Gala v Preston [1991] HCA 18; (1991) 172 CLR 243 (28 May 1991)

HIGH COURT OF AUSTRALIA

GALA v. PRESTON [1991] HCA 18; (1991) 172 CLR 243
F.C. 91/015

Negligence

High Court of Australia
Mason C.J.(1), Brennan(2), Deane(1), Dawson(3), Toohey(4), Gaudron(1) and McHugh(1) JJ.

CATCHWORDS

Negligence - Duty of care - Plaintiff and defendant unlawfully using stolen motor car - Whether driver owned duty of care to passenger - Proximity - Public policy.

HEARING

1990, November 7; 1991, May 28. 28:5:1991
APPEAL from the Supreme Court of Queensland.

DECISION

MASON C.J., DEANE, GAUDRON and McHUGH JJ. The question raised in this appeal is: what are the principles which govern the liability of the driver of a motor vehicle to a passenger in that vehicle who is injured as a result of the careless driving of the vehicle, in the course of a joint enterprise that involves the commission of a criminal offence, being the theft of the vehicle and its unlawful use contrary to s.408A of The Criminal Code (Q.) ("the Code")? The question is one of fundamental importance and it calls for a consideration of a number of decisions of this Court.
The Facts

2. Shortly before midnight on 14 August 1984 the respondent (the plaintiff at the trial), then aged nineteen, suffered injuries when the motor vehicle in which he was a passenger veered off the road and struck a tree. The vehicle was being driven by the first appellant (the first defendant at the trial). At the time of the accident the respondent, 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 to s.408A of the Code.

3. The primary judge found that at about noon on 14 August 1984 the four youths went to the Customs House Hotel, Maryborough, where they began to play pool and consume liquor. They had lunch at about 2.00 p.m. The respondent consumed approximately forty scotches during the course of the afternoon and evening. His companions drank beer and consumed an equivalent amount of alcohol to that consumed by the respondent. The primary judge found that the probabilities were that the respondent and the first appellant, at the time of the accident, had a blood alcohol concentration in excess of .2 per cent.

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

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

6. The respondent and the first appellant both pleaded guilty to and were convicted of unlawfully using a motor vehicle contrary to s.408A of the Code and were each placed on twelve months probation and ordered to pay restitution to the owner of the vehicle. The respondent was further ordered to perform unpaid community service.
The Issues in the Action

7. The respondent brought an action in the District Court against the first appellant, the second and third appellants (the owners of the vehicle) and the fourth appellant (the third party insurer and defendant by election) for damages for personal injuries sustained as a result of the negligent driving of the first appellant. The fourth appellant alleged in its entry of appearance and defence, first, that the respondent was not entitled to recover damages for injury and loss resulting from the accident because the accident occurred in the course of the joint illegal activity of unlawfully using the vehicle in question. Secondly, it alleged that the respondent voluntarily accepted the risk of injury, by travelling in a vehicle which he knew to have been illegally taken and illegally used and which he could have expected would be driven in an unsafe manner and, further, by consuming alcohol to the extent that the respondent impaired his own capacity to judge whether the first appellant was capable of driving the vehicle safely. Thirdly, it was alleged that the first appellant did not breach any duty of care he owed to the respondent. Alternatively, it was alleged that, in travelling in a vehicle which had been illegally taken and was being illegally used, in consuming alcohol to the extent referred to above and in failing to wear a seatbelt, the respondent contributed to his injuries.
The Decision of the Primary Judge

8. The primary judge was satisfied that the respondent was aware that the amount of alcohol consumed by the participants in the enterprise took them well over the permitted blood alcohol level for driving a motor vehicle and would result in them exhibiting observable signs of intoxication. However, the judge went on to find that an observer with a similar blood alcohol content would have his ability to observe and appreciate the signs in another person significantly impaired. Somewhat surprisingly, his Honour then stated that he was not persuaded that the respondent knew and appreciated that the first appellant's ability to drive was so impaired as to displace the ordinary standard of care owed by a driver to a passenger; nor did he consider that the respondent perceived and fully appreciated the existence of danger so as to accept voluntarily the risk of the consequent injury. The learned judge concluded that, as the respondent's failure to appreciate the risk was due to his own consumption of alcohol and as he had failed to wear a seatbelt, the contributory negligence of the respondent should be assessed at 60 per cent. These findings were not challenged on appeal.

