Jackson v Harrison [1978] HCA 17; (1978) 138 CLR 438 (16 May 1978)

HIGH COURT OF AUSTRALIA

JACKSON v. HARRISON [1978] HCA 17; (1978) 138 CLR 438

Negligence

High Court of Australia
Barwick C.J.(1), Mason(2), Jacobs(3), Murphy(4) and Aickin(5) JJ.

CATCHWORDS

Negligence - Public policy - Driver of motor car disqualified from driving - Passenger aware of disqualification - Joint commission of offence - Whether defence to action by passenger for damage sustained through driver's negligence.

* Section 91 (1) of the Motor Vehicles Act 1959 (S.A.) provides: "A person shall not drive a motor vehicle on a road while his licence is suspended or while he is disqualified from holding and obtaining a licence. Penalty: Imprisonment for six months."

HEARING

Adelaide 1977, September 1-2.
Sydney, 1978, May 16. 16:5:1978
APPEAL from the Supreme Court of South Australia.

DECISION

1978, May 16.
The following written judgments were delivered:-
BARWICK C.J. Two young men, the appellant and the respondent, respectively appeal, had both been disqualified from driving a motor vehicle on a public road in South Australia, their licences in that respect having been suspended by a court. The respondent's licence had been suspended because of his conviction of a criminal offence and that of the appellant for a breach of the traffic laws. But the appellant owned a Morris Isis car. The young men, who lived in Adelaide, formed the intention of taking the car for a "jaunt" to Port Augusta over a weekend. It may be, though from so much of the evidence given at the trial of the action brought by the respondent against the appellant which has been reproduced for the purposes of this appeal it is not clear, that the plan to do so was conceived before the respondent's licence was suspended. But, whether this was so or not, they did agree that, though each knew of the suspension of the other's licence and that neither could lawfully use the appellant's car by driving it on a public road, they would do so for the weekend, sharing the driving, each doing so in turn. As the car was at the home of the appellant at Semaphore within the metropolitan area of the city of Adelaide, it was agreed between them that the respondent would tell the parents of the appellant, who were aware of the suspension of the respondent's licence as well as of that of the appellant, that he, the respondent, had had his licence restored. It was also agreed that the respondent would drive the car away from the appellant's parents' home and whilst it was in the metropolitan area where police might observe the appellant if he were driving it. (at p440)

2. In fact, the respondent did so inform the parents of the appellant and did drive the car as thus planned. Also as planned, the respondent and the appellant from time to time drove the car on the public roads, travelling from Adelaide to Port Augusta. I need not detail what they did there, though the extent to which they consumed liquor may have played its part in the ultimate result. Suffice it to say that whilst the car was travelling easterly on the Quorn-Port Augusta Road near Stirling North, due to the appellant's negligence in driving the car, it swerved across the roadway and collided with vehicles stationary on the unsealed verge of the roadway. Both young men were injured. (at p440)

3. The respondent sued the appellant in the Supreme Court of South Australia for damages, asserting the causal negligence of the appellant. The Supreme Court (Mitchell J.), finding that the appellant was driving the car at the time and that he did so negligently, assessed the damages for the respondent's injuries in the sum of $30,500. (at p441)

4. But the learned judge found that "the venture upon which they set out was to drive to and from Port Augusta, each intending to drive some of the way, notwithstanding that he was disqualified from holding a driver's licence and each being well aware that the other would also be committing an offence of driving under disqualification". Because of the provisions of the Motor Vehicles Act, 1959 (S.A.), as amended, and of the provisions of the Justices Act, 1921 (S.A.), as amended, the judge said: "I have no doubt that each of the plaintiff and the defendant could have been successfully prosecuted for the offence of driving whilst his licence was suspended at any time during the trip to and out of Port Augusta when either of them was driving the vehicle." The penalty for such an offence is imprisonment for six months. "So that at the time of the accident each of them was committing the offence of driving under disqualification; this was a joint venture and each was committing the same offence at all times during the trip to and out of Port Augusta." (at p441)

5. With these findings I fully agree. Indeed, throughout the subsequent proceedings in the case, I do not understand them to have been challenged. (at p441)

6. Having carefully reviewed a number of decisions, including the decision of this Court in Smith v. Jenkins [1970] HCA 2; (1970) 119 CLR 397 the judge concluded: "The instant case seems to me to fall squarely within the class in which the law refuses to recognize a duty of care by one wrongdoer to another." Accordingly, there was judgment for the appellant. (at p441)

7. On appeal from that decision, the Full Court of the Supreme Court by majority (Bray C.J. and King J., Hogarth J. contra) set aside the judgment and entered a verdict and judgment for the respondent for the sum of $30,500 (1977) 16 SASR 182 . (at p441)

8. The appellant now seeks by appeal to this Court to restore the verdict in his favour entered by the trial judge. (at p441)

9. Because of the views expressed in the Supreme Court, it will be necessary to canvass some of the decided cases and to endeavour to express the principles to be applied to the facts as found at the trial. (at p441)

10. Any such review must begin with Smith v. Jenkins, a unanimous decision of this Court, binding both as to its result and the principles common to the reasons of a majority of the participating Justices upon the courts of the States. The facts of that case are important. The plaintiff and the driver of the car, whom he sued for damages for injuries received through the driver's negligent management of the car, had joined in knowingly using someone else's car in breach of a section of the Crimes Act 1958 (Vict.). For such an illegal use of a car, the penalty was a fine or imprisonment. (at p442)

11. This Court held the plaintiff had no cause of action in negligence against the driver. The ground on which the Court was unanimous in reaching that conclusion was that the plaintiff was injured whilst he and the driver were jointly participating in an act which was a punishable offence, in that case a breach of a Crimes Act. The jurisprudence explaining that ground was not expressed by each Justice in identical terms: but that circumstance, about which I shall say something, in no wise detracts from the principle, unanimously adopted, namely, that the joint participation in the commission of the offence in that case precluded either of the participants from recovering from the other damages for injuries received in the performance of the offence. Perhaps the simplest statement of the principle is to be found in Lord Lyndhurst's judgment in Colburn v. Patmore [1834] EngR 55; (1834) 1 CM & R 73, at p 83 [1834] EngR 55; (149 ER 999, at p 1003) : "I know of no case in which a person who has committed an act, declared by the law to be criminal, has been permitted to recover compensation against a person who has acted jointly with him in the commission of the crime." It is evident that Lord Lyndhurst referred to compensation for something occurring in the course of or related to the commission of the offence. With his Lordship's view, two of the Barons of the Exchequer, Bolland and Alderson, agreed and a third (Gurney) entertained "a strong opinion" (1834) 1 CM & R, at p 84, (149 ER, at p 1004) . (at p442)

12. What was not decided in Smith v. Jenkins [1970] HCA 2; (1970) 119 CLR 397 was a definitive description of the nature of the offences to which the stated principle applied. It is convenient, in my opinion, in this case to discuss that question though, in my opinion, the offence in the commission of which these parties participated was in socially essential respects of the same order as the offence in Smith v. Jenkins. (at p442)

13. However, before proceeding further, I should refer to the differing explanatory expressions in Smith v. Jenkins of the stated principle. (at p442)

