Gala

172 C.L.R.]

GALA AND OTHERSDEFENDANTS,

PRESTONPLAINTIFF,

OF AUSTRALIA.

AND

ApPELLANTS;

RESPONDENT.

243

ON APPEAL FROM THE SUPREME COURT OF QUEENSLAND.

Negligence - Duty of care - Plaintiff and defendant unlawfully using stolenmotor car - Whether driver owed duty ofcare to passenger - Proximity- Public policy.

A passenger in a motor car was injured as a result of the driver's carelessdriving of the car which they had earlier stolen and were unlawfully usingat the time of the accident contrary to the provisions of s. 408A of TheCriminal Code (Q.).

Held, that the passenger could not in the circumstances recover damagesfrom the driver; by Mason e.J., Deane, Gaudron and McHugh n. on theground that the parties were not in a relationship of proximity to eachother so that the driver owed a relevant duty of care to the passenger; byBrennan J. on the ground that to admit a duty of care would destroy thenormative influence of s. 408A; by Dawson J. on the ground that to permitthe criminal enterprise in the case to be used as the foundation for erectinga standard of care would be to condone a breach of the criminal law; andby Toohey J. on the ground that the driver owed no duty of care to thepassenger because his injury arose from a serious criminal act in whichboth participated.

Smith v. Jenkins (1970), 119 C.L.R. 397; Progress and Properties Ltd. v.Craft (1976), 135 C.L.R. 651; Jackson v. Harrison (1978), 138 C.L.R. 438;and Cook v. Cook (1986), 162 C.L.R. 376, considered.

Decision of the Supreme Court of Queensland (Fun Court): Preston v.Gaia, [1990] I Qd R. 170, reversed.

ApPEAL from the Supreme Court of Queensland.On 14 August 1984 Frank Raymond Preston was injured when a

motor car driven by Michael Gala struck a tree near Gladstone inQueensland. Earlier that day Preston, Gala and two other men,having consumed large quantities of alcohol, had stolen the car, andat the time of the accident were unlawfully using it contrary tos. 408A of The Criminal Code (Q.). Preston sued Gala and theowners of the vehicle in the District Court for damages fornegligence. The third party insurer of the owners became a

H.C. OF A.1990·1991.

'-.--'

1990,Nov. 7.

1991,May 28.

Mason CJ ..Brennan.Deane,

Dawson.Toohey,

Gaudron andMcHugh J1.

244 HIGH COURT [1990-1991.

H. C. OF A.1990-1991.

'-v---'

GALA

v.PRESTO)';.

defendant by election. Judge Dodds dismissed the action on theground that the joint illegal enterprise in which Preston and Galawere engaged prevented him from determining the appropriate dutyof care owed by Gala to Preston. The Full Court of the SupremeCourt (Connolly, McPherson and Williams 11.) allowed an appealby Preston (1). Gala, the owners and the insurer then appealed, byspecial leave, to the High Court.

P. A. Keane Q.C. and D. V C McMeekin, for the appellants,referred to Smith v. Jenkins (2); Jackson v. Harrison (3); Progressand Properties Ltd. v. Craft (4); Bondarenko v. Sommers (5);Godbolt v. Fittock (6); Cook v. Cook (7); and John v. FederalCommissioner of Taxation (8).

C E. K. Hampson Q.c. and P. L. Feely, for the respondent,referred to National Coal Board v. England (9); Ashton v.Turner (10); Henwood v. Municipal Tramways Trust (SA.) (11); andHillen v. ICI (Alkali) Ltd. (12).

Cur. adv. vult.

1991. May 28. The following written judgments were delivered:-MASON C.l., DEANE, GAUDRON AND McHUGH 11. The question

raised in this appeal is: what are the principles which govern theliability of the driver of a motor vehicle to a passenger in thatvehicle who is injured as a result of the careless driving of thevehicle, in the course of a joint enterprise that involves thecommission of a criminal offence, being the theft of the vehicle andits unlawful use contrary to s. 408A of The Criminal Code (Q.) ("theCode")? The question is one of fundamental importance and it callsfor a consideration of a number of decisions of this Court.

The factsShortly before midnight on 14 August 1984 the respondent (the

plaintiff at the trial), then aged nineteen, suffered injuries when the

(1) (1990) 1 Qd R. 170.(2) (1970) 119 C.L.R. 397.(3) (1978) 138 C.L.R. 438.(4) (1976) 135 C.L.R. 65!.(5) (1968) 69 S.R. (N.S.W.) 269.(6) (1963) 63 S.R. (N.S.W.) 617.(7) (1986) 162 C.L.R. 376.

(8) (1989) 166 C.L.R. 417, atpp. 438-439.

(9) (1954) A.C. 403.(10) [1981] Q.B. 137.(II) {1938) 60 C.L.R. 438.(12) [1934] 1 K.B. 455.

172 C.L.R.] OF AUSTRALIA. 245

motor vehicle in which he was a passenger veered off the road andstruck a tree. The vehicle was being driven by the first appellant(the first defendant at the trial). At the time of the accident therespondent, along with the first appellant and two other youths,Steven Burn and Ray Simms, who were passengers in the vehicle,was engaged in the unlawful use of the motor vehicle contrary tos. 408A of the Code.

The primary judge found that at about noon on 14 August 1984the four youths went to the Customs House Hotel, Maryborough,where they began to play pool and consume liquor. They had lunchat about 2.00 p.m. The respondent consumed approximately fortyscotches during the course of the afternoon and evening. Hiscompanions drank beer and consumed an equivalent amount ofalcohol to that consumed by the respondent. The primary judgefound that the probabilities were that the respondent and the firstappellant, at the time of the accident, had a blood alcoholconcentration in excess of 0.2 per cent.

At some stage during the evening, the party formed the intentionto "go up north" and to steal a motor vehicle for that purpose. Therespondent's evidence was that it had been his intention that he andSimms would visit the respondent's brother and some friends inGladstone, whilst the first appellant and Burn would continue northto Rockhampton where they planned to commit some breaking andentering offences. When the suggestion was put to him during thecourse of cross-examination, the respondent said that he assumedthat the journey north was to be something of a "joy ride".

Between 7.30 p.m. and 8.00 p.m., the four men discovered avehicle parked in town with the keys in the ignition. After filling thevehicle with fuel at Maryborough, the respondent drove the vehiclesome distance north of Gin Gin, whereupon the first appellant tookover the driving. The respondent climbed into the rear left-hand seatof the vehicle and, after approximately half an hour, fell asleep.Shortly before 11.50 p.m., just south of Gladstone, the vehicle leftthe Bruce Highway and struck a tree. Simms was killed in theaccident. The respondent suffered a number of injuries, the mostsignificant being the dislocation of his right hip.

The respondent and the first appellant both pleaded guilty to andwere convicted of unlawfully using a motor vehicle contrary tos. 408A of the Code and were each placed on twelve monthsprobation and ordered to pay restitution to the owner of the vehicle.The respondent was further ordered to perform unpaid communityservice.

H.C. OF A.1990·199J.

'-..--'

GALA

v.PRESTON.

Mason C.J.Deane J.

Gaudron J.McHugh J.

246 HIGH COURT [1990-1991.

H. C. OF A.1990-1991.~

GALA

v.PRESTON.

Mason C.J.Deane J.

Gaudron J.McHughJ.

The issues in the action

The respondent brought an action in the District Court againstthe first appellant, the second and third appellants (the owners ofthe vehicle) and the fourth appellant (the third party insurer anddefendant by election) for damages for personal injuries sustained asa result of the negligent driving of the first appellant. The fourthappellant alleged in its entry of appearance and defence, first, thatthe respondent was not entitled to recover damages for injury andloss resulting from the accident because the accident occurred in thecourse of the joint illegal activity of unlawfully using the vehicle inquestion. Secondly, it alleged that the respondent voluntarilyaccepted the risk of injury, by travelling in a vehicle which he knewto have been illegally taken and illegally used and which he couldhave expected would be driven in an unsafe manner and, further,by consuming alcohol to the extent that the respondent impaired hisown capacity to judge whether the first appellant was capable ofdriving the vehicle safely. Thirdly, it was alleged that the firstappellant did not breach any duty of care he owed to therespondent. Alternatively, it was alleged that, in travelling in avehicle which had been illegally taken and was being illegally used,in consuming alcohol to the extent referred to above and in failingto wear a seatbelt, the respondent contributed to his injuries.

The decision oj the primary judge

The primary judge was satisfied that the respondent was awarethat the amount of alcohol consumed by the participants in theenterprise took them well over the permitted blood alcohol level fordriving a motor vehicle and would result in them exhibitingobservable signs of intoxication. However, the judge went on tofind that an observer with a similar blood alcohol content wouldhave his ability to observe and appreciate the signs in anotherperson significantly impaired. Somewhat surprisingly, his Honourthen stated that he was not persuaded that the respondent knewand appreciated that the first appellant's ability to drive was soimpaired as to displace the ordinary standard of care owed by adriver to a passenger; nor did he consider that the respondentperceived and fully appreciated the existence of danger so as toaccept voluntarily the risk of the consequent injury. The learnedjudge concluded that, as the respondent's failure to appreciate therisk was due to his own consumption of alcohol and as he had failedto wear a seatbelt, the contributory negligence of the respondentshould be assessed at 60 per cent. These findings were notchallenged on appeal.


However, the primary judge considered the decisions in Smith v.Jenkins (13), Progress and Properties Ltd. v. Craft (14), Jackson v.Harrison (15) and Bondarenko v. Sommers (16) in relation to therights inter se of co-participants in a joint illegal enterprise and, inthe light of those cases, concluded that the joint illegal enterprise inwhich the parties were engaged prevented him from determining theappropriate duty of care owed by the first appellant to therespondent. Judgment was entered for the defendant by election.

The decision of the Full Court on appealOn appeal, the Full Court of the Supreme Court (Connolly,

McPherson and Williams 11.) reversed the decision of the primaryjudge, concluding that, on the facts of the case, the ordinary duty ofcare applied and that the first appellant was in breach of that dutyof care (17). Williams J. (with whom Connolly J. agreed)considered (18) the principle applicable to be that

"[s]pecial or exceptional circumstances affecting therelationship between the driver and passenger of a motorvehicle may take the case out of the ordinary class ofrelationship between such persons and put such people in arelationship in which either some duty of care (perhaps of alower standard) is owed or even into a situation where no dutyof care is owed at all."

Williams J. noted that the accident occurred some hours after thevehicle was stolen and some hundreds of kilometres from where ithad been stolen and that there was nothing to suggest that, at thematerial time, the vehicle was being driven in an attempt to avoidapprehension by the police. Accordingly, Williams J. consideredthat there were no circumstances which could be said to give rise tothe driving of the vehicle otherwise than in accordance with theordinary reasonable standard expected of an experienced, skilledand careful driver.

Similarly, McPherson J. considered that, in the circumstances ofthe case, the joint illegal enterprise of using the motor vehiclecontrary to s. 408A of the Code did not increase the risk of theensuing injury such that the injury could be said to be a"foreseeable consequence of the illegal enterprise or a hazardincidental to or inherent in its execution".

H. C. OF A.1990·1991.

'-r-'

GALA

v.PRESTON.

Mason C.J.Deane J.

Gaudron J.McHugh 1.

(13) (1970) 119 C.L.R. 397.(14) (1976) 135 C.L.R. 651.(15) (1978) 138 C.L.R. 438.

(16) (1968) 69 S.R. (N.S.W.) 269.(17) [1990]1 Qd R. 170.(18) [1990)1 Qd R., at p. 178.

248 HIGH COURT [1990-1991.

H. C. OF A.1990-1991.

'-,--'

GALA

V.

PRESTON.

Mason C.J.Deane J.

Gaudron J.McHugh J.

The case for the appellants

In this Court, the appellants submit that the present case isindistinguishable from the case of Smith v. Jenkins and oughttherefore to be decided in accordance with the principle for whichthat case is authority. Both cases, it is said, concern the negligentdriving of a motor vehicle by one of the participants in the unlawfuluse of the vehicle for the purpose of a "joy ride", the unlawfulactivity resulting in injury to another participant in the crime. Theappellants submit that the principle established by Smith v. Jenkinsis that, where the very act of which the plaintiff complains is thecriminal act in which both the plaintiff and defendant are jointlyengaged, no duty of care does or can arise between the driver andthe co-participant in the use of the vehicle. On the other hand, therespondent submits that the case is distinguishable from Smith v.Jenkins and, alternatively, that the decision in that case should beoverruled.

Illegality as a defence to an action in negligence

In Henwood v. Municipal Tramways Trust (SA.) (19), this Courtrejected unanimously the argument that a passenger in a tram hadno action in negligence against the tramway authority because heput his head out of the window of the tram in breach of a by-lawmade by the authority as a safety measure. The passenger, affectedby nausea, having put his head outside the window, was struck bytwo standards while the tram was in motion, the standards beingsituated seventeen inches from the side of the tram. The authoritywas held liable in negligence in that it had failed to constructbarriers to prevent passengers leaning out of the windows. Theaction of the passenger in breach of the by-law which exposed himto liability for a penalty under the by-law was not a defence to theaction. The proposition for which Henwood stands as authority isthat "t~ere is no rule denying to a person who is doing an unlawfulthing the protection of the general law imposing upon others dutiesof care for his safety", to repeat the words of Dixon andMcTiernan 11. (20).

That principle is, of course, subject to the qualification that astatutory provision which creates an offence may evince anintention to disentitle a person who sustains injury in committingthe offence from recovery in a civil action (21). This qualificationhas no relevance for the present case because it is not suggested thats. 408A manifests such an intention.

(19) (1938) 60 C.L.R. 438.(20) (1938) 60 C.L.R., at p. 462.

(21) (1938) 60 C.L.R., at p. 460.