9. However, the primary judge considered the decisions in Smith v. Jenkins [1970] HCA 2; (1970) 119 CLR 397, Progress and Properties Ltd. v. Craft [1976] HCA 59; (1976) 135 CLR 651, Jackson v. Harrison [1978] HCA 17; (1978) 138 CLR 438 and Bondarenko v. Sommers (1968) 69 SR(NSW) 269 in relation to the rights inter se of co-participants in a joint illegal enterprise and, in the light of those cases, concluded that the joint illegal enterprise in which the parties were engaged prevented him from determining the appropriate duty of care owed by the first appellant to the respondent. Judgment was entered for the defendant by election.
The Decision of the Full Court on Appeal

10. On appeal, the Full Court of the Supreme Court (Connolly, McPherson and Williams JJ.) reversed the decision of the primary judge, concluding that, on the facts of the case, the ordinary duty of care applied and that the first appellant was in breach of that duty of care. Williams J. (with whom Connolly J. agreed) considered the principle applicable to be that
"(s)pecial or exceptional circumstances affecting the
relationship between the driver and passenger of a motor
vehicle may take the case out of the ordinary class of
relationship between such persons and put such people in a
relationship in which either some duty of care (perhaps of
a lower standard) is owed or even into a situation where
no duty of care is owed at all."
11. Williams J. noted that the accident occurred some hours after the vehicle was stolen and some hundreds of kilometres from where it had been stolen and that there was nothing to suggest that, at the material time, the vehicle was being driven in an attempt to avoid apprehension by the police. Accordingly, Williams J. considered that there were no circumstances which could be said to give rise to the driving of the vehicle otherwise than in accordance with the ordinary reasonable standard expected of an experienced, skilled and careful driver.

12. Similarly, McPherson J. considered that, in the circumstances of the case, the joint illegal enterprise of using the motor vehicle contrary to s.408A of the Code did not increase the risk of the ensuing injury such that the injury could be said to be a "foreseeable consequence of the illegal enterprise or a hazard incidental to or inherent in its execution".
The Case for the Appellants

13. In this Court, the appellants submit that the present case is indistinguishable from the case of Smith v. Jenkins and ought therefore to be decided in accordance with the principle for which that case is authority. Both cases, it is said, concern the negligent driving of a motor vehicle by one of the participants in the unlawful use of the vehicle for the purpose of a "joy ride", the unlawful activity resulting in injury to another participant in the crime. The appellants submit that the principle established by Smith v. Jenkins is that, where the very act of which the plaintiff complains is the criminal act in which both the plaintiff and defendant are jointly engaged, no duty of care does or can arise between the driver and the co-participant in the use of the vehicle. On the other hand, the respondent submits that the case is distinguishable from Smith v. Jenkins and, alternatively, that the decision in that case should be overruled.
Illegality as a Defence to an Action in Negligence

14. In Henwood v. Municipal Tramways Trust (S.A.) [1938] HCA 35; (1938) 60 CLR 438, this Court rejected unanimously the argument that a passenger in a tram had no action in negligence against the tramway authority because he put his head out of the window of the tram in breach of a by-law made by the authority as a safety measure. The passenger, affected by nausea, having put his head outside the window, was struck by two standards while the tram was in motion, the standards being situated seventeen inches from the side of the tram. The authority was held liable in negligence in that it had failed to construct barriers to prevent passengers leaning out of the windows. The action of the passenger in breach of the by-law which exposed him to liability for a penalty under the by-law was not a defence to the action. The proposition for which Henwood stands as authority is that "there is no rule denying to a person who is doing an unlawful thing the protection of the general law imposing upon others duties of care for his safety", to repeat the words of Dixon and McTiernan JJ.: at p 462.

15. That principle is, of course, subject to the qualification that a statutory provision which creates an offence may evince an intention to disentitle a person who sustains injury in committing the offence from recovery in a civil action: see at p 460. This qualification has no relevance for the present case because it is not suggested that s.408A manifests such an intention.
Illegality as a Defence in Cases of Joint Illegal Enterprise

16. However, Henwood was not a case in which the plaintiff sustained injury in the course of the commission by plaintiff and defendant of a joint illegal enterprise. Whether a plaintiff in that situation could recover damages for negligence was the question which arose for consideration in Smith v. Jenkins. The facts were similar 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. The plaintiff, who was a passenger, was injured when the vehicle left the road 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 best treated as deciding that, in the circumstances, no relevant duty of care arose on the part of the defendant to the plaintiff by reason of their participation in a joint illegal enterprise. Kitto J. considered that the relevant principle was 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: at p 403. Windeyer J. observed (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. How it be analysed and explained matters not."

Earlier (at p 418), his Honour rejected the public policy approach and stated that the special relationship between the parties excluded the existence of a duty of care. He referred to the principle that an accomplice owed no duty of care to another accomplice in doing an act which was "a step in the execution of the common illegal purpose" (at p 419) and went on to say (at p 421) that "(t)he question is whether the harm arose from the manner in which the criminal act was done." Barwick C.J. (at p 400) and Owen J. (at pp 425-426) appear to have agreed with that statement of principle, whereas Walsh J. (at pp 433-434) stated that the rule was one of public policy.