14. My view, compendiously expressed, was that the relationship of the participants in the commission of the offence was not one which gave rise to a duty of care the one to the other in relation to the performance of the acts making up the offence: this was so, in that case, not simply because either was doing an illegal act but because they were participating in the commission of the same offence. I did not favour the view that the Court in point of public policy should deny its assistance to the enforcement of the breach of an obligation acknowledged to exist: rather, the common law, which the plaintiff had called in aid, refused to create a duty of care as between the participants in the offence in relation to things done or omitted in the course of committing the offence. They were joint adventurers in crime and not neighbours in the sense of Donoghue v. Stevenson (1932) AC 562 . (at p443)

15. In substance, in my opinion, Kitto J. shared that view. He accepted the formulae of Scrutton L.J. in Hillen v. I.C.I. (Alkali) Ltd. (1934) 1 KB 455, at p 467 . Such participants in the offence had "no legal rights inter se" (1970) 119 CLR, at p 403 . (at p443)

16. Perhaps, with due respect, it is not so clear whether Windeyer J. adopted a single explanation. His several possible explanations may be read (1970) 119 CLR, at p 422 . (at p443)

17. As I read Owen J.'s reasons for judgment, he shared the view that the plaintiff failed because the act of which complaint was made in the action occurred in the commission of an offence against the criminal law in which the plaintiff was at the time participating: the offence was committed jointly and in concert: "... the law does not recognize the relationship between two criminals who are jointly engaged in carrying out a criminal venture as being one which gives rise to a duty of care owed by the one to the other in the execution of the crime" (1970) 119 CLR, at p 425 . (at p443)

18. Walsh J., whilst not attempting a universally applicable formula, said (1970) 119 CLR, at p 432 : "The relationship of the parties and the act of which the respondent complains were such that no right of action based upon the manner in which that act was performed could arise." (at p443)

19. Thus, it can properly be said, in my opinion, that there was a clear majority of the Court for the explanation that the relationship of one participant to another in the commission of an offence is not such as to give rise to a duty of care inter se in relation to acts done in the commission of the offence. (at p443)

20. It was quite clear that the Court did not limit its decision to acts in the commission of the offence which were causally related to the injuries received. It was clear from the decision of the case that the principle did extend to acts done in the commission of the offence, though the immediate cause of the injuries was not part of the agreement to participate in the use of the car, nor itself an element in the illegality of that use. (at p444)

21. The factual situation with which the Court was there dealing called for no discussion of the limits to the range of acts which might fall within the scope of the decision. Nor, it could probably be said, in my opinion, do the facts of the instant case. The act of which the respondent complained in this case was done in using the car in the agreed manner, i.e. by unqualified drivers, just as the act complained of in Smith v. Jenkins [1970] HCA 2; (1970) 119 CLR 397 was done in the illegal use of the car. But, having regard to what has been said in the reasons for judgment of the Full Court and what has been written in legal commentary, it is appropriate, in my opinion, that something be now said on the point. Also, it would be appropriate to say something as to the relationship of the act of which complaint is made to the offences the object of the joint venture. This is particularly so because decisions of the Supreme Court of New South Wales have to some extent entered into that matter; that is to say, as to the extent of the area of activity within which, because of the common illegal purpose, the acts of the participants do not give rise to a duty of care. I shall first turn to the latter matter. (at p444)

22. In Godbolt v. Fittock (1963) SR (NSW) 617 , the Supreme Court of New South Wales held that one of two people who had joined together to steal cattle was not entitled to recover damages from the other of them for injuries received by the negligence of that other in driving the vehicle by which stolen cattle were being conveyed for disposal. Quite properly, in my opinion, no narrow view was taken of the scope of the criminal venture. It was not limited to the act of theft which included the removal of the goods from the owner's possession but included at least the subsequent disposal of the stolen property. The result of the case might be expressed as denying a cause of action in respect of an act done in the performance of the venture, treating the disposal of the stolen cattle by taking them to market as part of its illegality; or it might be expressed as denying a cause of action in respect of an act done in furtherance of the venture, treating it as complete when the theft itself was complete: that is to say, on that view a cause of action was denied in respect of an act incidental to the complete accomplishment of the common purpose. Sugerman P. treated the act there complained of as "directly connected with the execution of the criminal purpose" (1963) SR (NSW), at p 624 . (at p445)

23. In Bondarenko v. Sommers (1968) 69 SR (NSW) 269 , several people combined to take and use a motor car in breach of s. 154A of the Crimes Act, 1900 (N.S.W.). In the course of using it they raced another car during which the car, which had thus been taken, overturned, injuring one of those who had combined to take and use it. The Supreme Court affirmed the view that the injured person was without remedy because of the illegality of the taking and the use of the car. Here again no narrow view was taken of the scope of the joint venture. The racing of the car was accepted as part of the illegal use. Indeed, the trial judge in the case had treated the racing of the car as a purpose of the joint venture. But, in any case, the racing of the car in the circumstances in which it was carried out, which was the cause of its overturning, could be said to be directly related to the taking and use which formed the offence under the Crimes Act. (at p445)

24. It seems to me that where there is a joint venture to do an act punishable by fine or imprisonment, no narrow or pedantic view should be taken of the nature and scope of the arrangement between the parties when applying the principle of Smith v. Jenkins and that the consequence to one of the participants of any act done in furtherance of the arrangement or in obtaining the benefit of having carried it out should not give rise to a cause of action. The relationship of those participants should not be regarded as giving rise to relevant rights or duties. The public policy which the denial of a cause of action in such circumstances is designed to serve is not satisfied if the miscreant is not denied rights against his co-participant in the commission of the offence in respect of acts related to that commission. (at p445)

25. Clearly, in my opinion, the principle of Smith v. Jenkins extends to all acts done in the course of the commission of the offence. In my opinion, it also extends to all acts done in furtherance of that purpose to commit the offence, e.g. acts done to reap the benefit of the crime. It may be sufficient in most cases to say that the act complained of was directly connected with the commission of the offence, though this limitation may possibly in some circumstances prove too confining. Because the principle is limited to the relationship inter se of the participants in the commission of an offence, it may be proper to include acts indirectly connected with the accomplishment of the joint purpose. However, in this connexion Lord Asquith's remarks in National Coal Board v. England (1954) AC 403, at p 428 must be borne in mind although they were made in a somewhat different connexion. At present I am content to extend the area within which the relationship of co-adventurers in a criminal offence will not give rise to mutual duties to acts directly related to the commission of the offence and to the gathering of the fruits thereof. (at p446)

26. There remains for discussion, as it seems to me, two matters: first, the place the construction of the statute creating a cause of action or of the statute creating the offence takes in deciding whether there is a cause of action between the participants in committing the offence and, secondly, to what offences does the principle extend. (at p446)