Illegality as a defence in cases ofjoint illegal enterprise

However, Henwood was not a case in which the plaintiffsustained injury in the cOUrse of the commission by plaintiff anddefendant of a joint illegal enterprise. Whether a plaintiff in thatsituation could recover damages for negligence was the questionwhich arose for consideration in Smith v. Jenkins. The facts weresimilar to those in the present case. The plaintiff and the defendant,having assaulted and robbed the owner of a motor vehicle,unlawfully took the vehicle without the owner's consent. Theplaintiff, who was a passenger, was injured when the vehicle left theroad and collided with a tree due to the defendant's careless driving.The Court held unanimously that the plaintiff could not recover.Although the ratio of the decision is not altogether clear, it is besttreated as deciding that, in the circumstances, no relevant duty ofcare arose on the part of the defendant to the plaintiff by reason oftheir participation in a joint illegal enterprise. Kitto J. consideredthat the relevant principle was that persons who join in committingan illegal act which they know to be unlawful have no legal rightsinter se by reason of their respective participations in that act (22).Windeyer J. observed (23):

"If two or more persons participate in the commission of acrime, each takes the risk of the negligence of the other orothers in the actual performance of the criminal act. Thatformulation can be regarded as founded on the negation ofduty, or on some extension of the rule volenti non fit injuria,or simply on the refusal of the courts to aid wrongdoers. Howit be analyzed and explained matters not."

Earlier, his Honour rejected the public policy approach and statedthat the special relationship between the parties excluded theexistence of a duty of care (24). He referred to the principle that anaccomplice owed no duty of care to another accomplice in doing anact which was "a step in the execution of the common illegalpurpose" (25) and went on to say (26) that "[t]he question is whetherthe harm arose from the manner in which the criminal act wasdone." Barwick C.l. (27) and Owen J. (28) appear to have agreedwith that statement of principle, whereas Walsh J. (29) stated thatthe rule was one of public policy.

But it would be wrong to regard the case as authority for theproposition that in all circumstances the participation of plaintiff

H. C. OF A.1990-1991.

'--.-'

GALA

v.PRESTON.

Mason C.J.Deane J.

Gaudron J.McHugh J.

(22) (1970) 119 CL.R., at p. 403.(23) (1970) 119 CL.R., at p. 422.(24) (1970) 119 CL.R., at p. 418.(25) (1970) 119 CL.R., at p. 419.(26) (1970) 119 CL.R., at p. 421.

(27) (1970) 119 CL.R., at p. 400.(28) (1970) 119 CL.R., at pp. 425

426.(29) (1970) 119 CL.R., at pp. 433

434.

250 HIGH COURT [1990-1991.

H. C. OF A.1990·199l.

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GALA

V.

PRESTON.

Mason CJ.Deane J.

Gaudron J.McHugh J.

and defendant in a joint illegal enterprise will negate the existenceof a duty of care on the part of the defendant to the plaintiff, evenwhen the alleged breach of duty arises in the execution of thecriminal act. To take one example. The fact that a joint enterprise iscarried on illegally in breach of safety regulations requiring aparticular precaution to be taken should not preclude the existenceof a relevant common law duty of care on the part of oneparticipant to another unless circumstances of the parties'relationship, including the nature and incidents of the enterprise, aresuch as to make it unreasonable to fix a participant with a duty ofcare. There is no a priori reason why the illegality of a particularenterprise or activity should automatically negate the existence of aduty of care which might otherwise arise from the relationshipwhich subsists between the parties, especially if it be accepted thatthe decision in Smith v. Jenkins does not rest on public policy.

So much at least was established by the subsequent decision inProgress and Properties (30). The plaintiff was injured when a hoiston which he had entered for the purpose of doing work on thetwentieth floor of a building under construction crashed to theground. The hoist was designed for the carriage of materials, notpersons. A regulation made it an offence to ride on the hoist or topermit a person to do so. In the result both the plaintiff and theoperator of the hoist, an employee of the defendant, acted in breachof the regulation. The accident occurred when the operator's footslipped off the brake pedal, allowing the hoist platform to fall to theground. The plaintiff sued in negligence and for breach of statutoryduty not to lower any load at a speed exceeding 600 ft per minute.By majority (Stephen, Mason, Jacobs and Murphy 11., withBarwick C.J. dissenting), the Court held that the defence of illegalitycould not be sustained.

Jacobs J. (with whom the other Justices in the majority agreed)said (31):

"A duty of care arises out of the relationship of particularpersons one to another. An illegal activity adds a factor to therelationship which may either extinguish or modify the duty ofcare otherwise owed. A joint illegal activity may absolve theone party from the duty towards the other to perform theactivity with care for the safety of that other. That, it seems tome, is the effect of Smith v. Jenkins. Where there is a jointillegal activity the actual act of which the plaintiff in a civilaction may be complaining as done without care may itself be acriminal act of a kind in respect of which a court is notprepared to hear evidence for the purpose of establishing thestandard of care which was reasonable in the circumstances. A

(30) (1976) 135 c.L.R. 651. (31) (1976) 135 C.L.R., at p. 668.

172 C.L.R.) OF AUSTRALIA. 251

court will not hear evidence nor will it determine a standard ofcare owing by a safe blower to his accomplice in respect of theexplosive device."

His Honour went on to say (32) that the relation of the illegality tothe negligence complained of did not require an examination of anyspecial aspect of the relationship between the participants whichcould affect the standard of care, observing (33):

"Whether or not it was legal to ride on the hoist platform thesame standard of care in operating the hoist would be expectedof the operator, and the court would not be obliged to embarkon an inquiry whether the act of the operator was reasonable,having regard to the illegality of the enterprise."

As a further ground for rejecting the defence of illegality, hisHonour added that the defence was wholly inapplicable to thecircumstances of regulations designed to enforce a high specific dutyto ensure the safety of the participant in the illegal enterprise (34).

Again, in Jackson v. Harrison (35), the Court, by majority, didnot regard participation in an illegal enterprise as disabling. Thefacts of the case are closer to those of Smith v. Jenkins thanProgress and Properties. The plaintiff was injured when travellingas a passenger in the defendant's car as a result of the defendant'snegligent driving. Both parties' driving licences had been suspendedin consequence of convictions for traffic offences. Each was awareof the other's disqualification. Nonetheless they took the car on aweekend journey, agreeing to share the driving. Each committed theoffence of driving a motor vehicle without a licence. Three membersof the majority of four (Mason J., Jacobs J. and Aickin J.) appliedthe law as stated by Jacobs J. in Progress and Properties. Jacobs J.(with whom Aickin J. agreed) observed (36):

"A legal duty of care presupposes that a tribunal of fact canproperly establish a standard of care in order to determinewhether there has been a breach of the duty of care. If thecourts decline to permit the establishment of an appropriatestandard of care then it cannot be said that there is a duty ofcare."

His Honour went on to observe (37) that in accordance withHenwood it is necessary to consider whether, to use the words ofDixon and McTiernan JJ. in that case (38),

"it is part of the purpose of the law against which the plaintiffhas offended to disentitle a person doing the prohibited act

H. C. OF A.1990·) 991.

'-y-'

GALA

v.PRE5TO~.

Mason C.J.Deane J.

Gaudron J.McHugh J.

(32) (1976) 135 C.L.R., at p. 668.(33) (1976) 135 C.L.R., at pp. 668·

669.(34) (1976) 135 C.L.R., at p. 669.

(35) (1978) 138 C.L.R. 438.(36) (1978) 138 C.L.R., at p. 457.(37) (1978) 138 C.L.R., at p. 459.(38) (1938) 60 C.L.R., at p. 460.

252 HIGH COURT [1990-1991.

H. C. OF A.1990·1991.

'-,.--'

GALA

v.PRESTO~.

Mason C.J.Deane J.

Gaudron J.McHugh J.

from complaining of the other party's neglect or default,without which his own act would not have resulted in injury".

His Honour distinguished Smith v. Jenkins on the ground that itconcerned a relevant joint criminal enterprise of a serious kindbeginning with the theft of money, the car keys and the car itself.The criminal enterprise was such that it was not possible todetermine a standard of care for such a course of criminalactivity (39). However, his Honour conceded that the decisionmight not have been the same if the accident had occurred days,weeks or months later when the circumstances of the taking of thevehicle ceased to have any significant relationship to the manner inwhich the vehicle was being used. By way of contrast, the facts inJackson v. Harrison were such that the joint illegality had nobearing at all on the standard of care reasonably to be expected ofthe driver.

The majority reasoning in Progress and Properties and Jackson v.Harrison is inconsistent with the proposition that a defendant isunder no duty of care whenever he or she is engaged with a plaintiffin the commission of a joint illegal enterprise and the alleged breachof duty arises in the execution of the criminal act. There are twostrands to the majority reasoning. The first is that, in casesinvolving a joint illegal enterprise, it is necessary to examine therelation of the illegality to the negligence complained of with a viewto ascertaining whether it is possible or feasible for the court todetermine an appropriate standard of care. If it is impossible or notfeasible to do so, no duty of care arises. The second is that, in casesof illegality arising from infringement of statutory provisions whichare designed to promote safety, e.g., traffic laws and industrialsafety regulations, there is no reason why illegality of that kindshould negate the existence of a duty of care.

However, it is necessary to take account of developmentsaffecting the concept of the duty of care since Smith v. Jenkins,Progress and Properties and Jackson v. Harrison were decided.Commencing with Jaensch v. Coffey (40), this Court, in a series ofdecisions, has accepted that a relevant duty of care will arise underthe common law of negligence only in a case where the requirementof a relationship of proximity between the plaintiff and thedefendant has been satisfied: see Sutherland Shire Council v.Heyman (41); Stevens v. Brodribb Sawmilling Co. Pty. Ltd. (42);

(39) (1978) 138 C.L.R., at p. 460.(40) (1984) 155 C.L.R. 549.(41) (1985) 157 C.L.R. 424, at

pp. 461-462,506-507.

(42) (1986) 160 C.L.R. 16, atpp. 30, 50-52.


San Sebastian Pty. Ltd. v. The Minister (43); Cook v. Cook (44).The requirement of proximity constitutes the general determinantof the categories of case in which the common law of negligencerecognizes the existence of a duty to take reasonable care to avoid areasonably foreseeable and real risk of injury. In determiningwhether the requirement is satisfied in a particular category of casein a developing area of the law of negligence, the relevant factorswill include policy considerations. Where, as in the present case, theparties are involved in a joint criminal activity, those factors willinclude the appropriateness and feasibility of seeking to define thecontent of a relevant duty of care. Thus, it would border on thegrotesque for the courts to seek to define the content of a duty ofcare owed by one bank robber to another in blowing up a safewhich they were together seeking to rob. On the other hand, to takean extreme example the other way, it would be unjust and wrongfor the courts to deny the existence of the ordinary relationship ofproximity which exists between the driver of a motor vehicle and apassenger merely because the driver was, with the encouragementof the only passenger, momentarily driving in a traffic lane reservedfor the use of cars with three or more occupants.

An exemplification of the relationship of proximity whichprovides particular assistance in dealing with the problems that thiscase presents is to be found in Cook v. Cook. There, aninexperienced and unlicensed driver, the defendant, was invited bythe plaintiff to drive a car in which the plaintiff travelled as apassenger. The defendant, in seeking to avoid a parked vehicle,accelerated and lost control of the car so that it mounted thefootpath and crashed into a concrete pole, causing injury to theplaintiff. Mason, Wilson, Deane and Dawson n., in their jointjudgment, recognized that, where there is ordinarily a relationshipof proximity between driver and passenger, the standard of care isthat reasonably to be expected of an experienced, competent driver.Then the standard is objective and is not modified or extended bythe driving history or ability of the particular driver. Their Honourswent on to point out (45) that special and exceptional circumstances, such as those of that case, may transform the relationshipbetween a driver and a particular passenger into a special ordifferent class or category of relationship. It follows that the onus ofestablishing the existence of facts giving rise to a relationship ofsuch a special or different category under which it would be

H. C.OF A.1990-1991.

'---y---'

GALA

V.

PRESTO:".

Mason c.J.Deane J.

Gaudron J.McHugh J.

(43) (1986) 162 C.L.R. 340, atpp. 354-355.

(44) (1986) 162 C.L.R. 376, atpp. 381·382.

(45) (1986) 162 C.L.R., at pp. 383384.

254 HIGH COURT [1990-1991.

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GALA

V.

PRESTON.

Mason C.l.Deane J.

Gaudron l.McHugh l.

unreasonable to fix the duty of care owed by a driver by referenceto the ordinary standard of care lies on the party who asserts it (46).Likewise, the onus lies on the party who asserts that, by reason ofspecial and exceptional facts, the ordinary relationship of a drivertowards a passenger is transformed into one which lacks therequisite relationship of proximity to give rise to a relevant duty ofcare.

So, in the present case, it is a matter of examining the relationshipbetween the respondent and the first appellant with a view toascertaining whether there was a relationship of proximity such asto give rise to a relevant duty of care on the part of the firstappellant as driver of the motor vehicle to the respondent as hispassenger. The respondent does not contend that, if such a duty ofcare arose, the appropriate standard of care was other than theordinary standard of care to be expected of a driver to a passengerin the vehicle.

When attention is given to the circumstances of the present caseit is difficult to see how they can sustain a relationship of proximitywhich would generate a duty of care. The joint criminal activityinvolving the theft of the motor vehicle and its illegal use in thecourse of a spontaneously planned "joy ride" or adventure gave riseto the only relevant relationship between the parties and constitutedthe whole context of the accident. That criminal activity was, of itsnature, fraught with serious risks. The consumption by theparticipants, including the first appellant, of massive amounts ofalcohol for many hours prior to the accident would have affectedadversely the capacity of a driver to handle the motor vehiclecompetently. Despite the surprising conclusion of the primaryjudge, each of the parties to the enterprise must be taken to haveappreciated that he would be encountering serious risks in travellingin the stolen vehicle when it was being driven by persons who hadbeen drinking heavily and when it could well be the subject of areport to the police leading possibly to their pursuit andJor theirarrest. In the special and exceptional circumstances that prevailed,the participants could not have had any reasonable basis forexpecting that a driver of the vehicle would drive it according toordinary standards of competence and care.