17. But it would be wrong to regard the case as authority for the proposition that in all circumstances the participation of plaintiff and defendant in a joint illegal enterprise will negate the existence of a duty of care on the part of the defendant to the plaintiff, even when the alleged breach of duty arises in the execution of the criminal act. To take one example. The fact that a joint enterprise is carried on illegally in breach of safety regulations requiring a particular precaution to be taken should not preclude the existence of a relevant common law duty of care on the part of one participant to another unless circumstances of the parties' relationship, including the nature and incidents of the enterprise, are such as to make it unreasonable to fix a participant with a duty of care. There is no a priori reason why the illegality of a particular enterprise or activity should automatically negate the existence of a duty of care which might otherwise arise from the relationship which subsists between the parties, especially if it be accepted that the decision in Smith v. Jenkins does not rest on public policy.

18. So much at least was established by the subsequent decision in Progress and Properties. The plaintiff was injured when a hoist on which he had entered for the purpose of doing work on the twentieth floor of a building under construction crashed to the ground. The hoist was designed for the carriage of materials, not persons. A regulation made it an offence to ride on the hoist or to permit a person to do so. In the result both the plaintiff and the operator of the hoist, an employee of the defendant, acted in breach of the regulation. The accident occurred when the operator's foot slipped off the brake pedal, allowing the hoist platform to fall to the ground. The plaintiff sued in negligence and for breach of statutory duty not to lower any load at a speed exceeding 600 feet per minute. By majority (Stephen, Mason, Jacobs and Murphy JJ., with Barwick C.J. dissenting), the Court held that the defence of illegality could not be sustained.

19. Jacobs J. (with whom the other Justices in the majority agreed) said (at p 668):

"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.
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."

His Honour went on to say (at p 668) that the relation of the illegality to the negligence complained of did not require an examination of any special aspect of the relationship between the participants which could affect the standard of care, observing (at pp 668-669):

"Whether or not it was legal to ride on the hoist platform
the same standard of care in operating the hoist would be
expected of the operator, and the court would not be obliged
to embark on 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, his Honour added that the defence was wholly inapplicable to the circumstances of regulations designed to enforce a high specific duty to ensure the safety of the participant in the illegal enterprise: see at p 669.

20. Again, in Jackson v. Harrison, the Court, by majority, did not regard participation in an illegal enterprise as disabling. The facts of the case are closer to those of Smith v. Jenkins than Progress and Properties. The plaintiff was injured when travelling as a passenger in the defendant's car as a result of the defendant's negligent driving. Both parties' driving licences had been suspended in consequence of convictions for traffic offences. Each was aware of the other's disqualification. Nonetheless they took the car on a weekend journey, agreeing to share the driving. Each committed the offence of driving a motor vehicle without a licence. Three members of the majority of four (Mason J., Jacobs J. and Aickin J.) applied the law as stated by Jacobs J. in Progress and Properties. Jacobs J. (with whom Aickin J. agreed) observed (at p 457):

"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."

21. His Honour went on to observe (at p 459) that in accordance with Henwood it is necessary to consider whether, to use the words of Dixon and McTiernan JJ. in that case (at p 460),

"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".

His Honour distinguished Smith v. Jenkins on the ground that it concerned a relevant joint criminal enterprise of a serious kind beginning with the theft of money, the car keys and the car itself. The criminal enterprise was such that it was not possible to determine a standard of care for such a course of criminal activity: see at p 460. However, his Honour conceded that the decision might not have been the same if the accident had occurred days, weeks or months later when the circumstances of the taking of the vehicle ceased to have any significant relationship to the manner in which the vehicle was being used. By way of contrast, the facts in Jackson v. Harrison were such that the joint illegality had no bearing at all on the standard of care reasonably to be expected of the driver.

22. The majority reasoning in Progress and Properties and Jackson v. Harrison is inconsistent with the proposition that a defendant is under no duty of care whenever he or she is engaged with a plaintiff in the commission of a joint illegal enterprise and the alleged breach of duty arises in the execution of the criminal act. There are two strands to the majority reasoning. The first is that, in cases involving a joint illegal enterprise, it is necessary to examine the relation of the illegality to the negligence complained of with a view to ascertaining whether it is possible or feasible for the court to determine an appropriate standard of care. If it is impossible or not feasible to do so, no duty of care arises. The second is that, in cases of illegality arising from infringement of statutory provisions which are designed to promote safety, e.g., traffic laws and industrial safety regulations, there is no reason why illegality of that kind should negate the existence of a duty of care.