27. It is important in relation to the first of these matters to point out that the principle of Smith v. Jenkins [1970] HCA 2; (1970) 119 CLR 397 is essentially limited to the case where plaintiff and defendant have been parties to the commission of an offence and the act complained of is in some way connected with the commission of the offence. It has nothing to say on the radically different question whether illegal conduct on the part of a plaintiff precludes success upon a cause of action against a defendant unconnected with that illegal conduct. Reliance has been placed in the discussion in this case of what was decided and said in Henwood v. Municipal Tramways Trust (S.A.) [1938] HCA 35; (1938) 60 CLR 438 . But, in my opinion, that decision and what was there said about the construction of the statute is not directly relevant to the principle of Smith v. Jenkins. In Henwood's Case, a plaintiff was in breach of a regulation in placing his arm where he did in relation to the train carriage in which he was riding. He was not for that reason disentitled to succeed against a defendant who was in breach of an acknowledged duty of care towards him. His cause of action arose at common law and not out of any statute. Thus no question arose in that case of the construction of a statute creating the cause of action. But it was held to be material to consider whether the statutory provision creating the offence intended a denial of some civil remedy to a person in breach of it. (at p446)

28. Windeyer J. in Smith v. Jenkins, in a passage of his reasons with which I agreed, pointed out that in such a case as that with which Smith v. Jenkins dealt, one might need to consider whether the statute creating the offence of which the parties were in breach gave a civil remedy to a person injured in committing the breach - a quite unlikely possibility, in my opinion. But the two references to the construction of the statute - that in Henwood's Case and that in Windeyer J.'s remarks in Smith v. Jenkins are, in my opinion, quite disparate and unconnected. In a case falling within the principle of Smith v. Jenkins, there is no need to construe the statutory provision to ascertain whether it intends to deny a civil remedy: but rather to ascertain whether it gives a remedy. Further, the principle of Smith v. Jenkins extends to a joint venture to commit a common law offence, though in these times offences predominantly derive from statute. A defence of illegality, i.e. that the plaintiff at the time his cause of action arose was in breach of a statute, is in my opinion in a different field of discourse altogether from a defence that the plaintiff has no cause of action against a defendant because of their joint participation in an illegal activity. Reasoning apt in the former connexion is not, in my opinion, directly appropriate to the latter. (at p447)

29. In the discussion of the instant case in the Supreme Court and in this Court, reference has been made to the decision of the Supreme Court of New South Wales in Andrews v. Nominal Defendant (1965) 66 SR (NSW) 85 . Walsh J., then a member of that Court, delivered the leading judgment. The question arising in that case upon the demurrer to the sixth plea was whether the fact that the car had been used without having been insured, contrary to s. 7 (1) of the Motor Vehicles (Third Party Insurance) Act, 1942-1962 (N.S.W.), was an answer to a claim made under s. 30 (1) of that Act. In the circumstances of the case, there was no other cause of action available to the plaintiff, though to make it out negligence on the part of the driver of the car had to be established. Walsh J. pointed out that it was not alleged that the plaintiff was the owner or entitled to the immediate possession of the car. Thus the case as under the sixth plea was not one in which the plaintiff was said to be in breach of the obligation to insure the car, though he was in breach of s. 7 (1) in that he had authorized the use of the car which was in fact and to his knowledge uninsured. It was thus a case of a cause of action exclusively occurring under a statute which also created offences. His Honour could not construe s. 30 (1) under which the claim was made by the plaintiff as available only to persons who were not in breach of s. 7 (1) of the Act. He relied upon the general principle that a statutory remedy is available to a person who qualifies according to its terms notwithstanding that he is in breach of some provision of the statute, unless the statute evinces an intention for that reason to deprive him of the benefit of the cause of action. The contrast between that principle and that availed of in Smith v. Jenkins [1970] HCA 2; (1970) 119 CLR 397 is quite evident and needs no demonstration. (at p448)

30. But the reasons for judgment in Andrews' Case indicate that the purpose of the creation of the offence in the statute in s. 7 (1) there material was merely the insurance of the vehicle. It was unrelated to the safety and health of the individual or the protection of property. It was merely machinery to effect the legislative intent to secure the insurance of the car. The same could be said of the offence created by s. 6 of the Motor Traffic Act, 1909-1961 (N.S.W.) which was the subject of the seventh plea. Consequently, the demurrer to that plea suffered the same fate as the demurrer to the sixth plea. (at p448)

31. It thus seems to me, as evidently it did to Walsh J., that the decision in Andrews' Case has no bearing on the decision of Smith v. Jenkins (1970) 119 CLR, at p 434 . It has no bearing, in my opinion, upon the decision of the instant case. As I have said, in my opinion illegality as a basis for deprivation of the benefit of a cause of action is in a different universe of discourse to the principle of Smith v. Jenkins. (at p448)

32. Henwood's Case [1938] HCA 35; (1938) 60 CLR 438 ; Cakebread v. Hopping Brothers (Whetstone) Ltd. (1947) 1 KB 641 ; National Coal Board v. England (1954) AC 403 and Andrews' Case (1965) 66 SR (NSW) 85 all relate solely to the conduct of the plaintiff. Public policy might well have caused the courts to go further than they have in allowing the plaintiff's illegal acts related to the injuries sustained to deprive him of the benefit of an accrued cause of action. But, as Henwood's Case illustrates, the courts have in general not followed that course. I did not favour it as an explanation of the principle of Smith v. Jenkins. The public policy of depriving a plaintiff of the benefit of an acknowledged cause of action because of illegality on his part has been left to the expression of the legislature. Hence the need to find the denial of the benefit of the cause of action in the construction of the statute. In this connexion, some hankering after a causal relationship between the act causing injury and the illegality is sometimes evidenced. But, in my opinion, causation is not a necessary element, even in the case of an illegal act on the part of the plaintiff. If the plaintiff's own illegal act were the cause of the mischief of which he complains, the question might have arisen whether that circumstance was disqualifying or merely ground for reduction of the damages suffered because of the plaintiff's own contribution to the result. But, if the latter is the only consequence, as the decisions would suggest, the illegality of the causative acts seems to add nothing. The contribution would be exacted because the plaintiff's act itself was causally related to the event. (at p449)

33. It is probably convenient at this point to refer to this Court's decision in Progress & Properties Ltd. v. Craft [1976] HCA 59; (1976) 135 CLR 651 . My own view of the nature of the joint venture in that case sufficiently appears from what I then wrote. The majority of the Court seem to have taken the view that there was no common action by the hoist driver and the plaintiff but only separate acts on the part of each. (at p449)

34. But the majority seems also to have taken the view that the principle of Smith v. Jenkins has no application to the breach of a regulation designed to secure the safety of the plaintiff. I confess, with the utmost respect, not to understand why this should be so. Reasoning in Cakebread's Case and some expressions in National Coal Board v. England would lead to such a conclusion in cases where it is the illegal act of the plaintiff which is said to preclude the enforcement of a cause of action. That conclusion has been accepted because the construction of the statute giving the cause of action was under consideration. The place the reasoning occupies in such a case is best seen, in my opinion, in Lord Cohen's judgment in Cakebread's Case (1947) 1 KB, at pp 654-655 . But, as I have said, those cases were concerned, not with rights inter se of participants in illegal conduct, but with the consequence of illegal conduct on the part of a plaintiff relying on a statutory provision created for his benefit. (at p449)