In this situation the parties were not in a relationship ofproximity to each other such that the first appellant, as the driver ofthe vehicle, had a relevant duty of care to the respondent, as apassenger in the vehicle. In the circumstances just outlined, it wouldnot be possible or feasible for a court to determine what was an

(46) (1986) 162 C.L.R., at p. 387.


appropriate standard of care to be expected of the first appellant asthe driver of the vehicle. To conclude that he should have observedthe ordinary standard of care to be expected of a competent driverwould be to disregard the actual relationship between the parties aswe have described it. To seek to define a more limited duty of careby reference to the exigencies of the particular case would involve aweighing and adjusting of the conflicting demands of the jointcriminal activity and the safety of the participants in which it wouldbe neither appropriate nor feasible for the courts to engage.

In the result the appeal should be allowed with costs, the ordersof the Full Court of the Supreme Court should be set aside and, inlieu thereof, the appeal to that Court should be dismissed with costs.

BRENNAN J. The plaintiff (the respondent) was a passenger in amotor vehicle being driven by the first defendant (the appellantGala) at high speed northbound along a straight section of theBruce Highway towards Gladstone when, shortly before 11.50 p.m.on 14 August 1984, it left the road, collided with a tree and broke intwo. The plaintiff sued the defendants (the appellants) in the DistrictCourt in Gladstone for damages in respect of personal injuriessuffered by him in the accident which, he alleged, was the result ofthe first defendant's negligence. The plaintiff and the first defendantwere two of a group of four young men travelling in the vehiclewho had unlawfully taken the vehicle in Maryborough earlier thatnight, probably between 7.30 and 8.00 p.m., intending to drive it toGladstone and further north to Rockhampton. At the time of theaccident, the four young men were parties to the unlawful use ofthe vehicle contrary to the provisions of s. 408A of The CriminalCode (Q.).

In the District Court Judge Dodds, finding that the occupants ofthe car were engaged in a joint unlawful use of the vehicle, held thecase to be of the same kind as Smith v. Jenkins (47) which,according to the explanation of that case proffered by Jacobs J. inJackson v. Harrison (48), was a case in which a standard of carecould not be determined in respect of the joint criminal enterprise ofunlawfully using a motor vehicle. Judge Dodds said that he couldnot determine an appropriate standard of care and he enteredjudgment for the defendants. On appeal the Full Court of theSupreme Court of Queensland held that a standard of care could be

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Gaudron J.McHugh J.

(47) (1970) 119 C.L.R. 397. (48) (1978) 138 C.L.R. 438, atp.460.

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determined (49). Williams J., with whom Connolly J. agreed,said (50):

"The incident immediately causing the injury to theappellant, and the acts alleged to constitute the negligentdriving by the respondent Gala, occurred some hours after thevehicle was stolen, and some hundreds of kilometres northalong the highway from where it had been stolen. There isnothing to suggest that at the material time the youths in thecar were attempting to avoid capture by the police and hadeither expressly or impliedly by conduct become parties to anillegal venture which necessitated the vehicle being drivenotherwise than in accordance with the ordinary reasonablestandard expected of an experienced, skilled and careful driver.

It follows, in my respectful view that the learned trial judgeerred in concluding that he could not determine an appropriateduty of care. The ordinary duty of care applied and the onlyreasonable inference open from the facts is that the respondentGala so drove at the material time that he breached that dutyof care. I would therefore find that the respondent Gala wasnegligent."

McPherson J. observed (51):"there is nothing in the evidence that suggests that the jointillegal enterprise of using the motor vehicle contrary to s. 408Aincreased the risk of injury like that sustained by the plaintiffor by any of the others involved. The accident that occurredwas not a foreseeable consequence of the illegal enterprise or ahazard incidental to or inherent in its execution."

The Full Court gave judgment for the plaintiff in the sum of$3,091. 20 being the damages assessed by Judge Dodds adjusted forinterest and reduced by 60 per cent for the plaintiff's contributorynegligence. The appeal to this Court raises for consideration onceagain the principle which governs a plaintiff's entitlement to recoverdamages for negligence when the act or omission which causes thedamage in suit occurs in the course of the commission of a criminaloffence to which the plaintiff and defendant are parties.

In a series of cases in this Court the problem of liability innegligence to a plaintiff committing or being party to thecommission of a criminal offence has been considered: Henwood v.Municipal Tramways Trust (S.A.) (52); Smith v. Jenkins; Progressand Properties Ltd. v. Craft (53); Jackson v. Harrison. In thesecases, the basis for denying to a plaintiff a right to recover has beenstated in different ways. On one approach, it is possible to determinethis case without considering those differences, for the facts of the

(49) [1990] I Qd R. 170.(50) (1990)1 Qd R., at p. 179.(51) (1990) I Qd R., at p. 172.

(52) (1938) 60 C.L.R. 438.(53) (1976) 135 C.L.R. 651.


present case are similar to the facts in Smith v. Jenkins. AlthoughSmith v. Jenkins was distinguished from Progress and PropertiesLtd. v. Craft and Jackson v. Harrison by the majorities in thosecases, the actual decision in Smith v. Jenkins was not overruled.There are some differences in incidental facts between this case andSmith v. Jenkins, but the two cases are indistinguishable in theirmaterial facts. In particular, in both cases the plaintiff sustained hisinjuries in an accident as the result of the defendant's carelessness incontrolling a motor vehicle that the plaintiff and the defendant wereunlawfully using and, in both cases, the journey which followedimmediately on the unlawful taking of the vehicle had beencontemplated when the vehicle was taken. However, to determinethis case on merely a factual correspondence with Smith v. Jenkinswould leave unresolved the question whether there is any and whatprinciple by which to determine the claim of a plaintiff who is aparty to a criminal offence and who is injured by the carelessness ofa co-offender in the course of committing the offence. Somereconsideration of the different statements of the basis for denyingrecovery is called for and a statement or restatement of the relevantprinciple must be attempted. To undertake that task, I wouldcommence by recalling some basic propositions which inform thearea of the law relevant to this case.

It is trite law that in every tort of negligence there are a duty ofcare owed by the defendant to the plaintiff, a breach of that duty bythe defendant and consequent damage suffered by the plaintiff:Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co.Ltd. (The "Wagon Mound" [No.1)) (54). These elements can beexpanded by five propositions:

1. A defendant's liability in negligence relates to the damagewhich the plaintiff has actually suffered, and to no other: The"Wagon Mound" [No.1) (54); Sutherland Shire Council v.Heyman (55).

2. A defendant's liability for that damage arises from an act doneor an omission made by the defendant (the relevant act or omission)which is a cause of the damage suffered: Chapman v. Hearse (56).However, an omission cannot be said to be a cause of damageunless the defendant was under a duty to act to avoid or prevent thedamage and the omission is a breach of that duty: East Suffolk

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(54) [1961] A.C. 388, at p. 425.(55) (1985) 157 C.L.R. 424, at

pp. 486-487.

(56) (1961) 106 C.L.R. 112, atp. 122.

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Rivers Catchment Board v. Kent (57); Jaensch v. Coffey (58);Sutherland Shire Council v. Heyman (59).

3. A defendant's liability for damage does not extend to damagecaused by the relevant act or omission unless the possibility ofcausing that damage or damage of the same kind was reasonablyforeseeable at the time when the relevant act was done or therelevant omission made: Bolton v. Stone (60); Hughes v. LordAdvocate (61); Mount Isa Mines Ltd. v. Pusey (62); Jaensch v.Coffey (63).

4. A defendant is liable if, and because, a reasonable person in thedefendant's position foreseeing the possibility of causing the damagesuffered or damage of the same kind would not have done therelevant act or made the relevant omission: Blyth v. BirminghamWaterworks Co. (64); Heaven v. Pender (65); Donoghue v.Stevenson (66); Fardon v. Harcourt-Rivington (67); Bolton v.Stone (68). That is the foundation not only of every duty of care intorts of negligence but of the standard of care required to dischargethe duty: Vaughan v. Menlove (69). The standard of care is fixed byreference to the steps which the hypothetical reasonable personwould take to avoid or prevent the possibility of the occurrence ofthe foreseeable damage: Glasgow Corporation v. Muir (70); WyongShire Council v. Shirt (71); Jaensch v. Coffey (63).

5. A legal duty does not always arise when the facts show thatthe kind of damage suffered by the plaintiff was reasonablyforeseeable by the defendant. Elements in addition to reasonableforeseeability of damage are required to give rise to a duty of care toavoid or prevent damage other than physical damage to the personor to the property of the plaintiff; similarly, additional elements arerequired where the act or omission of the defendant amounts to arepresentation to the plaintiff on which the plaintiff relies in doingan act or abstaining from acting whereby the relevant damage iscaused: Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. (72);

(57) [1941] A.C. 74.(58) (1984) 155 C.L.R. 549, at

p.578.(59) (1985) 157 C.L.R., at pp. 476-

481.(60) [1951] A.C. 850, at p. 858.(61) [1963] A.C. 837.(62) (1970) 125 C.L.R. 383, at

pp. 390,392·393,401-403,413·414.

(63) (1984) 155 C.L.R., at pp. 562·563.

(64) (1856) 11 Ex. 781 [156E.R. 1047J.

(65) (1883) 11 Q.E.D. 503, atp.509.

(66) [l932J A.C. 562, at pp. 580581.

(67) (1932) 146L.T. 391,atpp. 392, 393.

(68) [1951J A.C., at pp. 866·869.(69) (1837) 3 Bing. (N.C.) 468, at

p. 475 [132 E.R. 490, atp.493].

(70) [1943] A.C. 448, at p. 457.(71) (1980) 146 C.L.R. 40, at p. 45.(72) [1964] A.C. 465.


Shaddock & Associates Pty. Ltd. v. Parramatta City Council[No. 1) (73); Mutual Life & Citizens' Assurance Co. Ltd. v.Evatt (74); Jaensch v. Coffey (75); San Sebastian Pty. Ltd. v. TheMinister (76). Again, there may be special features of the circumstances in which the relationship between the plaintiff and thedefendant exists which preclude the arising of a duty of care ormodify the standard of care otherwise required to discharge theduty: Rootes v. Shelton (77); Insurance Commissioner v. Joyce (78);Cook v. Cook (79).

Ordinarily, where the plaintiff's damage consists in physicalinjury to person or property caused by an act or omission of thedefendant without the intervention of any other person - thearchetypal category of negligence with which Donoghue v.Stevenson was concerned - no more is required to establish arelationship giving rise to a duty of care than that a reasonableperson in the defendant's position would foresee the possibility ofdamage of that kind. No more is needed to establish the standard ofcare than that a reasonable person in the defendant's position,foreseeing the possibility of damage of that kind, would not havedone the act or made the omission which caused the injury sufferedby the plaintiff. As I read Lord Atkin's speech in Donoghue v.Stevenson (80), foreseeability is what he had in mind when he usedthe term "proximity". He did not intend that term to be confined tophysical proximity but to embrace "such close and direct relationsthat the act complained of directly affects a person whom theperson alleged to be bound to take care would know would bedirectly affected by his careless act".

In recent times, as new categories of negligence have beenrecognized, the term "proximity" has been used frequently todescribe any relationship out of which a duty of care arises whetheror not reasonable foreseeability is the only or sufficient criterion forthe existence of the relevant duty of care. In the present case, themajority seek to determine by reference to this extended notion ofproximity whether the facts bring the case within one of "thecategories of case in which the common law of negligencerecognizes the existence of a duty to take reasonable care to avoid areasonably foreseeable and real risk of injury". I am unable to adopt

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(73) (1981) 150 C.L.R. 225, atpp. 230-231.

(74) (1968) 122 C.L.R. 556, atpp. 568-570.

(75) (1984) 155 C.L.R., at pp. 574576.

(76) (1986) 162 C.L.R. 340, atp.369.

(77) (1967) 116 C.L.R. 383, atp.389.

(78) (1948) 77 C.L.R. 39, at p. 59.(79) (1986) 162 C.L.R. 376, at

pp. 391-394.(80) [1932] A.c., at pp. 580-581.

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this approach. Use of the term "proximity" in its extended sense canbe accepted only if it is steadily kept in mind that the term maythen comprehend either elements additional to reasonableforeseeability which are essential to the existence of a duty in a newcategory of negligence or the elements in a relationship which,despite reasonable foreseeability, would preclude the arising of alegal duty of care. (By a new category of negligence I mean acategory where the defendant's act or omission is not the directcause of physical injury to the plaintiff's person or property.)Moreover, "proximity" in the extended sense may comprehend theeffect of a statute giving a particular character to a relationship,whereas the duty of care relevant to the archetypal category ofnegligence is deduced from all the factual cire '1stances whichconstitute the relationship of the plaintiff and the ..efendant: Grantv. Australian Knitting Mills Ltd. (81). "Proximity" in its extendedsense may also comprehend "policy considerations". In the presentcase the majority hold that policy considerations "include theappropriateness and feasibility of seeking to define the content of arelevant duty of care".

The amorphous character of the extended notion of proximitywas perceived by Lord Bridge of Harwich in Caparo Industries Pic.v. Dickman (82):

"What emerges is that, in addition to the foreseeability ofdamage, necessary ingredients in any situation giving rise to aduty of care are that there should exist between the partyowing the duty and the party to whom it is owed a relationshipcharacterized by the law as one of 'proximity' or'neighbourhood' and that the situation should be one in whichthe court considers it fair, just and reasonable that the lawshould impose a duty of a given scope upon the one party forthe benefit of the other. But ... the concepts of proximity andfairness embodied in these additional ingredients are notsusceptible of any such precise definition as would be necessaryto give them utility as practical tests, but amount in effect tolittle more than convenient labels to attach to the features ofdifferent specific situations which, on a detailed examination ofall the circumstances, the law recognizes pragmatically asgiving rise to a duty of care of a given scope. Whilstrecognizing, of course, the importance of the underlyinggeneral principles common to the whole field of negligence, Ithink the law has now moved in the direction of attachinggreater significance to the more traditional categorization ofdistinct and recognizable situations as guides to the existence,the scope and the limits of the varied duties of care which thelaw imposes."

(81) (1935) 54 C.L.R. 49, at p. 64;[1936] A.c. 85, at p. 103.

(82) (1990)2 A.C. 605, at pp. 617618.