23. However, it is necessary to take account of developments affecting 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 [1984] HCA 52; (1984) 155 CLR 549, this Court, in a series of decisions, has accepted that a relevant duty of care will arise under the common law of negligence only in a case where the requirement of a relationship of proximity between the plaintiff and the defendant has been satisfied: see Sutherland Shire Council v. Heyman [1985] HCA 41; (1985) 157 CLR 424, at pp 461-462, 506-507; Stevens v. Brodribb Sawmilling Co. Pty. Ltd. [1986] HCA 1; (1986) 160 CLR 16, at pp 30, 50-52; San Sebastian Pty. Ltd. v. The Minister [1986] HCA 68; (1986) 162 CLR 340, at pp 354-355; Cook v. Cook [1986] HCA 73; (1986) 162 CLR 376, at pp 381-382. The requirement of proximity constitutes the general determinant of the categories of case in which the common law of negligence recognizes the existence of a duty to take reasonable care to avoid a reasonably foreseeable and real risk of injury. In determining whether the requirement is satisfied in a particular category of case in a developing area of the law of negligence, the relevant factors will include policy considerations. Where, as in the present case, the parties are involved in a joint criminal activity, those factors will include the appropriateness and feasibility of seeking to define the content of a relevant duty of care. Thus, it would border on the grotesque for the courts to seek to define the content of a duty of care owed by one bank robber to another in blowing up a safe which they were together seeking to rob. On the other hand, to take an extreme example the other way, it would be unjust and wrong for the courts to deny the existence of the ordinary relationship of proximity which exists between the driver of a motor vehicle and a passenger merely because the driver was, with the encouragement of the only passenger, momentarily driving in a traffic lane reserved for the use of cars with three or more occupants.

24. An exemplification of the relationship of proximity which provides particular assistance in dealing with the problems that this case presents is to be found in Cook v. Cook. There, an inexperienced and unlicensed driver, the defendant, was invited by the plaintiff to drive a car in which the plaintiff travelled as a passenger. The defendant, in seeking to avoid a parked vehicle, accelerated and lost control of the car so that it mounted the footpath and crashed into a concrete pole, causing injury to the plaintiff. Mason, Wilson, Deane and Dawson JJ., in their joint judgment, recognized that, where there is ordinarily a relationship of proximity between driver and passenger, the standard of care is that reasonably to be expected of an experienced, competent driver. Then the standard is objective and is not modified or extended by the driving history or ability of the particular driver. Their Honours went on to point out (at pp 383-384) that special and exceptional circumstances, such as those of that case, may transform the relationship between a driver and a particular passenger into a special or different class or category of relationship. It follows that the onus of establishing the existence of facts giving rise to a relationship of such a special or different category under which it would be unreasonable to fix the duty of care owed by a driver by reference to the ordinary standard of care lies on the party who asserts it: see at p 387. Likewise, the onus lies on the party who asserts that, by reason of special and exceptional facts, the ordinary relationship of a driver towards a passenger is transformed into one which lacks the requisite relationship of proximity to give rise to a relevant duty of care.

25. So, in the present case, it is a matter of examining the relationship between the respondent and the first appellant with a view to ascertaining whether there was a relationship of proximity such as to give rise to a relevant duty of care on the part of the first appellant as driver of the motor vehicle to the respondent as his passenger. The respondent does not contend that, if such a duty of care arose, the appropriate standard of care was other than the ordinary standard of care to be expected of a driver to a passenger in the vehicle.

26. When attention is given to the circumstances of the present case it is difficult to see how they can sustain a relationship of proximity which would generate a duty of care. The joint criminal activity involving the theft of the motor vehicle and its illegal use in the course of a spontaneously planned "joy ride" or adventure gave rise to the only relevant relationship between the parties and constituted the whole context of the accident. That criminal activity was, of its nature, fraught with serious risks. The consumption by the participants, including the first appellant, of massive amounts of alcohol for many hours prior to the accident would have affected adversely the capacity of a driver to handle the motor vehicle competently. Despite the surprising conclusion of the primary judge, each of the parties to the enterprise must be taken to have appreciated that he would be encountering serious risks in travelling in the stolen vehicle when it was being driven by persons who had been drinking heavily and when it could well be the subject of a report to the police leading possibly to their pursuit and/or their arrest. In the special and exceptional circumstances that prevailed, the participants could not have had any reasonable basis for expecting that a driver of the vehicle would drive it according to ordinary standards of competence and care.

27. In this situation the parties were not in a relationship of proximity to each other such that the first appellant, as the driver of the vehicle, had a relevant duty of care to the respondent, as a passenger in the vehicle. In the circumstances just outlined, it would not be possible or feasible for a court to determine what was an appropriate standard of care to be expected of the first appellant as the driver of the vehicle. To conclude that he should have observed the ordinary standard of care to be expected of a competent driver would be to disregard the actual relationship between the parties as we have described it. To seek to define a more limited duty of care by reference to the exigencies of the particular case would involve a weighing and adjusting of the conflicting demands of the joint criminal activity and the safety of the participants in which it would be neither appropriate nor feasible for the courts to engage.