35. In both Cakebread's Case (1947) 1 KB 641 and National Coal Board v. England (1954) AC 403 , the court was concerned with illegal acts of a plaintiff. It was not concerned with the relative rights of the participants in an offence. In the former class of case an intention on the part of the legislature to exclude the plaintiff was sought. Windeyer J. distinguished the two situations by what he said in Smith v. Jenkins (1970) 119 CLR, at p 416 : "The question here is not, Is the plaintiff precluded from recovering because he was a wrongdoer? It is, Had the defendant a duty to the plaintiff to carry out carefully the unlawful enterprise on which they were jointly engaged?" The need to construe the statute to find a depriving intention on the part of the legislature thus arose. The nature of the statute and the circumstance that it was for the protection of the plaintiff were, of course, potent factors in that construction. The reasoning in these cases seems to me to be inapt for the decision of a case of joint participation in an alleged venture. (at p450)

36. It is noteworthy in this connexion that the fact that the factory regulations had been enacted for the protection of workmen did not deter Scrutton L.J. from denying the existence of a duty in the employer where a workman had himself breached the regulation: see Hillen's Case (1934) 1 KB, at p 467 . The policy of enforcing the regulation, passed for the benefit of a class of whom the plaintiff was one, appears to have been present to the minds of the members of the Court of Appeal. Further, the fact that the legislation was designed for the benefit of a class of whom the plaintiff was one does not seem to have deterred the House of Lords in Imperial Chemical Industries Ltd. v. Shatwell [1964] UKHL 2; (1965) AC 656 . It would seem difficult to my view to resort to the reasoning in the cases of Cakebread and National Coal Board v. England in which an employer and his workman conspired together to breach the statute, albeit a statute upon breach of which a civil cause of action could otherwise be founded because the statute was intended for the safety and health of the workman. It is worth remarking that the cause of action founded upon the breach of factory legislation is the creation of the courts. It is concluded in such a case from the nature and purpose of the statute that the legislature intended that the penalty provided for the breach was not the only consequence of the breach. It would seem difficult, in my opinion, to attribute to the legislature, absent express or compelling provisions, an intention to create a cause of action between participants jointly engaged in the breach of its relevant terms. Certainly no such conclusion is suggested by Christiansen v. Gilday (1948) 48 SR (NSW) 352 . (at p450)

37. This leads me to deal with the second question, namely, what are the limits on the nature of an offence the commission of which will fall within the principle of Smith v. Jenkins? (at p450)

38. I have already indicated that the explanation of the principle was that the Court did not in point of public policy deny the plaintiff redress for breach of an acknowledged duty of care. The principle was to deny the existence of any relevant duty of care. That denial was itself an expression of public policy. That policy is that there shall be no civil rights between those committing an offence in respect of acts connected with that commission. (at p450)

39. It seems to me that if the community takes the view that its law is of such significance to the community and its welfare that its breach should be visited with punishment, it might be difficult in logic to place any offence so created outside the policy which finds its expression in the principle of Smith v. Jenkins [1970] HCA 2; (1970) 119 CLR 397 . It cannot matter that the community's decision through the legislature is expressed in a valid regulation rather than in a statute. After all, to be valid the regulation must be within the scope of the authority given by the legislature. The principle cannot be limited to offences created by Acts. Nor can it be limited to offences the breach of which is necessarily visited with imprisonment. Bray C.J. was correct to say in his reasons for judgment in the instant case that I did not intend so to limit the principle in what I wrote in Smith v. Jenkins. Nor can the matter be resolved by describing the offence as merely a traffic offence. In the instant case, the seriousness of the offence should not be so minimized. A motor car on a public road in unqualified or irresponsible hands can be a lethal instrument. The road toll, not merely in number of deaths but in the number of injured persons and the nature and extent of their injuries, is tragic evidence of that fact. The disqualification of a person to drive a car because of lack of skill or because of irresponsible tendencies is a means whereby the safety and health of the community is secured. I cannot accept that the protection of property or possession of a motor vehicle is of more consequence to the community than the safety and health of its citizens: that the principle of Smith v. Jenkins extends to theft or its equivalent but not to conduct endangering health or life. (at p451)

40. Sugerman P. in Godbolt's Case (1963) SR (NSW) 617 did not think that every mutual disregard of some statutory regulation of conduct necessarily attracted the same consequence in point of public policy as did the facts of the case before him. Windeyer J. in Smith v. Jenkins offered some observation of a not dissimilar kind. (at p451)

41. However logical a contrary view might seem, I think it must be conceded that there are offences to which the principle does not apply. I can imagine such: e.g., an obligation to exhibit a number-plate on a car or a learner's plate. Also there are many offences the nature of which makes it highly unlikely that a joint venture to commit them could occur. However, having given the matter a deal of consideration, I am myself both unwilling and unable to specify by a verbal formula what offences punishable by fine or by imprisonment are outside the scope of the principle of Smith v. Jenkins. As I have indicated, I would not exclude offences created under factory and shop and like legislation. But, in my opinion, at least offences which have been created to protect the safety and health of individuals or property are in general within the scope of the principle. (at p452)

42. I have been led in this case to write beyond the occasion. For clearly enough, in my opinion, the offence of driving the car in this case fell within the narrow compass of an offence designed to secure the safety and health of the public. The case is not one in which illegality on the part of the plaintiff is set up as a defence to a cause of action. The case is one, as the trial judge expressly found, of one of two participants in a joint illegal venture seeking to assert rights against his co-participant in respect of an act done in the course of the accomplishment of that joint venture. The Primary judge was correct, in my opinion, in entering a verdict for the defendant. (at p452)

43. The appeal should be allowed. (at p452)

MASON J. This case is to be decided by reference to the principle so recently enunciated and applied by this Court in Progress & Properties Ltd. v. Craft [1976] HCA 59; (1976) 135 CLR 651 - see especially the judgment of Jacobs J. (1976) 135 CLR, at p 668 . After a consideration of all that was said and decided in Smith v. Jenkins [1970] HCA 2; (1970) 119 CLR 397 , the Court then rejected the view that in a joint criminal enterprise no duty of care is owed to each other by the participants. In my opinion no sufficient reason has been shown for discarding Progress & Properties Ltd. v. Craft and for embracing in lieu of it an inflexible doctrine which is not only at variance with the philosophy underlying Henwood v. Municipal Tramways Trust (S.A.) [1938] HCA 35; (1938) 60 CLR 438 but which can be in some instances productive of severe and unjust consequences. (at p452)

2. In that case the Court held, in the words of Latham C.J. (1938) 60 CLR, at p 446 , that "there is no general principle of English law that a person who is engaged in some unlawful act is disabled from complaining of injury done to him by other persons". As the Chief Justice went on to say, "Other persons still owe to him a duty to take care, the extent of that duty being determined by the circumstances of the case which create the duty". The correctness of this decision was confirmed by Smith v. Jenkins which proceeded on the footing that the maxim ex turpi causa non oritur actio has no place in the law of torts. (at p452)

