using a vehicle in circumstances that often lead to reckless and dangerous driving.
These conclusions accord with the way in which the courts approach questions of illegality in contract and in relation to trusts. Whether an analogy can be drawn with the rule that a contract whose making or performance is expressly or impliedly made illegal by statute, or is better drawn with those cases “where the policy of the law renders contractual arrangements ineffective or void even in the absence of breach of a norm of conduct or other requirement expressed or necessarily implicit in the statutory text”, may be open to debate. Whichever analogy may be the more apt, the root principle that is engaged is, as noted earlier, sufficiently captured by any of the expressions “incongruity”, “contrariety” or “lack of coherence”.
The circumstances of this case
As noted at the outset of these reasons, Danelle twice asked to be let out of the car before it ran off the road. She was not.
Reference has already been made to the provisions of s 8 of the Code concerning liability for offences committed in prosecution of a common unlawful purpose and to the provisions made by s 8(2) for withdrawal from a joint criminal enterprise. It was not disputed, in this Court, that it was open to Danelle to submit that she had withdrawn from the common purpose of illegally using the vehicle before the accident, and no positive argument was advanced to demonstrate that she had not done so in the manner required by s 8(2) of the Code. The requirement, in s 8(2)(c) of the Code, that an offender, having withdrawn from an enterprise and communicated that fact to his or her confederates, take “all reasonable steps to prevent the commission of the offence” invites attention in this case to what Danelle could reasonably have done to prevent the continued illegal use of the car. Section 8(2)(c) does not require that there have been some steps available to her of the kind specified in that paragraph. And in this case there were none. There were no reasonable steps she could take to prevent the continued illegal use of the vehicle.
As Buss JA records, a submission that Danelle had withdrawn from the common purpose of illegally using the vehicle was not made, in terms, in the Court of Appeal, or at trial. It was accepted that this did not prevent Danelle from advancing the argument in the appeal to this Court.
Because Danelle had withdrawn from, and was no longer participating in, the crime of illegally using the car when the accident happened, it could no longer be said that that Maurin owed her no duty of care. That he owed her no duty earlier in the journey is not to the point. When he ran off the road, he owed a passenger who was not then complicit in the crime which he was then committing a duty to take reasonable care.
Brisbane Barrister – David Cormack