28. In the result the appeal should be allowed with costs, the orders of the Full Court of the Supreme Court should be set aside and, in lieu thereof, the appeal to that Court should be dismissed with costs.

BRENNAN J. The plaintiff (the respondent) was a passenger in a motor vehicle being driven by the first defendant (the appellant Gala) at high speed northbound along a straight section of the Bruce Highway towards Gladstone when, shortly before 11.50 p.m. on 14 August 1984, it left the road, collided with a tree and broke in two. The plaintiff sued the defendants (the appellants) in the District Court in Gladstone for damages in respect of personal injuries suffered by him in the accident which, he alleged, was the result of the first defendant's negligence. The plaintiff and the first defendant were two of a group of four young men travelling in the vehicle who had unlawfully taken the vehicle in Maryborough earlier that night, probably between 7.30 and 8.00 p.m., intending to drive it to Gladstone and further north to Rockhampton. At the time of the accident, the four young men were parties to the unlawful use of the vehicle contrary to the provisions of s.408A of The Criminal Code (Q.).

2. In the District Court Judge Dodds, finding that the occupants of the car were engaged in a joint unlawful use of the vehicle, held the case to be of the same kind as Smith v. Jenkins [1970] HCA 2; (1970) 119 CLR 397 which, according to the explanation of that case proffered by Jacobs J. in Jackson v. Harrison [1978] HCA 17; (1978) 138 CLR 438, at p 460, was a case in which a standard of care could not be determined in respect of the joint criminal enterprise of unlawfully using a motor vehicle. Judge Dodds said that he could not determine an appropriate standard of care and he entered judgment for the defendants. On appeal the Full Court of the Supreme Court of Queensland held that a standard of care could be determined. Williams J., with whom Connolly J. agreed, said:

"The incident immediately causing the injury to the
appellant, and the acts alleged to constitute the negligent
driving by the respondent Gala, occurred some hours after
the vehicle was stolen, and some hundreds of kilometres
north along the highway from where it had been stolen.
There is nothing to suggest that at the material time the
youths in the car were attempting to avoid capture by the
police and had either expressly or impliedly by conduct
become parties to an illegal venture which necessitated the
vehicle being driven otherwise than in accordance with the
ordinary reasonable standard expected of an experienced,
skilled and careful driver.
It follows, in my respectful view that the learned trial
judge erred in concluding that he could not determine an
appropriate duty of care. The ordinary duty of care applied
and the only reasonable inference open from the facts is
that the respondent Gala so drove at the material time that
he breached that duty of care. I would therefore find that
the respondent Gala was negligent."

McPherson J. observed:

"there is nothing in the evidence that suggests that the
joint illegal enterprise of using the motor vehicle contrary
to s.408A increased the risk of injury like that sustained
by the plaintiff or by any of the others involved. The
accident that occurred was not a foreseeable consequence of
the illegal enterprise or a hazard 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 for interest and reduced by 60% for the plaintiff's contributory negligence. The appeal to this Court raises for consideration once again the principle which governs a plaintiff's entitlement to recover damages for negligence when the act or omission which causes the damage in suit occurs in the course of the commission of a criminal offence to which the plaintiff and defendant are parties.

3. In a series of cases in this Court the problem of liability in negligence to a plaintiff committing or being party to the commission of a criminal offence has been considered: Henwood v. Municipal Tramways Trust (S.A.) [1938] HCA 35; (1938) 60 CLR 438; Smith v. Jenkins; Progress and Properties Ltd. v. Craft [1976] HCA 59; (1976) 135 CLR 651; Jackson v. Harrison. In these cases, the basis for denying to a plaintiff a right to recover has been stated in different ways. On one approach, it is possible to determine this case without considering those differences, for the facts of the present case are similar to the facts in Smith v. Jenkins. Although Smith v. Jenkins was distinguished from Progress and Properties Ltd. v. Craft and Jackson v. Harrison by the majorities in those cases, the actual decision in Smith v. Jenkins was not overruled. There are some differences in incidental facts between this case and Smith v. Jenkins, but the two cases are indistinguishable in their material facts. In particular, in both cases the plaintiff sustained his injuries in an accident as the result of the defendant's carelessness in controlling a motor vehicle that the plaintiff and the defendant were unlawfully using and, in both cases, the journey which followed immediately on the unlawful taking of the vehicle had been contemplated when the vehicle was taken. However, to determine this case on merely a factual correspondence with Smith v. Jenkins would leave unresolved the question whether there is any and what principle by which to determine the claim of a plaintiff who is a party to a criminal offence and who is injured by the carelessness of a co-offender in the course of committing the offence. Some reconsideration of the different statements of the basis for denying recovery is called for and a statement or restatement of the relevant principle must be attempted. To undertake that task, I would commence by recalling some basic propositions which inform the area of the law relevant to this case.