3. If a plaintiff engaged in the performance of an illegal activity who is injured through the negligence of another may recover damages for his injury from that other, even though the latter's conduct involved no illegality, there is no evident reason why a plaintiff should be held to be necessarily disentitled when he is injured in circumstances in which he and the defendant are both engaged in the commission of an illegal enterprise. Although the two cases are different, the drawing of a distinction between them is to place the innocent party at a disadvantage compared with the wrongdoer. The elimination of civil liability between the participants in a joint criminal enterprise cannot be sustained on the ground that it is a deterrent against criminal activity; it might with equal force be put forward as an inducement to such activity. Even if punishment of illegal conduct is not a matter for the exclusive attention of the criminal law, as I think it should be, a policy of deterrence directed against the participants in a joint criminal enterprise but not against the individual criminal makes very little sense. In point of policy the application of the ex turpi causa doctrine would be less susceptible to criticism. (at p453)

4. A rule so absolute in its terms as to preclude the bringing of an action by a passenger in a motor vehicle who is injured through the negligence of a driver when the passenger knows that the driver is committing a breach of the law in driving the vehicle because he is unlicensed or because the vehicle's equipment does not comply in all respects with motor traffic requirements is too Draconian to command acceptance. There is nothing inherent in the character of an unlicensed driver which is inconsistent with his owing a duty of care to other road users and to his passengers who happen to be engaged in unlawful activity. However, it is said that if the passenger acquiesces or participates in the illegal use of the car no such duty is owed. This would perhaps be more readily comprehensible if it were based on the defence of volenti non fit injuria, but it travels beyond that and seeks to deny a remedy on other grounds when the facts fall short of volenti, a defence which might otherwise be thought to be appropriate. (at p453)

5. The denial of any remedy to a plaintiff who is injured in a joint illegal enterprise is not a result which would be achieved by an application of the doctrine of contributory negligence. This doctrine has now declined to the level of apportionment. (at p453)

6. It is quite incorrect to assert that Smith v. Jenkins decided that the participants in a joint illegal enterprise owe no duty of care to each other. It decided no such thing. The case was limited to its particular facts. They involved the illegal use of a motor vehicle contrary to s. 81 (2) of the Crimes Act 1958 (Vict.). The members of the Court assigned a variety of reasons for arriving at this result, no particular reason commanding universal or even majority acceptance. (at p454)

7. Barwick C.J. thought that no duty of care arises "as between persons jointly participating in the performance of an act contrary to the provisions of a statute making their act a crime punishable by imprisonment" (1970) 119 CLR, at p 400 . Kitto J. took a different approach, acknowledging that "the case is not one where the illegality that is in question has prevented the creation of a relationship upon which the party claiming damages relies as the source of a duty of care" (1970) 119 CLR, at p 402 , but asserting that "persons who join in committing an illegal act which they know to be unlawful ... have no legal rights inter se by reason of their respective participations in that act" (1970) 119 CLR, at p 403 . Owen J., though he said that no duty of care arises, based this view on the inability of the Court to determine the standard of care appropriate to a wrongdoer engaged with the plaintiff in a criminal enterprise (1970) 119 CLR, at p 425 . Windeyer J. (1970) 119 CLR, at p 419 spoke of the absence of a duty of care, but later he formulated the rule in these terms (1970) 119 CLR, at p 422 :

"If two or more persons participate in the commission of a
crime, each takes the risk of the negligence of the other or
others in the actual performance of the criminal act. That
formulation can be regarded as founded on the negation of
duty, or on some extension of the rule volenti non fit injuria,
or simply on the refusal of the courts to aid wrongdoers."

Walsh J. said (1970) 119 CLR, at pp 433-434 "... the relationship in which the parties have placed themselves is not one to which the law attaches a right of action for negligence. The refusal to recognize that right may be regarded, I think, as an application, in a particular situation, of the concept of public policy". These observations are to be contrasted with those of Barwick C.J. who explicitly rejected public policy as a sound basis for the decision (1970) 119 CLR, at p 400 . Walsh J. went on to say (1970) 119 CLR, at p 434 that the principle denying a remedy to a plaintiff who is a participant in a joint illegal enterprise "need not be applied with such rigidity that in every case in which the parties have been in some respect in breach of the law, the relationship between them must be regarded in the same way". (at p454)

8. I mention this only for the purpose of demonstrating that Smith v. Jenkins [1970] HCA 2; (1970) 119 CLR 397 is not a decision which on its facts can be decisive of this case and that in view of the diversity of reasoning expressed in the judgments there was no reason why the Court should have been constrained to adopt a particular view in Progress & Properties Ltd. v. Craft [1976] HCA 59; (1976) 135 CLR 651 . (at p455)

9. To the extent to which the judgments in Smith v. Jenkins express support for the rule that in a joint illegal enterprise no duty of care is owed to each other by the participants, the judgments do not decide whether any distinction is to be drawn between degrees of illegality so as to exclude from the operation of the proposed rule cases of minor or lesser illegality. If such a rule were to have a universal operation its application would, in some instances at least, be Draconian, as I have said. If the rules were to have a narrower operation there arises the difficulty, which I regard as insoluble, of formulating a criterion which would separate cases of serious illegality from those which are not serious. Past distinctions drawn between felonies and misdemeanours, malum in se and malum prohibitum, offences punishable by imprisonment and those which are not, nonstatutory and statutory offences offer no acceptable discrimen. And the criterion based upon the difference between federal and provincial law which seemed to find favour in the Canadian decision of Tallow v. Tailfeathers (1973) 44 DLR (3d) 55 has no place in Australia. Nor is guidance upon this question to be found in the provisions of the particular statute which creates the offence because legislatures do not in enacting these provisions turn their attention to the availability of civil remedies. (at p455)

10. But it is not merely a matter of stating that a suitable criterion cannot be postulated. What is more important is that the existence of the duty of care is primarily based on the concept of foreseeability. To deny the existence of the duty in every case in which the parties are engaged in a joint illegal enterprise is to discard foreseeability as a criterion. The appellant's argument would have greater force if it attempted to assert that the unlawful conduct of the parties, whether it be serious or slight, is relevant to the existence of the duty to the extent to which it goes to foreseeability. But the argument travels more widely than that. (at p455)

11. If a joint participant in an illegal enterprise is to be denied relief against a co-participant for injury sustained in that enterprise, the denial of relief should be related not to the illegal character of the activity but rather to the character and incidents of the enterprise and to the hazards which are necessarily inherent in its execution. A more secure foundation for denying relief, though more limited in its application - and for that reason fairer in its operation - is to say that the plaintiff must fail when the character of the enterprise in which the parties are engaged is such that it is impossible for the court to determine the standard of care which is appropriate to be observed. The detonation of an explosive device is a case of this kind. But the driving of a motor vehicle by an unlicensed and disqualified driver, so long as it does not entail an agreement to drive the car recklessly on the highway (see Bondarenko v. Sommers (1968) 69 SR (NSW) 269 ), stands in a somewhat different position. In this case the evidence indicates that the participants contemplated that the vehicle would be driven carefully - an accident or untoward event might, as in fact it did, lead to discovery of their breach of the law. It is not suggested that either party lacked the experience or ability to drive carefully - that they were unlicensed was due to their having been disqualified as a result of earlier traffic offences. (at p456)