There are logical and jurisprudential objections to theemployment of "proximity" in its extended sense as a criterion bywhich to determine whether a duty of care exists in a new categoryof negligence or to determine whether a relationship is such that,despite reasonable foreseeability, no duty of care has arisen. If theterm be used as a description of a relationship out of which a dutyof care does arise, it would be a sophism to invoke the term as acriterion to determine whether a duty of care arises. In this case, forexample, to say of the relationship between the plaintiff and thefirst defendant that it was not a proximate relationship andtherefore no duty of care was owed would be to state as aconclusion what must be demonstrated to justify the premiss thatthe relationship was not a proximate one.

On the other hand, if "proximity" in the extended sense beinvoked primarily as a criterion of the existence of a duty of care, itis too amorphous a concept to serve the purpose. I have elsewherestated my reasons for rejecting the notion of proximity in itsextended sense as a working criterion of liability (San Sebastian (83);Hawkins v. Clayton (84)). This case presents starkly the problem ofthe inadequacy of content of the notion.

Here the parties are driver and passenger in a car. There are fewmore familiar examples of a proximate relationship. Every factrequired to establish the tort of negligence in the ordinary driverand passenger case appears and, in addition, the fact that theplaintiff suffered his injuries in the course of an unlawful use of themotor vehicle in which he was participating. If, in this case, therelationship is to be held not to give rise to a duty of care, it must beon account of some consideration which can, and should, beidentified. One may say that that consideration denies to therelationship of driver and passenger the character of proximity andthat accordingly no duty of care arises. Or one may say directly thatthat consideration precludes a duty of care from arising. Whetherthe proposition be put in one way or the other, "proximity" issurplus to the reasoning. But what is impermissible, in my respectfulview, is to employ "proximity" in some extended but undefinedsense as the reason why a duty of care, prima facie arising on factswhich establish reasonable foreseeability, should be denied. Better toidentify the consideration which negates the duty of care thansimply to assert an absence of proximity.

Uncertainty of content was recognized as a defect in LordWilberforce's "second stage" of the test of liability which he

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(83) (1986) 162 C.L.R., at pp. 367369.

(84) (1988) 164 C.L.R. 539, atpp. 555-556.

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expressed in a notable passage in his speech in Anns v. MertonLondon Borough Council (85). It will be remembered that LordWilberforce's first stage was "proximity or neighbourhood suchthat, in the reasonable contemplation of the [defendant), carelessness on his part may be likely to cause damage to the [plaintiffl" a stage which, at least on one view, focuses on foreseeability. Therelevant part of the second stage was "whether there are anyconsiderations which ought to negative, or to reduce or limit thescope of the duty". To use the extended notion of proximity as thelimiting consideration to determine whether a duty of care arises onfacts establishing reasonable foreseeability seems to me, withrespect, to reintroduce the approach of Lord Wilberforce which wasrejected by this Court in Sutherland Shire Council v. Heyman andby the House of Lords in Murphy v. Brentwood DistrictCouncil (86). In my respectful opinion, this Court should notpropound as a criterion an extended notion of proximity whichwould reintroduce the formlessness of Lord Wilberforce's secondstage test into the law of negligence where development is needed.

By rejecting the extended notion of proximity as a criterion forascertaining the existence of a duty of care, I should not be taken toreject the desirability of developing the law of negligence. Thepurpose of judicial development of legal principle is to keep the lawin good repair as an instrument of resolving disputes according tojustice as it is understood in contemporary society, subject tostatute. The law must keep an order and form which admit ofpractical application, for justice requires both consistency indecisions and discrimination between cases on bases that can bearticulated and applied. Principles of law must be adequate toresolve disputes that arise in contemporary society and, so far aspracticable, they must be sufficiently precise to be applied withoutreference to a court. The purpose of judicial development of legalprinciple is not to espouse a broad theory which, unembarrassed byprecise content, can be postulated as an explanation of diversecases. Were such a theory to be propounded as a legal principle,each judge would be free to give it such content as he or shechooses and the law would become an invitation to litigate, not aninstrument of dispute resolution. In a society where values changeand where the relationships affected by law become increasinglycomplex, judicial development of the law is a duty of the couns more especially when legislative law reform languishes. But thetechnique of development will be inadequate if, at the end of the

(85) [1978] A.C. 728, at pp. 751752.

(86) [1991] 1 A.C. 398.


day, a legal principle is crafted in words which do not reflect thedegree of precision of which the subject matter admits so that theprinciple is left to derive its content from actual decisions in amultitude of cases. The law is not developed by making workingprinciples obsolete without providing other working principles insubstitution.

In this case, if it were not for the joint criminal activity of thefour young men who were unlawfully using the vehicle, therewould be no doubt but that the first defendant as driver owed aduty of care to the plaintiff as passenger. If it were not for that jointcriminal activity, no factors other than reasonable foreseeabilitywould have been material to the ascertainment of a duty of care.Thus, in the Full Court, where their Honours took the view thatthe initial taking of the car had receded into history and was notmaterial to the assessment of the standard of care which the driverwas bound to exercise in controlling the vehicle, the first defendantwas held to owe the ordinary duty of care to the plaintiff. Thefactor which calls for consideration is simply the illegal use of thevehicle at the time of the accident and the joint participation of theplaintiff and the first defendant in that use.

If this factor be fatal to the plaintiff's remedy in damages, theplaintiff's lack of remedy may flow from an absence of a duty ofcare or from some principle, over and above the law of negligence,which operates to preclude the court from granting a remedy on anacknowledged cause of action. It can be taken as settled that, whena plaintiff lacks a remedy in cases of the present kind, the law hasdenied the existence of a duty of care: Smith v. Jenkins (87);Progress and Properties Ltd. v. Craft (88); Jackson v. Harrison (89).That being so, the effect of the relevant legal principle, when itapplies, must be that a defendant, even though he can reasonablyforesee the possibility that a plaintiff will suffer damage, does notowe the plaintiff who is his joint participant in the commission ofan offence a duty of care in the doing of the act which causes theplaintiff's damage or in the making of an omission which would beheld to cause the plaintiff's damage were it not for his participationwith the defendant in the commission of the offence.

The critical question, of course, is: what is the legal principlewhich sterilizes a duty of care that would arise on the facts were itnot for the joint participation in the commission of an offence?Leaving aside the notion of proximity in the extended sense, the

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(87) (1970) 119 C.L.R., at pp. 400,403,419,425.

(88) (1976) 135 C.L.R., at pp. 656,668.

(89) (1978) 138 C.L.R., at pp. 443,457.

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approaches taken in this Court in past cases can be subsumed underone or other of three headings: illegal acts, statutory intent andrefusal to hear evidence.

Illegal actsSmith v. Jenkins was a case of joint unlawful use of a motor

vehicle by a plaintiff passenger and a defendant driver in which theinjured plaintiff failed to establish a duty of care in respect of thedefendant's driving of the vehicle. As I read the judgments ofBarwick C.l., Windeyer and Owen 11., their Honours agreed uponthe principle "that the joint participation in the commission of theoffence in that case precluded either of the participants fromrecovering from the other damages for injuries received in theperformance of the offence". That statement of principle, extractedfrom the judgment of Barwick C.l. in Jackson v. Harrison (90),appears to be supported by the judgments in Smith v. Jenkinsdelivered by Barwick C.l. (9\), Windeyer l. (92), Owen l. (93) and,perhaps, by Kitto l. (94). Although Mason l. in Jackson v.Harrison (95) asserted that Smith v. Jenkins did not decide "that theparticipants in a joint illegal enterprise owe no duty of care to eachother", that was not precisely the proposition which Barwick C.l.sought to advance in Jackson v. Harrison. The proposition waslimited, as it had to be, to the absence of a duty of care with respectto the conduct which caused the damage in suit, being conduct "inthe performance of the offence" (90) or, to use the language ofWindeyer l., "in the actual performance of the criminal act". Solimited, I read the effect of the judgments in Smith v. Jenkins in theway in which Barwick C.J. stated it.

Barwick C.l., in dissent, adhered to this principle in Progress andProperties Ltd. v. Craft (96) and in Jackson v. Harrison (where,however, his Honour related the principle to an act "in some wayconnected with the commission of the offence" (97)). In the lattercase, his Honour held the principle to apply when the offence iscreated by regulation as well as by Act of Parliament and tooffences created by industrial safety laws (98) though he hadrecognized in Progress and Properties Ltd. v. Craft (99) that theapplication of the principle to offences created for the protection ofworkmen "presents features of harshness which are not readily

(90) (1978) 138 C.L.R., at p. 442.(91) (1970) 119 C.L.R., at p. 400.(92) (1978) 138 C.L.R., at pp. 421-

422.(93) (1978) 138 C.,L.R., at p. 425.(94) (1978) 138 C.L.R., at p. 403.

(95) (1978) 138 C.L.R., at p. 453.(96) (1976) 135 C.L.R., p. 656.(97) (1978) 138 C.L.R., at p. 446.(98) (1978) 138 C.L.R., at pp. 444·

448,450.(99) (1976) 135 C.L.R., at p. 658.


acceptable in the present-day world". Significantly, in Jackson v.Harrison (1) his Honour allowed that "it must be conceded thatthere are offences to which the principle does not apply" but noverbal formula could be devised to exclude any offence punishableby fine or imprisonment. In Smith v. Jenkins Windeyer J. foundthat the criteria advanced in argument were unsatisfactory todistinguish between "criminality in its stricter and more limitedsense" and other criminality (2). And Walsh J. held the view (3) thatthere is no "single rule by which, in all cases, the question raised bya plaintiff's commission of an illegal act, or his participation in it, isto be answered."

In Smith v. Jenkins, the Court advanced no qualification to theprinciple therein stated. Given the unqualified form in which thatprinciple was stated, its application by Barwick C.J. in the latercases is, to my mind, logically compelling and I am unable to seelogical grounds for distinguishing Progress and Properties v. Craftand Jackson v. Harrison from Smith v. Jenkins. However that maybe, as an unqualified application of the principle in Smith v. Jenkinswould deny a remedy even when the offence is of minimalimportance, the principle has attracted the criticism levelled againstit by Mason J. in Jackson v. Harrison (4) that it is "too Draconianto command acceptance".

Statutory intentIn Henwood v. Municipal Tramways Trust (S.A.), where a

passenger, being sick and leaning out of a tram, was killed bystriking his head on posts which were too close to the tram, hisparents recovered damages against the tramway authority despitethe deceased's breach of a by-law forbidding leaning out of a tram.Dixon and McTiernan 11. (5) construed the by-law as imposing apenalty but not as intending to affect the liability of the authorityarising from the propinquity of the posts to the tram track and thelack of suitable guard rails on the tram. Although in Jackson v.Harrison (6) Mason J. thought that the principle of Smith v. Jenkinsas enunciated by Barwick c.J. was "at variance with the philosophyunderlying Henwood v. Municipal Tramways Trust (SA.)", the twocases were, as Barwick c.J. was surely right to point out (7), "in a

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(I) (1978) 138 C.L.R., at pp. 451·452.

(2) (1970) 119 C.L.R., at pp. 423424.

(3) (1970) 119 C.L.R., at p. 427.(4) (1978) 138 C.L.R., at pp. 453,

455.

(5) (1938) 60 C.L.R., at pp. 464465.

(6) (1978) 138 C.L.R., at p. 452.(7) (1978) 138 C.L.R., at pp. 446

447.

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different field of discourse". In Henwood v. Municipal TramwaysTrust (S.A.), the defendant was under an acknowledged duty of careto its passengers and the question was simply whether a breach ofthe by-law by the deceased which was a contributing cause of hisdeath denied the remedy to which the plaintiffs were otherwiseentitled by reason of the defendant's conduct; in Smith v. Jenkins,the question was whether a duty of care is owed in respect ofconduct in which the plaintiff was a criminal participant. In theformer class of case, what is relevant is the intent of the statute todeny a civil remedy in damages for which the defendant is liable byreason of his conduct; in the latter, what is relevant to the existenceof a duty of care is the set of circumstances (including the conductof the respective parties) out of which the alleged duty is said toarise. A statute creating an offence could conceivably provide that aplaintiff injured in the course of a joint commission of the offenceby the carelessness of his co-offender should or should not have aremedy in damages, but the legislature does not usually tum itsmind to the civil claims of co-offenders inter se. It is difficult to seehow an intent of that kind could properly be imputed to a statutewhich simply creates an offence or defines the parties to an offence.

Although statutory intent offers no satisfactory basis forresolving civil claims between co-offenders arising out of carelessness in the commission of offences, the harshness of anundiscriminating application of the principle in Smith v. Jenkinsneeds to be relieved. It is desirable, if possible, to postulate a groundof distinction between criminal conduct in respect of which no dutyof care between co-offenders can arise and criminal conduct inrespect of which a duty of care between co-offenders can arise. Thejudgments of the majorities in Progress and Properties v. Craft andJackson v. Harrison sought to make such a distinction but, as weshall see, the basis of the distinction was not identified.

Refusal to hear evidenceIn Bondarenko v. Sommers (8), Jacobs J.A., then sitting in the

Court of Appeal of New South Wales, pointed out that "it is oftenthe criminal relationship between the plaintiff and the defendantwhich is the starting point in the inquiry whether the crime bars theplaintiff from recovery for the defendant's breach of duty of care."Holding that there must be a relation between the criminal act andthe act of negligence complained of, his Honour said (9):

(8) (1968) 69 S.R. (N.S.W.) 269, atp.276.

(9) (1968) 69 S.R. (N.S.W.), atp.275.

172 c.L.R.] OF AUSTRALIA. 267

"If, to use the language of Latham c.J. in Henwood's case, theperson injured by want of care is a burglar on his way to aprofessional engagement, the fact that he is a burglar has norelation causally or otherwise to the injury to him in a motoraccident on the highway. On the other hand, if the burglar inthe act of breaking in is so negligent that he injures hisaccomplice, the accomplice cannot in my view sue fornegligence, because the actual act of which he would becomplaining as done without care would itself be a criminal actof a kind in respect of which a court would not hear evidencefor the purpose of establishing the particular standard of carewhich would be expected in the circumstances."