4. It is trite law that in every tort of negligence there are a duty of care owed by the defendant to the plaintiff, a breach of that duty by the defendant and consequent damage suffered by the plaintiff: Overseas Tankship (U.K.) Ltd. v. Morts Dock and Engineering Co. Ltd. ("The Wagon Mound (No.1)") [1961] UKPC 1; (1961) AC 388, at p 425. These elements can be expanded by five propositions:

1. A defendant's liability in negligence relates to the damage which
the plaintiff has actually suffered, and to no other: The Wagon
Mound (No.1), at p 425; Sutherland Shire Council v. Heyman [1985] HCA 41; (1985)
157 CLR 424, at pp 486-487.
2. A defendant's liability for that damage arises from an act done or
an omission made by the defendant (the relevant act or omission)
which is a cause of the damage suffered: Chapman v. Hearse [1961] HCA 46; (1961)
106 CLR 112, at p 122. However, an omission cannot be said to
be a cause of damage unless the defendant was under a duty to act
to avoid or prevent the damage and the omission is a breach of
that duty: East Suffolk Rivers Catchment Board v. Kent (1941)
AC 74; Jaensch v. Coffey [1984] HCA 52; (1984) 155 CLR 549, at p 578;
Sutherland Shire Council v. Heyman, at pp 476-481.
3. A defendant's liability for damage does not extend to damage
caused by the relevant act or omission unless the possibility of
causing that damage or damage of the same kind was reasonably
foreseeable at the time when the relevant act was done or the
relevant omission made: Bolton v. Stone [1951] UKHL 2; (1951) AC 850, at p 858;
Hughes v. Lord Advocate [1963] UKHL 1; (1963) AC 837; Mount Isa Mines Ltd. v.
Pusey [1970] HCA 60; (1970) 125 CLR 383, at pp 390, 392-393, 401-403, 413-414;
Jaensch v. Coffey, at pp 562-563.
4. A defendant is liable if, and because, a reasonable person in
the defendant's position foreseeing the possibility of causing
the damage suffered or damage of the same kind would not have
done the relevant act or made the relevant omission: Blyth v.
The Birmingham Waterworks Company [1856] EngR 223; (1856) 11 Ex 781 (156 ER 1047);
Heaven v. Pender (1883) 11 QBD 503, at p 509; Donoghue v.
Stevenson (1932) AC 562, at pp 580-581; Fardon v. Harcourt-Rivington
(1932) 146 LT 391, at pp 392,393; Bolton v. Stone, at
pp 866-869. That is the foundation not only of every duty of care
in torts of negligence but of the standard of care required to
discharge the duty: Vaughan v. Menlove (1837) 3 Bing (NC)468,
at p 475 [1837] EngR 424; (132 ER 490, at p 493). The standard of care is fixed
by reference to the steps which the hypothetical reasonable person
would take to avoid or prevent the possibility of the occurrence
of the foreseeable damage: Glasgow Corporation v. Muir [1943] UKHL 2; (1943)
AC 448, at p 457; Wyong Shire Council v. Shirt (1980) 146 CLR
40, at p 45; Jaensch v. Coffey, at pp 562-563.
5. A legal duty does not always arise when the facts show that
the kind of damage suffered by the plaintiff was reasonably
foreseeable by the defendant. Elements in addition to reasonable
foreseeability of damage are required to give rise to a duty of
care to avoid or prevent damage other than physical damage to the
person or to the property of the plaintiff; similarly, additional
elements are required where the act or omission of the defendant
amounts to a representation to the plaintiff on which the
plaintiff relies in doing an act or abstaining from acting whereby
the relevant damage is caused: Hedley Byrne and Co. Ltd. v. Heller
and Partners Ltd. [1963] UKHL 4; (1964) AC 465; Shaddock and Associates Pty. Ltd. v.
Parramatta City Council (No.1) [1981] HCA 59; (1981) 150 CLR 225, at pp 230-231;
Mutual Life and Citizens' Assurance Co. Ltd. v. Evatt (1968)
122 CLR 556, at pp 568-570; Jaensch v. Coffey, at pp 574-576;
San Sebastian Pty. Ltd. v. The Minister [1986] HCA 68; (1986) 162 CLR 340, at
p 369. Again, there may be special features of the circumstances
in which the relationship between the plaintiff and the defendant
exists which preclude the arising of a duty of care or modify
the standard of care otherwise required to discharge the duty:
Rootes v. Shelton [1967] HCA 39; (1967) 116 CLR 383, at p 389; The Insurance
Commissioner v. Joyce [1948] HCA 17; (1948) 77 CLR 39, at p 59; Cook v. Cook
[1986] HCA 73; (1986) 162 CLR 376, at pp 391-394.