12. It is for these reasons that I consider the law to have been correctly stated by Jacobs J. in Progress & Properties Ltd. v. Craft. (1976) 135 CLR, at p 669 . A plaintiff will fail when the joint illegal enterprise in which he and the defendant are engaged in such that the court cannot determine the particular standard of care to be observed. It matters not whether this in itself provides a complete answer to the plaintiff's claim or whether it leads in theory to the conclusion that the defendant owes no duty of care to the plaintiff because no standard of care can be determined in the particular case. (at p456)

13. Accordingly, I am of opinion that the appeal from the Full Court of the Supreme Court should be dismissed. (at p456)

JACOBS J. The respondent sued the appellant for damages resulting from the negligent driving of a motor vehicle in which the respondent was a passenger. Negligence and the facts that the respondent was a passenger and the appellant the driver were found proved by the trial judge. However Mitchell J. held that the respondent was not entitled to recover damages for his injuries suffered as a result of the negligent driving of the appellant because at the time of the occurrence the appellant was committing the offence of driving the motor vehicle while under disqualification (Motor Vehicles Act, 1959, s. 91 (5)), the respondent knew that the appellant was committing that offence and was a joint participant in the commission of that offence. A majority in the Full Court took a different view and held that these circumstances did not disentitle the respondent from recovery of damages, and directed judgment in favour of the respondent (1977) 16 SASR 182 . The question for us is - which view is correct? (at p457)

2. The recent decision of this Court in Progress & Properties Ltd. v. Craft [1976] HCA 59; (1976) 135 CLR 651 was not before the Supreme Court of South Australia when it gave its decision. The basis of the principle whereby in some cases a defence of illegality may be raised in an action for negligence was there examined. In my reasons for judgment, with which Stephen, Mason and Murphy J.J. agreed, I said (1976) 135 CLR, at p 668 :

"A plea of illegality in answer to a claim of negligence is a
denial that in the circumstances a duty of care was owed
to the injured person. A duty of care arises out of the
relationship of particular persons one to another. An illegal
activity adds a factor to the relationship which may either
extinguish or modify the duty of care otherwise owed. A
joint illegal activity may absolve the one party from the duty
towards the other to perform the activity with care for the
safety of that other. That, it seems to me, is the effect of
Smith v. Jenkins (1970) 119 CLR 397
Where there is a joint illegal activity
the actual act of which the plaintiff in a civil action may be
complaining as done without care may itself be a criminal act
of a kind in respect of which a court is not prepared to hear
evidence for the purpose of establishing the standard of care
which was reasonable in the circumstances. A court will not
hear evidence nor will it determine a standard of care owing
by a safe blower to his accomplice in respect of the explosive
device. This is an example which gives no difficulty, but
other cases can give difficulty in classification."

I adhere to that statement. I think that it is correct to base the defence upon a denial of a duty of care in the particular circumstances rather than upon a denial of remedy for a breach of the duty of care. A legal duty of care presupposes that a tribunal of fact can properly establish a standard of care in order to determine whether there has been a breach of the duty of care. If the courts decline to permit the establishment of an appropriate standard of care then it cannot be said that there is a duty of care. (at p457)

3. Before the courts will say that the appropriate standard of care is not permitted to be established there must be such a relationship between the act of negligence and the nature of the illegal activity that a standard of care owed in the particular circumstances could only be determined by bringing into consideration the nature of the activity in which the parties were engaged. The two safe blowers provide the simplest illustration. What exigencies of the occasion would the tribunal take into account in determining the standard of care owed? That the burglar alarm had already sounded? That the police were known to be on their way? That by reason of the furtive occasion itself a speed of action was required which made it inappropriate to apply to the defendant a standard of care which in lawful circumstances would be appropriate? The courts will not engage in this invidious inquiry. The reason is no doubt based on public policy. If, then, no standard of care can legally be determined, it cannot be said that there is any duty of care. (at p458)

4. I had first to consider this question of the relationship between duty of care and joint illegal enterprise in Bondarenko v. Sommers (1968) 69 SR (NSW) 269 . The jury had been told (1968) 69 SR (NSW), at p 274 :

"'If all four, including the plaintiff, participated in the
theft then certain legal consequences flow therefrom which I
will tell you, one of them being that the plaintiff cannot
maintain this action against either defendant no matter if
Sommers was negligent or careless in his driving. It does
not matter from this point of view whether the plaintiff was a
driver or whether he was only a passenger because there was
an illegal purpose that was being effected, if the defendant's
case is correct, which was that there was an illegal purpose to
take this car, steal it and drive it unlawfully around the back
roads and to indulge in a speed contest for personal sport
and enjoyment.'"

and further told (1968) 69 SR (NSW), at p 275 :

"'If these four persons were jointly engaged and all
participated in the theft of this Oldsmobile and that one of
the purposes was that they should split into pairs, one pair to
go in one car and the other pair in the Oldsmobile and that
they should drive around the streets illegally in the stolen car
and that when an occasion presented itself that they should
then indulge in a race, and if they do that and thus indulge in
a race up a street or travel at high speeds to satisfy their
personal desires in that respect, and if an accident happens
then no damages can be claimed against any one of the
participating thieves who was driving the other vehicle, nor
can any damages be claimed in those circumstances against
the owner of the stolen car.'" (at p458)

5. Having set out these impugned passages in the summing up I said in my reasons for judgment (1968) 69 SR (NSW), at p 275 :

"The reason for the stress placed by the learned trial judge
upon the activities after the stealing of the car is in relation
to the issue of criminality or illegality that he wished to
stress to the jury that the immediate illegal purpose was still
being carried out at the time when the injury occurred to the
plaintiff.
...
There must be a relation between the criminal act and the
act of negligence complained of. If, to use the language of
Latham C.J. in Henwood's Case (1938) 60 CLR at p 446,
the person injured by
want of care is a burglar on his way to a professional
engagement, the fact that he is a burglar has no relation
causally or otherwise to the injury to him in a motor accident
on the highway. On the other hand, if the burglar in the act
of breaking in is so negligent that he injures his accomplice,
the accomplice cannot in my view sue for negligence, because
the actual act of which he would be complaining as done
without care would itself be a criminal act of a kind in respect
of which a court would not hear evidence for the purpose of
establishing the particular standard of care which would be
expected in the circumstances. There must in my view be
this relation between the act complained of and the criminal
act."

Later I said (1968) 69 SR (NSW), at p 277 :

"The illegal act complained of was the taking and using of
a motor vehicle and it is the using of the motor vehicle which
is complained of as having been done negligently. Thus the
actual act complained of as done negligently is itself the
criminal act in which both plaintiff and defendant were
engaged."