In Progress and Properties Ltd. v. Craft (10), his Honour, sittingin this Court and speaking for the majority, said:

"A joint illegal activity may absolve the one party from theduty towards the other to perform the activity with care for thesafety of that other. That, it seems to me, is the effect of Smithv. Jenkins. Where there is a joint illegal activity the actual actof which the plaintiff in a civil action may be complaining asdone without care may itself be a criminal act of a kind inrespect of which a court is not prepared to hear evidence forthe purpose of establishing the standard of care which wasreasonable in the circumstances. A court will not hear evidencenor will it determine a standard of care owing by a safe blowerto his accomplice in respect of the explosive device."

And in Jackson v. Harrison, his Honour (with the concurrence ofAickin J.) adhered to what he had said in the earlier cases. Hesaid (II):

"If the courts decline to permit the establishment of anappropriate standard of care then it cannot be said that there isa duty of care.

Before the courts will say that the appropriate standard ofcare is not permitted to be established there must be such arelationship between the act of negligence and the nature ofthe illegal activity that a standard of care owed in theparticular circumstances could only be determined by bringinginto consideration the nature of the activity in which theparties were engaged. The two safe blowers provide thesimplest illustration. What exigencies of the occasion would thetribunal take into account in determining the standard of careowed? That the burglar alarm had already sounded? That thepolice were known to be on their way? That by reason of thefurtive occasion itself a speed of action was required whichmade it inappropriate to apply to the defendant a standard ofcare which in lawful circumstances would be appropriate? Thecourts will not engage in this invidious inquiry. The reason isno doubt based on public policy. If, then, no standard of care

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(10) (1976) 135 C.L.R., at p. 668. (11) (1978) 138 C.L.R., at pp. 457458.

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can legally be determined, it cannot be said that there is anyduty of care."

His Honour added, in accordance with Henwood's Case as he sawit, that, if the purpose of the law creating a statutory offence is notexpressed to disentitle a person doing the prohibited act fromcomplaining of the other party's neglect or default, that purpose canbe inferred "by taking account of the same factors as I havedescribed in respect of the relation between the illegal activity andthe act of negligence complained of" (12).

In Jackson v. Harrison (13) Mason J. considered the law to havebeen stated correctly by Jacobs J. in Progress and Properties Ltd. v.Craft, though Mason J.'s formulation of the relevant principle wasnot identical with the formulation by Jacobs J.:

"A plaintiff will fail when the joint illegal enterprise in whichhe and the defendant are engaged is such that the court cannotdetermine the particular standard of care to be observed."(Emphasis added.)

This criterion, in his Honour's view, mitigated the harshness of theSmith v. Jenkins principle. He said (14):

"If a joint participant in an illegal enterprise is to be deniedrelief against a co-participant for injury sustained in thatenterprise, the denial of relief should be related not to theillegal character of the activity but rather to the character andincidents of the enterprise and to the hazards which arenecessarily inherent in its execution. A more secure foundationfor denying relief, though more limited in its application - andfor that reason fairer in its operation - is to say that theplaintiff must fail when the character of the enterprise in whichthe parties are engaged is such that it is impossible for the courtto determine the standard of care which is appropriate to beobserved. The detonation of an explosive device is a case of thiskind. But the driving of a motor vehicle by an unlicensed anddisqualified driver, so long as it does not entail an agreement todrive the car recklessly on the highway (see Bondarenko v.Sommers), stands in a somewhat different position."

The legal principle which underlies the approach of the majoritiesin Progress and Properties Ltd. v. Craft and Jackson v. Harrison is,if I may respectfully say so, not easy to discern. What is the rulewhich leads a court to refuse to hear relevant evidence or whichprecludes it from hearing such evidence? Bearing in mind that acommon law duty of care in the Donoghue v. Stevenson categoryarises from the facts of a case, on what basis is a plaintiff who seeksa remedy for breach of an alleged duty of care to be shut out from

(12) (1978) 138 C.L.R., at p. 459.(13) (1978) 138 C.L.R., at p. 456.

(14) (1978) 138 C.L.R., at pp. 455456.


adducing the evidence to establish the duty? And, once the facts areproved, all that remains for the court to do in determining thestandard of care is to apply community standards - the standardsof a hypothetical reasonable person in the defendant's position. AsWalsh J. pointed out in Smith v. Jenkins (15), the reception ofevidence of criminal conduct is no affront to the dignity of a court.Indeed, a reference to Cook v. Cook, where the plaintiff was a jointparticipant in the unlicensed driver's illegal conduct (though thequestion of illegality was not raised as an issue and where the Courtomitted to consider the question), shows that there was no obstaclein the way of hearing evidence bearing on the duty of care and thestandard required to discharge it. Nor did the Full Court in thepresent case find any such obstacle. Even if one takes theillustration of the safe-blowing burglars, it is not hard to see that, onany standard, it is careless for the burglar with the plunger todetonate the charge while the other is attaching the gelignite to thesafe. A standard of care can be determined, albeit the standard isthat of the reasonable safe-blower and is attenuated by theexigencies of the crime or, as in the case of Cook v. Cook, thestandard is that of the reasonable inexperienced and unlicenseddriver.

Moreover, the proposition that the court will not or cannot hearevidence to establish a duty of care or a standard of care in somecases but will hear such evidence in others offers no criterion fordetermining in which cases a plaintiff will fail and in which cases aplaintiff may succeed. The principle enunciated by Jacobs J. thatthere be "a relationship between the act of negligence and thenature of the illegal activity" is not self-explanatory. It may be thathis Honour had in mind that the illegality affects the standard ofcare applicable to the relevant act or omission - for example, bynecessitating secrecy, subterfuge or haste. But that approach wouldallow a co-offender, even in the most serious of crimes, to recover ifhe could show that the illegality did not affect the care which couldbe expected in the execution of the crime. The burglar might beliable in negligence for precipitately pushing the plunger if theburglary were proceeding smoothly with no risk of detection! If the"nature of the illegal activity" be relevant, the problem ofarticulating the criterion which distinguishes conduct in thecommission of offences of one nature from conduct in thecommission of offences of another nature remains. It is immaterialthat the mechanism for denying a remedy is a refusal to hear

(15) (1970) 119 C.L.R., at pp. 431- 432.

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evidence; what is material is the principle which distinguishesoffences of one nature from offences of another. In considering the"relationship between the act of negligence and the nature of theillegal activity", Jacobs J., seeking some guidance from Henwood'sCase, would have the court consider in the case of a statutoryoffence whether it is part of the purpose of the law creating theoffence to disentitle a person doing the prohibited act fromcomplaining of the other party's neglect or default: Jackson v.Harrison (16). With respect, that puts the facts the wrong wayaround: the defendant is the party who is doing the prohibited act,and doing it carelessly, and the plaintiff is the party complaining.The true question must be whether the conduct of the plaintiff as aparty to the offence - whether by common purpose, aiding,abetting, encouraging, counselling or procuring - so affects therelationship that no duty of care is owed to him by the defendant. Itmust be the plaintiff's participation in the offence which mightaffect the defendant's liability. A defendant does not avoid liabilityto an innocent plaintiff by showing that the negligence occurred inthe course of the defendant's commission of a crime.

None of the approaches thus far adopted in this Court is whollysatisfactory. The unqualified Smith v. Jenkins principle at leastfurnishes a criterion, but it is too Draconian in its application. Ifsome other approach is to be adopted, the starting point must be thereason why a plaintiff's participation in illegal conduct should affectthe arising of a duty of care. In Jackson v. Harrison, Murphy J.,recognizing (17) that "denial of recovery is a question of judicialpolicy" (or, as I should prefer to put it, a question of the policy ofthe law), thought that recovery should be denied on the ground ofillegality "only where denial is statutory policy" and that, those(rare) cases apart, "recovery should be denied only where there is avoluntary assumption of the risk" (18). That view is at one extreme;the unqualified principle of Smith v. Jenkins is at the other.

Then why should a plaintiff's participation in a defendant'scommission of an offence prevent a duty of care to the plaintifffrom arising? In broad terms, because the civil law cannot condonebreaches of the criminal law. To say that is to invite inquiry intotwo further questions: first, in what circumstances may theadmitting of a duty of care condone a breach of the criminal law?and, second, are all criminal laws of such a kind that the admissionof a duty of care as between participants in their breach necessarilyamounts to condonation? One question relates to the facts of the

(16) (1978) 138 C.L.R., at p. 459.(17) (1978) 138 C.L.R., at p. 464_

(18) (1978) 138 C.L.R., at p. 466.


case, the other to the nature of the offence created by the lawbreached by plaintiff and defendant.

The admitting of a duty of care may condone a breach of thecriminal law in which plaintiff and defendant participate if thepostulated duty of care arises from their engaging in conduct inbreach of the law. Thus, it would condone the burglars' breach ofthe law if the civil law admitted a duty of care owed by one burglarto another in respect of what they do in committing or attemptingto commit the burglary. By contrast, the civil law would not becondoning a breach of a law creating an offence by admitting aduty of care arising out of a relationship between the plaintiff andthe defendant to which their participation in the breach isimmaterial. One swindler may owe a duty of care to another who isa passenger in his car, though they are on their way to effect aswindle. It is a question of fact whether a breach of the criminal lawis material to the relationship out of which a duty of care is said toarise.

Where the plaintiff and the defendant respectively engage inconduct in breach of the criminal law and their relationship inengaging in that conduct would, apart from the illegality, give riseto a duty of care owed by the one to the other, the questionwhether the admitting of that duty of care condones the breachdepends, in my view, on the nature of the offence. It is necessary todistinguish between offences which preclude the admission of a dutyof care in respect of what is done by the plaintiff and defendant incommitting or attempting to commit them and offences which donot preclude the admission of such a duty of care. The distinction isnecessary not only to avoid the reproach of a Draconian rule butalso to reflect the reality that the admitting of a duty of care inrespect of conduct in breach of some laws does not condone theirbreach. It is only where the admission of a duty of care impairs thenormative influence of the law creating an offence that the civil lawcan be said to condone a breach of that law. In such cases, it wouldbe contrary to public policy to admit a duty of care as between cooffenders in the commission of the offence.

The penalties and, indeed, the whole panoply of the criminal laware designed to secure obedience to its commands, whereby thepeace and order of society are protected. The essential purpose ofthe criminal law is normative; if that were not so, the imposition ofcriminal punishments would be uncivilized. As the criminal law isthe chief legal means by which the peace and order of society areprotected, no doctrine of the civil law can be allowed to impair thecriminal law's normative influence. Subject to that consideration,however, there is no reason why a breach of the criminal law to

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which a plaintiff is party should sterilize a duty of care otherwiseowing to him by the defendant. To approach the problem in thisway is not the same as seeking to divine the intent of a statutecreating an offence: the problem is not to find or to impute alegislative intention to bar a civil remedy, but to limit the admissionof a civil duty of care in order not to trespass upon the operation ofthe criminal law.

In the case of more serious crimes, it would be absurd to admit aduty of care as between co-offenders in respect of the conduct bywhich the crime is committed: the conduct of the co-offenders issuch that the relationship between them is essentially criminal incharacter. On the other hand, in the case of offences created byindustrial safety legislation, the admitting of a duty of care wouldordinarily reinforce the normative influence of the law creating theoffence: far from condoning breaches of such laws, the admitting ofa duty of care would frequently enhance a defendant's incentive toobserve them. In the case of serious crime, the commission of thecrime is usually the sole or dominant purpose of the conduct;contraventions of industrial safety legislation by a plaintiff anddefendant ordinarily occur in the course of conduct engaged in forsome legitimate purpose. In between these two classes of offences,there are many offences which are difficult to place confidently onone side of the line or the other.

The problem is to describe the criminal laws whose normativeinfluence would be impaired by admitting a duty of care in respectof conduct engaged in by co-offenders in committing them. None ofthe familiar divisions of offences (offences created by Act andoffences created by regulation, statutory offences and common lawoffences, crimes and misdemeanours, indictable and summaryoffences, arrestable and non-arrestable offences, divisions accordingto maximum penalties) can serve as definitions of the requireddividing line, as Barwick C.J. acknowledged in Jackson v.Harrison (19). Yet, if there is to be a dividing line, the court mustdistinguish between the offences on either side of it. In determiningwhether the admitting of a duty of care would impair the normativeinfluence of a law creating an offence, the matters to be consideredinclude the gravity of the offence, the threat to public order orpublic safety or the infringement of the rights of third parties whichthe law seeks to prevent, any other mischief at which the lawcreating the offence is aimed, the penalties prescribed for breach ofthe law and the effectiveness of those penalties to secure obedienceto the law if a duty of care be admitted. The breach of a law that is

(19) (1978) 138 C.L.R., at p. 451.


classified as not likely to be impaired in its normative influence bythe admitting of a duty of care will ordinarily be committed in thecourse of conduct engaged in for a legitimate purpose. But I do notthink that laws creating criminal offences can or should be classifiedby reference to the circumstances of particular cases, for that wouldlead to ad hoc decisions in which the normative effect of thecriminal law would be hostage to the particular circumstances of thecase, perhaps including the extent of the plaintiff's injury. Theclassification must be made by reference to the general operation ofthe criminal law, which can secure obedience to its terms only if itoperates uniformly in all cases.

The principle that there is no duty of care where the admission ofthe duty would condone a breach of the criminal law is, regrettablybut inevitably, one that calls for a classification of the laws creatingoffences according to the effect which admission of the duty wouldhave on their normative influence. The principle cannot beexpressed in a way which is self-executing in the sense that there isno evaluation to be made. When the law creating the offence is ofthe class to which the principle applies, no duty of care arisesbetween co-offenders in respect of conduct engaged in in the courseof committing the offence or in attempting to commit the offence(or, it should be added, in being an accessory after the fact to theoffence where being an accessory after the fact is an offence). If thenormative effect of the criminal law is not to be impaired, theprinciple must extend to all conduct falling within thesedescriptions, not merely to conduct which in itself amounts to acomplete element of an offence of the relevant kind.