5. Ordinarily, where the plaintiff's damage consists in physical injury to person or property caused by an act or omission of the defendant without the intervention of any other person - the archetypal category of negligence with which Donoghue v. Stevenson was concerned - no more is required to establish a relationship giving rise to a duty of care than that a reasonable person in the defendant's position would foresee the possibility of damage of that kind. No more is needed to establish the standard of care than that a reasonable person in the defendant's position, foreseeing the possibility of damage of that kind, would not have done the act or made the omission which caused the injury suffered by the plaintiff. As I read Lord Atkin's speech in Donoghue v. Stevenson (at pp 580-581), foreseeability is what he had in mind when he used the term "proximity". He did not intend that term to be confined to physical proximity but to embrace "such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act".

6. In recent times, as new categories of negligence have been recognized, the term "proximity" has been used frequently to describe any relationship out of which a duty of care arises whether or not reasonable foreseeability is the only or sufficient criterion for the existence of the relevant duty of care. In the present case, the majority seek to determine by reference to this extended notion of proximity whether the facts bring the case within one of "the categories of case in which the common law of negligence recognizes the existence of a duty to take reasonable care to avoid a reasonably foreseeable and real risk of injury". I am unable to adopt this approach. Use of the term "proximity" in its extended sense can be accepted only if it is steadily kept in mind that the term may then comprehend either elements additional to reasonable foreseeability which are essential to the existence of a duty in a new category of negligence or the elements in a relationship which, despite reasonable foreseeability, would preclude the arising of a legal duty of care. (By a new category of negligence I mean a category where the defendant's act or omission is not the direct cause of physical injury to the plaintiff's person or property.) Moreover, "proximity" in the extended sense may comprehend the effect of a statute giving a particular character to a relationship, whereas the duty of care relevant to the archetypal category of negligence is deduced from all the factual circumstances which constitute the relationship of the plaintiff and the defendant: Grant v. Australian Knitting Mills Ltd. [1935] UKPCHCA 1; (1935) 54 CLR 49, at p 64; (1936) AC 85, at p 103. "Proximity" in its extended sense may also comprehend "policy considerations". In the present case the majority hold that policy considerations "include the appropriateness and feasibility of seeking to define the content of a relevant duty of care".

7. The amorphous character of the extended notion of proximity was perceived by Lord Bridge of Harwich in Caparo Industries Plc. v. Dickman [1990] UKHL 2; (1990) 2 AC 605, at pp 617-618:

"What emerges is that, in addition to the foreseeability of
damage, necessary ingredients in any situation giving rise
to a duty of care are that there should exist between the
party owing the duty and the party to whom it is owed a
relationship characterised by the law as one of 'proximity'
or 'neighbourhood' and that the situation should be one in
which the court considers it fair, just and reasonable that
the law should impose a duty of a given scope upon the one
party for the benefit of the other. But ... the concepts
of proximity and fairness embodied in these additional
ingredients are not susceptible of any such precise
definition as would be necessary to give them utility as
practical tests, but amount in effect to little more than
convenient labels to attach to the features of different
specific situations which, on a detailed examination of all
the circumstances, the law recognises pragmatically as
giving rise to a duty of care of a given scope. Whilst
recognising, of course, the importance of the underlying
general principles common to the whole field of negligence,
I think the law has now moved in the direction of attaching
greater significance to the more traditional categorisation
of distinct and recognisable situations as guides to the
existence, the scope and the limits of the varied duties of
care which the law imposes."

8. There are logical and jurisprudential objections to the employment of "proximity" in its extended sense as a criterion by which to determine whether a duty of care exists in a new category of negligence or to determine whether a relationship is such that, despite reasonable foreseeability, no duty of care has arisen. If the term be used as a description of a relationship out of which a duty of care does arise, it would be a sophism to invoke the term as a criterion to determine whether a duty of care arises. In this case, for example, to say of the relationship between the plaintiff and the first defendant that it was not a proximate relationship and therefore no duty of care was owed would be to state as a conclusion what must be demonstrated to justify the premiss that the relationship was not a proximate one.

9. On the other hand, if "proximity" in the extended sense be invoked primarily as a criterion of the existence of a duty of care, it is too amorphous a concept to serve the purpose. I have elsewhere stated my reasons for rejecting the notion of proximity in its extended sense as a working criterion of liability (San Sebastian, at pp 367-369; Hawkins v. Clayton [1988] HCA 15; (1988) 164 CLR 539, at pp 555-556). This case presents starkly the problem of the inadequacy of content of the notion.