The latter passage is an application to the facts of the case of the principles which I had attempted to enunciate in the earlier passages which I have quoted above. I adhere to that enunciation. I would add that in accordance with Henwood's Case [1938] HCA 35; (1938) 60 CLR 438 it is necessary in the case of a statutory offence to consider whether "it is part of the purpose of the law against which the plaintiff has offended to disentitle a person doing the prohibited act from complaining of the other party's neglect or default, without which his own act would not have resulted in injury' - per Dixon and McTiernan JJ. in Henwood's Case" (1938) 60 CLR, at p 460 . But such a purpose must be clear. If it is not express then it seems to me that in respect of civil liability for negligence it can only be inferred by taking account of the same factors as I have described in respect of the relation between the illegal activity and the act of negligence complained of. (at p459)

6. I do not think that this approach is inconsistent with the decision in Smith v. Jenkins [1970] HCA 2; (1970) 119 CLR 397 . The reasoning of the various members of the Court differed in certain respects which have been analysed at length in the judgments delivered in the present case in the Full Court. I do not think that it is necessary to embark on a further analysis, but it is to be noted that in that case the plaintiff and defendant had jointly robbed the owner of a motor car of his money and his car keys. They had forced him to tell them where his car was. They had used the keys to take his car and some time later in the same evening, after they had each taken turns at driving the car, when the defendant was driving it at 80 or 90 m.p.h. the car ran off the road and hit a tree. These additional circumstances appear in the enunciation of the facts by Windeyer J. (1970) 119 CLR, at p 405 . Barwick C.J. stated (1970) 119 CLR, at pp 399-400 :

"The driving of the car by the appellant, the manner of
which is the basis of the respondent's complaint, was in the
circumstances as much a use of the car by the respondent as
it was a use by the appellant. That use was their joint
enterprise of the moment...
In my opinion, the appellant, in the particular
circumstances of the case, should succeed...".

Owen J. referred throughout his judgment to the crime as the taking and using of the motor vehicle, not simply the illegal using of the vehicle. (at p460)

7. It appears to me that these facts lie at the basis of the conclusion that there was a relevant joint criminal enterprise. It was a jaunt, an escapade, a joy-ride even though of a most serious kind from the beginning to the end. How could a standard of care be determined for such a course of criminal activity? I doubt that the decision would have been the same if the accident had occurred days, weeks or months later when the circumstances of the taking of the vehicle had ceased to have any significant relationship to the manner in which the vehicle was being used. (at p460)

8. In Godbolt v. Fittock (1963) SR (NSW) 617 the defendant was driving a utility truck with the plaintiff as passenger. The purpose of the journey was a joint venture of stealing cattle from farms along the road, transporting them in the truck to a market town, selling them in the market and sharing the proceeds. Some cattle had already been stolen and were in the truck. The plaintiff could not succeed in an action based on negligent driving of the truck. In my opinion the correct basis for this conclusion was that the court would not enter upon an inquiry on the standard of care appropriate to such circumstances. (at p460)

9. On the other hand in Andrews v. Nominal Defendant (1965) 66 SR (NSW) 85 the fact that the plaintiff had permitted the driver of the vehicle to drive that vehicle when it was unregistered and uninsured was held not to be a bar. I would base this conclusion upon the ground that the fact of the vehicle being unregistered and uninsured did not bear upon the question whether or not the degree of care exercised by the driver was in the circumstances reasonable. (at p461)

10. In the present case the drive of the car was disqualified from driving and therefore his driving of the car was an offence; the passenger knew that the driver was disqualified and aided and abetted him in driving whilst so disqualified. The question is - what bearing have those facts on the standard of care reasonably to be expected of the driver? The answer is - none whatsoever. (at p461)

11. I would dismiss the appeal. (at p461)

MURPHY J. The question is whether the plaintiff, who, after suffering personal injuries as a passenger in a car involved in an accident on a public highway, sued the defendant (the driver) for negligence in the management of the car, is prevented from recovery because of illegality. One of the defences was that the plaintiff and the defendant were jointly participating in the commission of a crime (the defendant was driving while disqualified), but it was not contended that the plaintiff had consented to any risk of the defendant's careless driving, or that he had failed to take reasonable care for his own safety. (at p461)

2. The appellant relied on the statement in Colburn v. Patmore [1834] EngR 55; (1834) 1 CM & R 73, at p 83 [1834] EngR 55; (149 ER 999, at p 1003) by Lord Lyndhurst: "I know of no case in which a person who has committed an act, declared by the law to be criminal, has been permitted to recover compensation against a person who has acted jointly with him in the commission of the crime." But in that case, the plaintiff (a publisher) sued his editor to recover the amount of a criminal fine imposed on the plaintiff on conviction of criminal libel as a result of the editor's action. The Court rejected the possibility of any claim for compensation for having been convicted of an offence on the basis that the allowance of such a claim would have undermined the sanction of the criminal law. That statement and other dicta in that case therefore related to a point which is quite different to the present problem (see E. J. Weinrib, "Illegality as a Tort Defence", University of Toronto Law Journal, vol. 26 (1976), at pp. 51-54). (at p461)

3. The most recent case in this Court on the subject is Progress & Properties v. Craft [1976] HCA 59; (1976) 135 CLR 651 , in which there were claims in negligence and breach of statutory duty (building regulations). The illegality relied on as a defence was a breach of the regulations and Jacobs J. (with whom Stephen and Mason JJ. and I agreed) said (1976) 135 CLR, at p 668 :

"A plea of illegality in answer to a claim of negligence is a
denial that in the circumstances a duty of care was owed to
the injured person. A duty of care arises out of the
relationship of particular persons one to another. An illegal
activity adds a factor to the relationship which may either
extinguish or modify the duty of care otherwise owed. A
joint illegal activity may absolve the one party from the duty
towards the other to perform the activity with care for the
safety of that other. That, it seems to me, is the effect of
Smith v. Jenkins [1970] HCA 2; (1970) 119 CLR 397.
Where there is a joint illegal activity
the actual act of which the plaintiff in a civil action may be
complaining as done without care may itself be a criminal act
of a kind in respect of which a court is not prepared to hear
evidence for the purpose of establishing the standard of care
which was reasonable in the circumstances. A court will not
hear evidence nor will it determine a standard of care owing
by a safe blower to his accomplice in respect of the explosive
device. This is an example which gives no difficulty, but
other cases can give difficulty in classification."

The majority thus indorsed the view that a court may be able to determine a standard of care and recognize a duty, but refuse to do so as an exercise of judicial policy to deny recovery in the circumstances. (at p462)

4. The general approach of the courts in Australia and elsewhere to illegality in negligence has been questioned in recent articles (see W. J. Ford, "Tort and Illegality: The Ex Turpi Causa Defence in Negligence Law" and "The Relationship between the Illegal Conduct and the Negligence", Melbourne University Law Review, vol. 11 (1977), pp. 32, 41; G. H. L. Fridman, "The Wrongdoing Plaintiff", McGill Law Journal, vol. 18 (1972), p. 276; and see E. J. Weinrib, "Illegality as a Tort Defence", loc. cit.). It seems to me that the criticism expressed in those articles is valid. (at p462)

5. The defects in the concept of the duty of care which have been exposed by many authors (e.g., Professor Julius Stone, Legal System and Lawyers' Reasonings (1964)) are highlighted in this area. I will, however, continue to use the term "duty of care" for convenience. (at p462)