Is the principle applicable to offenders engaged in the unlawfuluse of a motor vehicle contrary to s. 408A of The Criminal Code?Section 408A creates an offence which is not only akin to stealingbut which is aimed at preventing conduct that frequently results inroad accidents and attendant damage to the person and property ofothers (including the vehicle being unlawfully used). It is a seriousoffence against the owner or person in lawful possession of thevehicle and against the public. To admit a duty of care owed by oneoffender to a co-offender in the unlawful use of a vehicle would beto assure the co-offender of compensation for damage to himselfoccurring in the course of conduct which damages the interests ofthe person from whose possession the car is taken and carries therisk of damage to others. The normative influence of s. 408A wouldbe destroyed by admitting a duty of care. Applying the principlestated, the duty of care must be denied - a result in accord withthe decision in Smith v. Jenkins.

It follows that, in my view, the appeal should be allowed, the

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judgment of the Full Court of the Supreme Court should be setaside and the judgment of the District Court restored.

DAWSON J. The plaintiff (respondent) was a passenger in a motorcar driven by the first defendant (first appellant). As a result of thecareless driving of the first defendant, the motor car left theroadway and collided with a tree. The plaintiff was injured. Heseeks to recover damages for his injuries and, apart from the factthat at the time of the accident he and the first defendant werejointly engaged in the illegal use of the motor car, he would beentitled to recover.

But it is contended that Smith v. Jenkins (20) stands as anauthority which would deny the plaintiff his entitlement todamages. In Smith v. Jenkins the plaintiff failed to recover damagesfor injuries which he received in a motor car accident because at thetime of the accident he and the defendant were both involved in theillegal use of the motor car in which they were travelling. I agreewith Brennan J. that Smith v. Jenkins is indistinguishable upon itsmaterial facts from the present case, but we are invited to reexamine the principle upon which Smith v. Jenkins rests in the lightof other decisions of this Court. It is sufficient to say of Smith v.Jenkins for the moment that a majority in that case held that thejoint illegal enterprise in which the plaintiff and the defendant wereengaged precluded, as a matter of policy, the recognition of anyduty of care on the part of the defendant.

The other decisions are of limited assistance in throwing lightupon the true basis for the decision in Smith v. Jenkins. InHenwood v. Municipal Tramways Trust (S.A.) (21), the deceasedwas fatally injured when he leant out of the window of a tram. Hishead struck two steel standards which were negligently placed tooclose to the tram. In leaning out of the window the deceased was inbreach of a by-law made by the Tramways Trust. Nevertheless, hisparents recovered damages in a Wrongs Act claim against theTramways Trust. It was not a case in which the injured person wasengaged in a joint criminal enterprise. The injury was caused, notby his illegal act, but by the negligence of the Tramways Trust. Theillegal act of the deceased amounted at most to contributorynegligence.

In Progress and Properties Ltd. v. Craft (22) the plaintiff, aworkman on a building under construction, was injured when agoods hoist upon which he was being carried fell to the ground. The

(20) (1970) 119 C.L.R. 397.(21) (1938) 60 C.LR. 438.

(22) (1976) 135 C.LR. 651.


operator of the hoist was in breach of a Tegulation in allowing theplaintiff to ride on the hoist and the plaintiff was in breach of thesame regulation in riding on the hoist. The plaintiff and theoperator were, therefore, jointly engaged in an illegal enterprise.Nevertheless, the plaintiff recovered damages arising from thenegligent operation of the hoist. It was held by a majority that jointillegal activity may extinguish a duty of care which would otherwisebe owed by one party to another where the nature of the illegalactivity is such that a court cannot or will not establish a standardof care. In that case, however, it was held that there was no reasonwhy the court should not determine a standard of care owed by theoperator of the hoist to the plaintiff, because it could be determinedwithout reference to the illegality. Moreover, the regulation whichcreated the illegality was for the benefit of one of the participants inthe illegal enterprise.

In Jackson v. Harrison (23) the plaintiff, a passenger in a motorcar driven by the defendant, was injured as a result of thedefendant's negligence. Both the plaintiff and the defendant were tothe knowledge of each other disqualified from holding a drivinglicence at the time. Notwithstanding this, they agreed to share thedriving on the journey during which the plaintiff was injured. Theywere, for this reason, jointly engaged in an illegal enterprise. Again,a majority held that the plaintiff was entitled to recover. It was heldthat a duty of care is denied when the character of the illegalenterprise is such that the court cannot properly establish thecontent of that duty, that is, the standard of care. In that case,however, the content of the duty of care owed by the defendant tothe plaintiff could be established without bringing into considerationthe illegal nature of the activity in which the parties were engaged.

It is clear from these authorities and from Smith v. Jenkins that aplaintiff will only be precluded from recovering on the ground ofillegality when he is jointly engaged in an illegal enterprise with theperson alleged to owe him a duty of care. If the principle which liesbehind the cases is to be explained in terms of a court's refusal to fixa standard of care by reference to the nature of a criminal activity,then this limitation is clear enough. If the plaintiff alone is engagedin illegality, then this will be merely coincidental to any negligenceon the part of the defendant. Similarly, illegal activity on the part ofthe defendant alone ought not to affect the content of any duty ofcare owed by him to a plaintiff who is not acting illegally.

But in declining to set a standard of care - and hence to erect aduty of care - in some cases of joint illegal activity, the law is

(23) (1978) 138 C.L.R. 438.

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exhibiting an unwillingness rather than an incapacity to do so. AsMurphy]. pointed out in Jackson v. Harrison (24):

"Illegal safebreaking where an accomplice is injured byanother's careless use of explosives is often discussed ... andwas referred to in the Court below. It was regarded as anexample of absence of any standard of care and therefore ofany duty of care. If, however, a statutory provision requiredany person using explosives not to explode them while anyoneunprotected was in the vicinity, there would be a statutoryduty to take care, a statutory standard of care and, apart fromthe illegality, presumably a right to recover for the breach ofthe statutory duty. There would doubtless also be, apart fromthe illegality, a right to recover for common law negligence inwhich the statutory standard would be evidence of the requisitestandard of care. In these circumstances, it would be difficult toattribute denial of recovery to an inability to establish astandard of care. Yet it would not be easy to justify a refusal torecognize the prescribed standard."

It is, therefore, necessary to seek what lies behind the law'sreluctance to set a standard of care to be observed by theparticipants in a joint criminal enterprise. In such an exercise I donot derive any great help from the notion of proximity as it hasbeen developed in recent decisions of this Court.

The requirement of proximity has been a useful means ofexpressing the proposition that in the law of negligence reasonableforeseeability of harm is not enough to establish a duty of care.Something more is required and currently it is described as aproximate relationship between the relevant parties. But the use ofthat term does not of itself indicate the content of the requirement.Indeed, "proximate relationship" or "proximity" may not be thehappiest choice of terms because it suggests a nearness or closenessof some kind between the parties and it is now perfectly plain thatproximity may embrace more than that. The use of the word"proximity" is explained by its appearance in that famous, ifsomewhat ambiguous, passage in the speech of Lord Atkin inDonoghue v. Stevenson (25), in which he describes who, in law, isone's neighbour. Whatever he intended to convey by the use of thatword, it is now clear that it extends beyond nearness or closeness,physical or otherwise. This case is a good illustration. If it is saidthat, notwithstanding the reasonable foreseeability of harm to theplaintiff, there was no duty of care owed to the plaintiff by the firstdefendant because there was no relationship of proximity betweenthem, it cannot mean that their relationship was not sufficiently

(24) (1978) 138 C.L.R., at pp. 463464.

(25) (1932) A.C. 562, at pp. 580581.


close or near. The relationship of driver and passenger is in othercircumstances a textbook example of a proximate relationship.What is meant in the present context is that the law does notrecognize a duty of care in the circumstances in which the plaintiffsustained his injuries. In other words, proximity embracesconsiderations unrelated to closeness or nearness and in a case suchas the present it is the identification of the underlying principlewhich is the important thing. Merely to describe it as a matter ofproximity is to mask the problem.

I do not mean to suggest that the application of the test ofproximity produces capricious or arbitrary results. But I think itmay be going too far to say, as Deane J. does in Stevens v. BrodribbSawmilling Co. Pty. Ltd. (26), that "the notion of proximity can bediscerned as a unifying theme explaining why a duty to takereasonable care to avoid a reasonably foreseeable risk of injury hasbeen recognized as arising in particular categories of case". It is,however, true, as Deane J. also points out, that the test ofproximity proceeds in accordance with the accepted modes of legalreasoning, particularly reasoning by analogy from decided cases. Onthe other hand, it would also be going too far to say that the notionof proximity is entirely without content and that no principlesemerge from the process of extrapolation from decided cases orcategories of decided cases: cf. Howarth, "Negligence after Murphy:Time to Re-think", Cambridge Law Journal, vol. 50 (1991) 58, atpp. 70-71. For example, there are reasons of general, if notuniversal application, which lie behind the rule which, for the mostpart, denies recovery of damages for pure economic loss or the rulewhich restricts the recovery of damages for nervous shock to aparticular kind of plaintiff. But it is obvious that the search for asingle principle underlying the concept of proximity is bound to beunsuccessful. That is to be seen from this case itself.

If in this case a proximate relationship between the plaintiff andthe defendant is to be denied, then it must be upon the basis that asa matter of policy the law refuses to erect a duty of care,notwithstanding that the plaintiff's injuries were reasonably foreseeable by the first defendant. It adds nothing by way of explanation tosay that it is a matter of public policy. It is necessary to identify thepolicy and to explain its application by reference to its limits. Iwould express the policy as being the refusal of the law to condonethe commission of a criminal offence by granting a civil remedy.

I prefer to express myself in that general way and to avoidconfining the policy by linking it with the preservation of the

(26) (1986) 160 C.L.R. 16, at p. 52.

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normative effect of the criminal law. This is for two reasons. Thefirst is that I doubt that it is possible to gauge the extent to whichallowing a civil remedy might impair the normative (especially thedeterrent) effect of the criminal law. And as Mason J. said inJackson v. Harrison (27):

"The elimination of civil liability between the participants in ajoint criminal enterprise cannot be sustained on the groundthat it is a deterrent against criminal activity; it might withequal force be put forward as an inducement to such activity.Even if punishment of illegal conduct is not a matter for theexclusive attention of the criminal law, as I think it should be,a policy of deterrence directed against the participants in ajoint criminal enterprise but not against the individual criminalmakes very little sense."

Secondly, I think that the policy goes deeper than possibleinterference with the normative effect of the criminal law. Therewould be a fundamental inconsistency between the civil andcriminal law if a civil remedy were to be afforded to one accompliceagainst another based upon the latter's failure to observe a standardof care fixed by reference to their joint criminal activity. That oneshould seek to ameliorate his position at the expense of the other inthat situation would be wholly repugnant to the accepted standardsof the law. That is, I think, what Windeyer J. had in mind in Smithv. Jenkins (28) when he said:

"If two or more persons participate in the commission of acrime, each takes the risk of the negligence of the other orothers in the actual performance of the criminal act. Thatformulation can be regarded as founded on the negation ofduty, or on some extension of the rule volenti non fit injuria,or simply on the refusal of the courts to aid wrongdoers. Howit be analysed and explained matters not."

Similarly, it is the notion which lies behind the explanation that thelaw will not set a standard of care to be observed betweenaccomplices in the performance of their criminal venture. It is notbecause it is impossible to do so, but because it is repugnant to thelaw to do so.

The limits which have been set in the application of the basicpolicy do, I think, indicate its true scope. The standard which thelaw of negligence applies to a duty of care created by it is in mostcases no more or less than the standard of the reasonable person.But the law recognizes that there is a special character about somerelationships which requires the modification of that standard byreference to the particular circumstances. Adopting an example

(27) (1978) 138 C.L.R., at p. 453. (28) (1970) 119 C.L.R., at p. 422.

172 CL.R.] OF AUSTRALIA. 279

given by Latham CJ. in Insurance Commissioner v. Joyce (29), themajority in Cook v. Cook (30) said:

"if a person were deliberately to agree to allow a blacksmith toseek to mend his watch, the blacksmith would be required toact as a reasonable person should in the circumstances, thoughhe would not be subject to the high standard of care whichwould be required of a professional watchmaker. The reasonfor that is not that the objective general standard required bythe law of negligence is abandoned. It is that the more detaileddefinition of the content of that objective standard will dependupon the relevant relationship of proximity from which it flowsand into which the reasonable person of the law of negligencemust be projected; it 'is because that relation may vary that thestandard of duty or of care is not necessarily the same in everycase': per Dixon J.,Joyce's Case (31)."

I now doubt whether the reference to "proximity" in that passageadds anything to it, but it is clear that the fact that two or morepersons are jointly engaged in a criminal enterprise may constitute aspecial element in their relationship which requires modification ofthe standard of care if any duty of care between them is to beimposed. The nature of the criminal enterprise may bring with itconsiderations which would make it quite unrealistic simply to haveregard to the standard of the ordinary, reasonable person. Indeed,the ordinary, reasonable person does not find himself or herself inthe position of an accomplice in the commission of a criminaloffence. It is not, for example, possible simply to apply the standardof the reasonable person to two safe-breakers intent upon blowingup a safe or, for that matter, to two persons engaged in the illegaluse of a motor car. If a standard of care were to be set it wouldrequire modification by reference to the criminal aspects of theventure. It is at this point that the policy of the law steps in. To givevalidity to the criminal enterprise by using it as the foundation forerecting a standard of care is something which the law will not do.To do so would be to condone breach of the criminal law. It may besaid in those circumstances that the relationship between theparticipants is not sufficiently proximate to give rise to a duty ofcare, but to say as much without explaining the reason is to reveallittle.

Of course, it is not every relationship involving participation in acriminal activity which requires the modification of the standard ofcare to be imposed upon the participants. In Progress and PropertiesLtd. v. Craft, the illegality involved in the use of the hoist

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(29) (1948) 77 C.L.R. 39.(30) (1986) 162 C.L.R. 376, at

p.382.

(31) (1948) 77 C.L.R., at p. 56.

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introduced no special element into the relationship between theplaintiff and the hoist operator which would have required anymodification of the standard of care otherwise required of the latter.And in Jackson v. Harrison the fact that the plaintiff and defendantwere each disqualified from holding a driving licence had nonecessary bearing upon the standard of care required of each ofthem toward the other in the driving of the motor car. In thosecases, setting the appropriate standard of care did not involve anydependence upon the nature of the criminal activity in which theparties were engaged and for that reason involved no condonationof their breach of the criminal law. Indeed, I think that it can besaid that, as a general rule, if not invariably, activities in breach ofhealth or safety regulations are not to be judged by a standard lessthan that of the reasonable person. Such regulations may, indeed,amount to evidence of that standard.

The same could not, in my view, be said of the relationshipbetween two persons jointly engaged in the illegal use of a motorcar. The criminal nature of the activity with its concomitant lack ofresponsibility for the safety of the vehicle involved and theinevitable desire to avoid detection which might result in theimposition of a criminal penalty must mean that the participants insuch a venture cannot be placed, as regards each other, in theposition of ordinary, prudent users of the road. There is a specialelement in their relationship which, if a standard of care were to beset, would require its modification by reference to the criminalnature of their activity. It is an element which in this case remainedpresent to affect that relationship during the entire period of theillegal use of the motor car. In these circumstances the law refusesto set a standard of care and, hence, to erect a duty of care.

I would allow the appeal.

TOOHEY J. The respondent suffered injuries on 14 August 1984when a car in which he was travelling as a passenger and which wasdriven by the first appellant left the Bruce Highway south ofGladstone in Queensland.

The circumstances of the accident, including damage done to thecar when it hit a tree, pointed to high speed on the part of the driverand inattention in the manner of driving. Although, for reasonswhich will appear, the primary judge made no express finding ofnegligence against the first appellant, it was not disputed that underordinary circumstances a finding of negligence against the driver ofthe car was inevitable.

But, the appellants contended, these were not ordinary circumstances. The vehicle in which the first appellant and the respondent


were travelling had been stolen. It belonged to the second and thirdappellants and was insured by the fourth appellant. At about 12noon on the day of the accident the first appellant, the respondentand two other young men began drinking in the Customs HouseHotel, Maryborough. They remained there until about 7. 00 p.m.during which time all of them drank a great deal of alcohol. Therespondent's evidence was that he consumed in the order of 40scotches and the others about the same amount of beer. All fourdecided to steal a motor vehicle and drive it to Gladstone and thento Rockhampton. They found a car (belonging to the second andthird appellants) with its keys in the ignition. They got into the car,with the respondent driving. At Childers, which is north ofMaryborough, the respondent handed over the driving to the firstappellant and sat in the back of the car. During the journey the fourmen consumed a carton of stubbies of beer. After handing over thedriving, the respondent fell asleep and was still asleep when the carleft the road. He was not wearing a seat belt.

The respondent and the first appellant were later charged withunlawfully using a motor vehicle contrary to s. 408A of TheCriminal Code (Q.). Each pleaded guilty to the charge.

The reason why the primary judge did not make an expressfinding of negligence against the first appellant was because he tookthe view that the "journey north in which the [respondent] and thefirst [appellant] were engaged was a joint unlawful use of the motorvehicle" and that, having regard to the authorities cited to him,"this is a case in which I cannot determine an appropriate duty ofcare owed by the first [appellant] to the [respondent]". The latterpassage involves a blend of two distinct concepts, duty of care andstandard of care, an important distinction to which I shall refer laterin these reasons. His Honour went on to hold that, had the firstappellant owed a duty of care, the respondent was contributorilynegligent to the extent of 60 per cent because of his consumption ofalcohol with consequent impairment of his capacity to assess thefirst appellant's capacity to drive the car and because the respondentwas not wearing a seat belt at the time of the accident. Thedetermination of contributory negligence has not been challengednor has the primary judge's assessment of the damages to which therespondent would have been entitled had the first appellant beenfound negligent.

An appeal by the respondent to the Full Court of the SupremeCourt was allowed (Connolly, McPherson and Williams JJ.) (32).Williams J. wrote the principal judgment; Connolly J. concurred

(32) [1990] 1 Qd R. 170.

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with Williams J.; McPherson J. also concurred with the ordersproposed by Williams J. but added some observations of his own.The decision of the Full Court resulted in a judgment in favour ofthe respondent for damages in the amount assessed by the primaryjudge, reduced in accordance with the determination ofcontributory negligence. From that judgment the appellantsappealed to this Court.

Any consideration of the implications of conduct constituting acriminal offence for a person who suffers injury in the course ofthat conduct must begin with Smith v. Jenkins (33). Although thatdecision was distinguished in Progress and Properties Ltd. v.Craft (34) and Jackson v. Harrison (35), unless and until overruled itstands as an authority to be followed where applicable. Therespondent invited this Court to distinguish Smith v. Jenkins in thepresent case and, if this was not thought possible, to overrule it.

In Smith v. Jenkins the respondent was injured by the negligentdriving by the appellant of a car which both were using unlawfully,in breach of s. 81 (2) of the Crimes Act 1958 (Vict.). All members ofthe Court (Barwick c.J., Kitto, Windeyer, Owen and Walsh 11.)held that the respondent could not recover damages from theappellant. But the basis upon which recovery was refused differed.Barwick c.J. (36), posed the options in this way:

"The choice it seems to me is between a refusal of the law toerect a duty of care as between persons jointly participating inthe performance of an act contrary to the provisions of astatute making their act a crime punishable by imprisonmentand a refusal of the courts, upon grounds of public policy, tolend their assistance to the recovery of damages for breach inthose circumstances of a duty of care owed by the one to theother, because of the criminally illegal nature of the act out ofwhich the harm arose."

Barwick c.J. put his decision on the former basis. Whileaccepting that considerations of public policy have their place inany decision to impose or erect a duty owed by one person toanother, his Honour continued:

"But basically it is the relationship of the parties which givesrise to the duty. Here the respondent and the appellant ... didnot relevantly stand in the relationship of passenger and driver.Their relationship was that of joint participants in the very act,itself unlawful ... , out of which the mischief to the respondentarose ... the law will not hold that a duty of care arose out ofthat relationship."

It will be necessary to look more closely at the absence of a duty

(33) (1970) 119 C.L.R. 397.(34) (1976) 135 C.L.R. 651.

(35) (1978) 138 C.L.R. 438.(36) (1970) 119 C.L.R., at p. 400.


of care approach because of the importance it assumes in laterdecisions. It is enough for the moment to note that the relationshipsidentified by Barwick c.J. are not by their nature mutuallyexclusive though the law may choose so to regard them.

Kitto J. did not think that the case was one where the illegalityprevented the creation of a relationship as the source of a duty ofcare but he thought it was one "falling within the reason whichScrutton L.J.... gave [in Hillen v. I.e.I. (Alkali) Ltd. (37)] ... ,namely that 'the whole transaction is known by each party to beillegal and there is no contribution or indemnity between jointwrongdoers'" (38). "The underlying reason", said his Honour (38),"is that in such a case the law regards the joint illegal conduct as thecommission of a single wrong of which, as a whole, each participantis guilty".

It is hard to do justice, in a line or two, to the learned discussionby Windeyer J. But it is clear that his Honour approached thematter by asking, not whether the plaintiff was precluded fromasserting a right of action, but by asking: "is there for him a right ofaction?" That in turn depended upon "whether in the circumstancesthe law imposed a duty of care; for a right of action and a duty ofcare are inseparable. The one predicates the other" (39). In the endWindeyer J. expressed the relevant test in these terms (40):

"If two or more persons participate in the commission of acrime, each takes the risk of the negligence of the other orothers in the actual performance of the criminal act. Thatformulation can be regarded as founded on the negation ofduty, or on some extension of the rule volenti non fit injuria,or simply on the refusal of the courts to aid wrongdoers. Howit be analyzed and explained matters not."

Owen J. too put the matter in terms of an absence of a duty ofcare, by saying (41): "the law does not recognize the relationshipbetween two criminals who are jointly engaged in carrying out acriminal venture as being one which gives rise to a duty of careowed by the one to the other in the execution of the crime."

Walsh J. was at pains to eschew any general rule to which allactions involving an unlawful act might be subject. But, his Honourformulated the relevant question in these terms (42):

"The question is not whether a plaintiff, in whom a right ofaction is assumed to have vested, is to be allowed to enforce itor is to be held to be disqualified from doing so. The question iswhether or not ... the plaintiff in this case had a right of actionfor damages for negligence against the defendant."

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(37) [1934]1 K.B. 455, at p. 467.(38) (1970) 119 C.L.R., at p. 403.(39) (1970) 119 C.L.R., at p. 418.

(40) (1970) 119 C.L.R., at p. 422.(41) (1970) 119 C.L.R., at p. 425.(42) (1970) 119 C.L.R., at p. 429.

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Walsh J. considered that, upon the facts of the case, the act ofdriving was not merely connected with the execution of a criminalpurpose but was itself the criminal act of illegally using the car, acriminal act which the plaintiff also committed by his presence inthe car (43). He concluded (43): "no right of action in negligence isgiven by the law in respect of the carrying out by one of theparticipants in a joint criminal enterprise of the particular criminalact in the commission of which they are engaged."

This rather lengthy analysis of the judgments in Smith v. Jenkinshas been necessary because of the respondent's invitation to us,either to distinguish the decision or to overrule it. In decidingwhich, if either, course is appropriate, a first step is to determine forwhat Smith v. Jenkins stands as authority. In other words, what isthe ratio decidendi of the case?

Professor Julius Stone has observed:"Two main methods of finding the ratio of a case are

currently regarded as permissible and proper: one which seeksthe holding on 'the material facts' of the preceding case, theother which seeks the rule propounded by the precedent courtas the basis of its decision. In the material facts version, theratio decidendi is that reason which 'explains' (or is 'the basis'of, or is 'necessary to explain') the holding by the precedentcourt on 'the material facts' as identified by the precedentcourt. In the rule-propounded version, the ratio decidendi isthat reason which is propounded by the court as 'the basis' of(or as 'explaining', or as 'necessary' for 'explaining') itsdecision": Precedent and Law (1985), p. 123.

If the first of these methods is applied in the present case, theratio of Smith v. Jenkins is to be found in the opening part of theheadnote to the report, which reads:

"The respondent was injured through the appellant's negligent driving of a motor car which both parties were unlawfullyusing contrary to the provisions of s. 81 (2) of the Crimes Act1958 (Vict.).

Held, that the respondent could not in the circumstancesrecover damages from the appellant."

With the appropriate identification of the parties and the statutoryprovision involved, that statement applies directly to the facts of thepresent case.

If the second method referred to by Professor Stone is applied,what emerges as the "reason" propounded by the Court in Smith v.Jenkins as the basis of its decision? On this approach, the search isfor a reason which explains the basis for the decision. For thispurpose, I think that one can put to one side the judgment of

(43) (1970) 119 C.L.R., at p. 433.


Kitto J. as his Honour's approach was not shared by other membersof the Court. (Cf. Barwick c.J. in Jackson v. Harrison (44).) Thejudgment of Barwick C.J. in Smith v. Jenkins was clearly foundedon the refusal of the law to erect a duty of care as betweenparticipants in a crime out of the commission of which the mischiefto the injured person arose. Windeyer J. must be taken to haveheld, as a consequence of his analysis, that, because participants inthe commission of a crime take the risk of negligence on their partin the actual performance of the criminal act, no duty of care isowed by one to the other. Owen J. took much the same approach asWindeyer J. Walsh J. expressed the matter in terms of right ofaction rather than duty of care though, no doubt, one underlay theother.

In the judgments of Barwick C.J., Windeyer J. and Owen J. inSmith v. Jenkins there is to be found a common approach. Theheadnote to the decision expresses that approach in this way:

"If two persons participate in the commission of a crime,each takes the risk of the negligence of the other in the actualperformance of the criminal act."

As a statement of the views of three Justices concerned, thestatement is accurate, though, for completeness and to avoid themistake of marking out the notion of volenti as the precise basis forthe approach, it needs the addition of a sentence along these lines:"In those circumstances neither participant owes a duty of care tothe other." Again, the statement in the headnote, with the suggestedaddition, applies with equal force to the facts of the present case.Leaving aside for the moment the possibility of overruling Smith v.Jenkins, is it possible to distinguish it in the manner suggested bythe respondent which itself was based on the approach taken by theFull Court in the present case?

To understand the submission that Smith v. Jenkins isdistinguishable, regard must be had to some subsequent decisionsfor it is in those decisions that the Full Court saw qualifications tothe general statement in the earlier case.

Progress and Properties Ltd. v. Craft (45) concerned an action fornegligence and breach of statutory duty brought by a workmanagainst his employer when a goods hoist in which he was travellingin a building under construction fell to the ground at high speedafter the operator's foot slipped off the lift brake. A regulation inforce precluded any person "other than a workman engaged in bonafide maintenance work" (and Craft was not so engaged) fromtravelling in a goods hoist. Craft entered the hoist with the

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(44) (1978) 138 C.L.R., at p. 443. (45) (1976) 135 C.L.R. 651.

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concurrence of its operator. Progress and Properties Ltd. included inits defence a plea that, at the time of the· accident, Craft and theoperator were participating in a joint illegal venture. Stephen,Mason and Murphy 11. agreed with Jacobs J., whose rejection ofthe plea of illegality was essentially on the ground that the act oromission of negligence complained of was not the act of permittingCraft to ride on the hoist, "but [was] the act of negligently failingproperly to operate the foot brake and control the descent of thehoist" (46). Later on that page his Honour explained: "Whether ornot it was legal to ride on the hoist platform the same standard ofcare in operating the hoist would be expected of the operator."

Jacobs J. referred to Smith v. Jenkins but only for the purpose ofdistinguishing it in these terms (46):

"Where there is a joint illegal activity the actual act of whichthe plaintiff in a civil action may be complaining as donewithout care may itself be a criminal act of a kind in respect ofwhich a court is not prepared to hear evidence for the purposeof establishing the standard of care which was reasonable inthe circumstances."

In his Honour's view, this was not such a case and, in any event,the principle had no application where the illegality arose "from thebreach of specific statutory duties of care for the safety of one ofthe participants" (47). Barwick c.J. dissented because he thoughtSmith v. Jenkins indistinguishable.