6. The cases where joint participation of plaintiff and defendant in an illegal enterprise extinguish the duty of care because the court cannot (as distinct from will not) determine an appropriate standard of care must be infrequent. In my opinion, in the circumstances of Smith v. Jenkins, there was no difficulty about the requisite standard of care and the duty of care. It was the same as for every other driver: to drive carefully (which requires observance of the traffic code) and, particularly, to take care not to injure the passenger. In those circumstances, denial of recovery is simply an application of judicial policy (which, in that case, was expressed by the majority as denial of any duty of care). In Godbolt v. Fittock (1963) SR (NSW) 617 the element of public policy was expressed. Sugerman P. said (1963) SR (NSW), at p 620 there should be denial of recovery: "...only if it would be contrary to some recognized head of public policy that he should be awarded damages in the circumstances stated..." (at p463)

7. There is no apparent reason why cases of common law negligence should be dealt with differently from those of breach of statutory duty. For example, damage caused by breach of traffic regulations may often form the subject of a common law claim for negligence in which the regulations are evidence of the requisite standard of care (see London Passenger Transport Board v. Upson (1949) AC 155 ). Contravention of highway codes may also give rise to a claim for breach of statutory duty, and the duty and the standard of care are then defined legislatively. In an action for negligence, the legislative standard of care may be relied on as evidence of the minimal common law standard. In such a case, there is no difficulty in ascertaining both the extent of the duty and of a standard of care. If recovery is to be denied, it is difficult to justify it by absence of standard and duty of care; to do so puts the court in the position of refusing to accept the legislative prescription of standard and duty. (at p463)

8. Illegal safebreaking where an accomplice is injured by another's careless use of explosives is often discussed (see National Coal Board v. England (1954) AC 403, at p 429 ) and was referred to in the Court below. It was regarded as an example of absence of any standard of care and therefore of any duty of care. If, however, a statutory provision required any person using explosives not to explode them while anyone unprotected was in the vicinity, there would be a statutory duty to take care, a statutory standard of care and, apart from the illegality, presumably a right to recover for the breach of the statutory duty. There would doubtless also be, apart from the illegality, a right to recover for common law negligence in which the statutory standard would be evidence of the requisite standard of care. In these circumstances, it would be difficult to attribute denial of recovery to an inability to establish a standard of care. Yet it would not be easy to justify a refusal to recognize the prescribed standard. (at p464)

9. The decided cases have generally concerned illegality to which the plaintiff and the defendant were party, but in the defence the relevant illegality is the plaintiff's. In this case, the defendant's illegality is only relevant to this defence as forming the basis of the plaintiff's illegality (the participation in the defendant's illegal conduct). However, the implicit notion in many of the decided cases is that, as the illegality is joint, the plaintiff has agreed to take the risk of the defendant's tortious conduct, but this, of course, depends on the circumstances and should not be taken for granted. If the rationale of judicial policy is expressed as absence of the duty, this serves the same purpose as a conclusive imputation of voluntary assumption of the risk by each participant. As E. J. Weinrib said, loc. cit., at p. 34: "One explanation of the relevance of the defendant's participation in the illegality is that the court has in effect elided the illegality and the volenti defences." This would raise problems where there is a statutory duty of care to which volenti is no defence. It is this concealed volenti approach which explains why the illegality cases are mostly ones in which plaintiffs and defendants are participants in the illegality. (at p464)

10. PUBLIC POLICY. Apart from a controlling statute, denial of recovery is a question of judicial policy (but no more or less so than any other part of the common law). Leaving aside questions of insurance, I see no reason why policy considerations should render the careless defendant immune from civil action because of illegality. The policy considerations which seem to me to be important are:
(1) It is not a rational development of the common law to attempt to supplement the criminal law by an additional sanction which is uncertain in its application and when applied can have such extremely variable penalties. The legislative policy reflected in the criminal law is to impose specified maximum penalties graduated according to the offence, coupled generally with a judicial discretion to mitigate the punishment. It defents that legislative policy to impose by judicial decision an additional sanction (deprivation of recovery of compensation for injury) which is uncertain in its application and imposes monetary penalties which vary fortuitously with no relation to the degree of moral culpability or the social purpose to be served. In this way the defence of illegality cuts across and defeats the policy of the criminal law.
(2) A participant in a joint illegal enterprise remains liable for the criminal consequences of killing or injuring accomplices in the course of the enterprise. Why should he not remain liable for the non-criminal consequences? Both criminal and civil laws are intended to protect persons from such harmful consequences.
(3) The injured participant does not "profit from his own wrong" by allowing him recovery in simple negligence which is compensatory only. If punitive damages were sought, the question of "profit" would arise.
(4) Where the injury is serious and the defendant is able to pay the damages, wholly or partly, public interest is not advanced by relieving the wrongdoer from the consequences of his carelessness and perhaps forcing the injured accomplice to use social services.
(5) Carelessness which causes injury may often be much more serious in its social consequences than the offence (e.g., stealing sheep or robbing a bank) in which the plaintiff was engaged when injured. Those engaged in such operations should not be immune from the civil consequences of their careless conduct even in regard to their accomplices. I doubt that the law of negligence has any effect on their behaviour, but it is more likely to do so if it operates to require the participants to observe the normal standards of care towards each other rather than to relieve them, thus putting them outside the civil law.
(6) Allowing a plaintiff's illegality as a complete defence is counter to the trend of the common law in favour of compensation for injury, which is reflected in the confinement of the defence of voluntary assumption of risk, and the reduction of contributory negligence from a complete defence to a ground for apportionment.
(7) It is anomalous for a defendant to escape liability to which he would have been exposed but for his own criminal conduct. (at p465)

11. There is no merit in the contention that a civil court would be degraded by hearing evidence which is given every day before criminal courts (see Walsh J. in Smith v. Jenkins (1970) 119 CLR, at p 431 ). (at p465)

12. I have come to the opinion that the defence of illegality should be confined strictly. This would be achieved in regard to statutory offences by strict application of the test referred to in Henwood's Case (1938) 60 CLR, at p 460 : "(Is it) part of the purpose of the law against which the plaintiff has offended to disentitle a person doing the prohibited act from complaining of the other party's neglect or default without which his own act would not have resulted in injury". (at p465)

13. This means (where the plaintiff's offence is statutory) that recovery will be denied (by reason of illegality) only where denial is statutory policy (not because the court for reasons of policy declines to adopt a standard or recognize a duty). Otherwise, recovery should be denied only where there is a voluntary assumption of the risk. The defence of volenti is (correctly, in my opinion) now regarded as inappropriate in actions for breach of employer's duty. There may still be a place for it in other negligence actions where the duty and standard of care are not statutory. (at p466)

14. My conclusion is that, apart from controlling statutory direction, recovery in negligence should not be excluded because of illegality on the part of the plaintiff, either alone or jointly with the defendant. Although the illegality in this case (driving whilst disqualified) is a serious offence, the legislation creating the offence does not require recovery to be denied and the defendant to be exempted from liability. (at p466)

15. The appeal should be dismissed. (at p466)

AICKIN J. I have had the advantage of reading the reasons for judgment prepared by Jacobs J. I agree with those reasons and with the order proposed and have nothing to add. (at p466)

ORDER

Appeal dismissed with costs.