The judgments of the majority in Progress and Properties Ltd. v.Craft do not represent a watering down of the decision in Smith v.Jenkins. Views may differ as to the closeness of the relationshipbetween the unlawful act and the negligence complained of but thatdoes not affect the principle involved. More particularly, thejudgments in Smith v. Jenkins focus on conduct amounting to thecommission of a crime; they say nothing as to the breach of aregulation aimed at protecting persons in the position of Craft. Thecontrary view expressed by Barwick C.J. in Progress and PropertiesLtd. v. Craft (48), is one that I cannot share.

Smith v. Jenkins was once more distinguished in Jackson v.Harrison (49). This case concerned an action for negligence by apassenger in a car being driven by the defendant who wasdisqualified from holding a driver's licence at the time and wasdriving the car in breach of the Motor Vehicles Act 1959 (S.A.),s. 91(5). A majority of the Court (Mason, Jacobs, Murphy andAickin 11.) held that the plaintiff was not precluded from recovering

(46) (1976) 135 C.L.R., at p. 668.(47) (1976) 135 C.L.R., at p. 669.

(48) (1976) 135 C.L.R., at p. 659.(49) (1978) 138 C.L.R. 438.


damages. Barwick c.J. again dissented on the basis that Smith v.Jenkins was directly applicable.

In his dissenting judgment Barwick C.J. referred to the individualjudgments in Smith v. Jenkins and concluded (50):

"Thus, it can properly be said, in my opinion, that there wasa clear majority of the Court for the explanation that therelationship of one participant to another in the commission ofan offence is not such as to give rise to a duty of care inter sein relation to acts done in the commission of the offence.

It was quite clear that the Court did not limit its decision toacts in the commission of the offence which were causallyrelated to the injuries received. It was clear from the decision ofthe case that the principle did extend to acts done in thecommission of the offence, though the immediate cause of theinjuries was not part of the agreement to participate in the useof the car, nor itself an element in the illegality of that use."

With the first paragraph of that assessment of Smith v. Jenkins, Irespectfully agree. As to the second paragraph, I read the judgmentsin Smith v. Jenkins as refusing to find a duty of care incircumstances where the injury to the plaintiff arises from theconduct which constitutes the commission of a crime. I find nowarrant in the judgments in Smith v. Jenkins for extending itsoperation beyond that situation. And in Smith v. Jenkins the Courtwas not directing its attention to any distinction between feloniesand misdemeanours (as in the common law) or between crimes andmisdemeanours (as in the Criminal Codes) but rather to a situationin which a serious criminal act was involved.

Of the majority in Jackson v. Harrison, Mason J. said that Smithv. Jenkins did not decide that the participants in a joint illegalenterprise owed no duty of care to each other. He said (51):

"The case was limited to its particular facts. They involved theillegal use of a motor vehicle ... The members of the Courtassigned a variety of reasons for arriving at this result, noparticular reason commanding universal or even majorityacceptance."

For reasons given earlier in this judgment I am of opinion that it ispossible to extract a reason which commanded the view of amajority. Mason J. rejected as Draconian a rule which precludedrecovery by a plaintiff passenger who knows that his driver iscommitting a breach of the law in driving the vehicle because he isunlicensed or because the vehicle does not comply with motortraffic requirements (52). With that observation I respectfully agree

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(50) (1978) 138 C.L.R., at pp. 443444.

(5I) (1978) 138 C.L.R., at pp. 453454.

(52) (1978) 138 C.L.R., at p. 453.

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and no such rule is demanded by Smith v. Jenkins. His Honour'sconclusions were derived from this proposition (53):

"If a joint participant in an illegal enterprise is to be deniedrelief against a co-participant for injury sustained in thatenterprise, the denial of relief should be related not to theillegal character of the activity but rather to the character andincidents of the enterprise and to the hazards which arenecessarily inherent in its execution. A more secure foundationfor denying relief, though more limited in its application - andfor that reason fairer in its operation - is to say that theplaintiff must fail when the character of the enterprise in whichthe parties are engaged is such that it is impossible for the courtto determine the standard of care which is appropriate to beobserved."

In Pitts v. Hunt (54), Balcombe L.J. found himself "in completeagreement" with that passage.

There are two comments that may be made on the passage fromthe judgment of Mason J. just quoted. The first is that Smith v.Jenkins was decided by reference to the unlawful nature of theactivity in which the participants were engaged. The second is thatthe notion of the impossibility of determining the standard of careappropriate to those engaged in an illegal enterprise is to posit a testwhich is open to the criticism that, in some such situations, it maynot be at all hard to determine an appropriate standard of care.And, on one view, the present case is a good example of a situationin which a standard of care may be determined without muchdifficulty. It is of course possible to conceive of a scenario in whichtwo persons agree to steal a car, in which the likelihood of pursuit isgreat as is the need to travel at high speed to evade pursuit. In thosecircumstances it would be nigh on impossible to spell out a standardof care to meet the situation in which an accident occurredduring the pursuit: see, by way of illustration, Bondarenko v.Sommers (55). On the other hand, two persons may agree to steal acar from a parking lot, in circumstances where its absence may notbe noticed for some time, and then to drive a relatively shortdistance and abandon the car. If, during that drive, the driver'sattention wanders and an accident occurs, where IS the difficulty indetermining a standard of care? Take the quaint example offered byScrutton L.J. in Hillen v. ICI (Alkali) Ltd. (56), of the smugglerwho is injured when a rope, used to lower kegs of brandy into thecellar of a confederate who knows the rope to be defective, breaks.There is no difficulty in formulating a standard of care owed by the

(53) (1978) 138 C.L.R., at pp. 455·456.

(54) [1991J 1 Q.B. 24, at p. 49.

(55) (1968) 69 S.R. (N.S.W.) 269.(56) [1934]1 K.B. 455, at p. 467.

172 C.1.R.] OF AUSTRALIA. 289

owner of the building in those circumstances. That is not to say thata claim for damages for negligence in those various circumstancesshould succeed; indeed Smith v. Jenkins is against success. It is tosay no more than that the fonnulation suggested by Mason J. maymeet some situations but not others: see also Murphy J. in Jacksonv. Harrison (57).

In Jackson v. Harrison Jacobs J. adhered to the approach he hadtaken in Progress and Properties Ltd. v. Craft, saying (58):

"Before the courts will say that the appropriate standard ofcare is not permitted to be established there must be such arelationship between the act of negligence and the nature ofthe illegal activity that a standard of care owed in theparticular circumstances could only be determined by bringinginto consideration the nature of the activity in which theparties were engaged."

His Honour did not think that Jackson v. Harrison was such a case,a view which is readily understandable given the nature of theillegality relied upon. Murphy J. approached the resolution of theproblem in this way (59):

"This means (where the plaintiff's offence is statutory) thatrecovery will be denied (by reason of illegality) only wheredenial is statutory policy (not because the court for reasons ofpolicy declines to adopt a standard or recognize a duty).Otherwise, recovery should be denied only where there is avoluntary assumption of the risk."

Aickin J. agreed with Jacobs J.There is much force in the comment of Dillon 1.J. in Pitts v.

Hunt (60):

"Both Jackson v. Harrison . .. and Progress and Properties Ltd.v. Craft ... can be regarded as cases within Bingham 1.J.'scategory, in Saunders v. Edwards (61), of cases where theplaintiff had suffered a genuine wrong to which his allegedlyunlawful conduct was merely incidental."

Against that background of decisions of this Court it is useful totum in the instant case to the judgment of. Williams J. in the FullCourt (62). His Honour examined the three decisions to which Ihave referred and also the decision of this Court in Cook v.Cook (63). In my opinion, Cook v. Cook has nothing to say as tothe resolution of this appeal. But that was not the view of

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(57) (1978) 138 C.L.R., at p. 463.(58) (1978) 138 C.L.R., at p. 457.(59) (1978) 138 C.L.R., at p. 466.(60) [1991) 1 Q.B., at p. 58.

(61) [1987) 1 W.L.R. 1116; [1987)2 All E.R. 651.

(62) [1990)1 Qd R. 170.(63) (1986) 162 C.L.R. 376.

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Williams J.; his Honour saw in that decision a reconciliationbetween the various decisions of this Court. His Honour said (64):

"The basic principle is that laid down by the High Court inCook. Special or exceptional circumstances affecting therelationship between the driver and passenger of a motorvehicle may take the case out of the ordinary class ofrelationship between such persons and put such people in arelationship in which either some duty of care (perhaps of alower standard) is owed or even into a situation where no dutyof care is owed at all."

On this approach, Williams J. saw Smith v. Jenkins as "a decisionon the special and exceptional facts as seen by the court, andinterpreted in that way is not inconsistent with the later decisions.But for present purposes this Court must apply the principle asestablished in Craft, Jackson, and Cook to the facts of thiscase" (65).

Cook v. Cook concerned an action for damages for negligencebrought by a passenger in a car driven by an inexperienced andunlicensed driver. Mason, Wilson, Deane and Dawson 11. held thatordinarily there is a relationship of proximity between driver andpassenger and that the standard of care is objective. But inexceptional circumstances, such as that of driving instructor andpupil, the standard of care may be other than that of a qualified andcompetent driver. This was such a case. Brennan J. expressed theposition in terms of a duty of care to be expected "of a person ofordinary prudence who is disabled by the unusual condition ofwhich the passenger has knowledge" (66). It is apparent from thejudgments of this Court and also from those of the Full Court ofthe Supreme Court of South Australia (see Cook v. Cook (67)) thatthere was no plea of illegality by the defendant. In none of thejudgments in either Court is there any reference to Smith v.Jenkins, Progress and Properties Ltd. v. Craft or to Jackson v.Harrison. The issue was one of the standard of care to be expectedof a learner driver in the circumstances. The case was not disposedof by reference to the presence or absence of any duty of care or tothe impossibility of propounding a standard of care in thecircumstances. The Full Court of the Supreme Court of Queenslandwas in error in regarding Cook v. Cook as laying down principles bywhich the instant litigation is to be determined.

On the facts of the present case it is not possible to distinguishSmith v. Jenkins. The question then is: should Smith v. Jenkins beoverruled? There has been criticism of the decision in legal writings:

(64) [199011 Qd R., at p. 178.(65) [1990) 1 Qd R., at p. 179.

(66) (1986) 162 C.L.R., at p. 393.(67) (1986) 41 S.A.S.R. I.


see for instance Fleming, Law of Torts, 7th ed. (1987), p. 278; Ford,"Tort and Illegality: The Ex Turpi Causa Defence in NegligenceLaw", Melbourne University Law Review, vol. 11 (1977) 32, 164;Weinrib, "Illegality as a Tort Defence", University of Toronto LawJournal, vol. 26 (1976) 28; Fridman, "The Wrongdoing Plaintiff",McGill Law Journal, vol. 18 (1972) 275. Much of the criticism isdirected at the relevance of the maxim ex turpi causa non orituractio in contemporary law. But in Smith v. Jenkins Windeyer J. wasat pains not to base his judgment on the maxim. Indeed, hesaid (68):

"Because I consider that, properly understood, the maxim ...should be confined to the law of contracts and conveyances, Inow march it off and dismiss it from this case."

Nowhere in the other judgments in Smith v. Jenkins or thosedecisions that came after it is reliance placed upon the maxim. Suchcriticism of Smith v. Jenkins as is based upon an attack on the placeof the maxim in the law of tort seems to me therefore to bemisplaced.

Likewise, criticism that assumes that the Court, in Smith v.Jenkins, was simply applying its own notions of public policy shouldbe treated with caution. As Barwick c.J. pointed out in that case,considerations of public policy playa part in the decision whether toimpose or exact a duty of care. Essentially, Smith v. Jenkins turnson the unwillingness of courts to find such a duty in circumstanceswhere, although there is a relationship between the parties whichordinarily would give rise to a duty of care, the injury to theplaintiff arises from a serious criminal act in which both plaintiffand defendant participated. That is the basis for the decision inSmith v. Jenkins and that is the extent of its operation.

When the true scope of Smith v. Jenkins is fully understood,much of the criticism directed at the decision falls away. It is not ofwide operation; in particular, it does not preclude recovery in caseswhich involve no more than a breach of a regulation, or which turnon a negligent act or omission which is merely incidental to thecommission of an offence. It gives effect to the view, seen asreflecting prevailing community standards, that a person who isinjured while participating in conduct which has been identified bythe criminal law as inimical to society should not be entitled to thecompensation that the civil law ordinarily provides. To say this isnot to summon back the maxim which Windeyer J. "marched off"in Smith v. Jenkins. It is, however, to acknowledge the particularpolicy considerations that underlie that decision. No doubt, in

(68) (1970) 119 C.L.R., at p. 414.

H. C. OF A.1990·1991.

'--.,-'

GALA

v.PRESTON.

Toohey J.

292 HIGH COURT [1990-1991.

H. C. OF A.1990-1991.~

GALA

V.

PRESTON.

Toohey J.

particular cases questions will arise as to the seriousness of theconduct involved and the sufficiency of the connexion between thatconduct and the act or omission said to give rise to a cause ofaction. But that will be a matter for elucidation in those cases: seeSwanton, "Plaintiff a Wrongdoer: Joint Complicity in an IllegalEnterprise as a Defence to Negligence", Sydney Law Review, vol. 9(1981) 304, at p. 329.

Smith v. Jenkins remains as a statement of the unwillingness ofthe law to lend its support to the recovery of damages by a plaintiffwho suffers injury while participating with the defendant in thecommission of a serious criminal act, when that act is the act reliedupon to found a cause of action. In those circumstances, a duty ofcare is held not to exist, not because of the difficulty of defining astandard of care but because of the participation by the parties inthe criminal activity which resulted in the injury. Smith v. Jenkinsis sound law and should not be overruled. It cannot be distinguishedon the facts of the present case; those facts involve a seriouscriminal act from which the claim arises. The appeal should beallowed.

Appeal allowed with costs.Set aside the orders of the Full Court of the

Supreme Court of Queensland and, in lieuthereof, order that the appeal to that Court bedismissed with costs.

Solicitors for the appellants, VA. J. Byrne & Co.Solicitors for the respondents, Carswell & Co.

R.A.s.

Gala

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