10. Here the parties are driver and passenger in a car. There are few more familiar examples of a proximate relationship. Every fact required to establish the tort of negligence in the ordinary driver and passenger case appears and, in addition, the fact that the plaintiff suffered his injuries in the course of an unlawful use of the motor vehicle in which he was participating. If, in this case, the relationship is to be held not to give rise to a duty of care, it must be on account of some consideration which can, and should, be identified. One may say that that consideration denies to the relationship of driver and passenger the character of proximity and that accordingly no duty of care arises. Or one may say directly that that consideration precludes a duty of care from arising. Whether the proposition be put in one way or the other, "proximity" is surplus to the reasoning. But what is impermissible, in my respectful view, is to employ "proximity" in some extended but undefined sense as the reason why a duty of care, prima facie arising on facts which establish reasonable foreseeability, should be denied. Better to identify the consideration which negates the duty of care than simply to assert an absence of proximity.

11. Uncertainty of content was recognized as a defect in Lord Wilberforce's "second stage" of the test of liability which he expressed in a notable passage in his speech in Anns v. Merton London Borough Council [1977] UKHL 4; (1978) AC 728, at pp 751-752. It will be remembered that Lord Wilberforce's first stage was "proximity or neighbourhood such that, in the reasonable contemplation of the (defendant), carelessness on his part may be likely to cause damage to the (plaintiff)" - a stage which, at least on one view, focusses on foreseeability. The relevant part of the second stage was "whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty". To use the extended notion of proximity as the limiting consideration to determine whether a duty of care arises on facts establishing reasonable foreseeability seems to me, with respect, to reintroduce the approach of Lord Wilberforce which was rejected by this Court in Sutherland Shire Council v. Heyman and by the House of Lords in Murphy v. Brentwood District Council (1990) 3 WLR 414. In my respectful opinion, this Court should not propound as a criterion an extended notion of proximity which would reintroduce the formlessness of Lord Wilberforce's second stage test into the law of negligence where development is needed.

12. By rejecting the extended notion of proximity as a criterion for ascertaining the existence of a duty of care, I should not be taken to reject the desirability of developing the law of negligence. The purpose of judicial development of legal principle is to keep the law in good repair as an instrument of resolving disputes according to justice as it is understood in contemporary society, subject to statute. The law must keep an order and form which admit of practical application, for justice requires both consistency in decisions and discrimination between cases on bases that can be articulated and applied. Principles of law must be adequate to resolve disputes that arise in contemporary society and, so far as practicable, they must be sufficiently precise to be applied without reference to a court. The purpose of judicial development of legal principle is not to espouse a broad theory which, unembarrassed by precise content, can be postulated as an explanation of diverse cases. Were such a theory to be propounded as a legal principle, each judge would be free to give it such content as he or she chooses and the law would become an invitation to litigate, not an instrument of dispute resolution. In a society where values change and where the relationships affected by law become increasingly complex, judicial development of the law is a duty of the courts - more especially when legislative law reform languishes. But the technique of development will be inadequate if, at the end of the day, a legal principle is crafted in words which do not reflect the degree of precision of which the subject matter admits so that the principle is left to derive its content from actual decisions in a multitude of cases. The law is not developed by making working principles obsolete without providing other working principles in substitution.

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

14. If this factor be fatal to the plaintiff's remedy in damages, the plaintiff's lack of remedy may flow from an absence of a duty of care or from some principle, over and above the law of negligence, which operates to preclude the court from granting a remedy on an acknowledged cause of action. It can be taken as settled that, when a plaintiff lacks a remedy in cases of the present kind, the law has denied the existence of a duty of care: Smith v. Jenkins, at pp 400, 403, 419, 425; Progress and Properties Ltd. v. Craft, at pp 656, 668; Jackson v. Harrison, at pp 443, 457. That being so, the effect of the relevant legal principle, when it applies, must be that a defendant, even though he can reasonably foresee the possibility that a plaintiff will suffer damage, does not owe the plaintiff who is his joint participant in the commission of an offence a duty of care in the doing of the act which causes the plaintiff's damage or in the making of an omission which would be held to cause the plaintiff's damage were it not for his participation with the defendant in the commission of the offence.

15. The critical question, of course, is: what is the legal principle which sterilizes a duty of care that would arise on the facts were it not for the joint participation in the commission of an offence? Leaving aside the notion of proximity in the extended sense, the approaches taken in this Court in past cases can be subsumed under one or other of three headings: illegal acts, statutory intent and refusal to hear evidence.
Illegal acts

16. Smith v. Jenkins was a case of joint unlawful use of a motor vehicle by a plaintiff passenger and a defendant driver in which the injured plaintiff failed to establish a duty of care in respect of the defendant's driving of the vehicle. As I read the judgments of Barwick C.J., Windeyer and Owen JJ., their Honours agreed upon the principle "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". That statement of principle, extracted from the judgment of Barwick C.J. in Jackson v. Harrison, at p 442, appears to be supported by the judgments in Smith v. Jenkins delivered by Barwick C.J. (at p 400), Windeyer J. (at pp 421-422), Owen J. (at p 425) and, perhaps, by Kitto J. (at p 403). Although Mason J. in Jackson v. Harrison (at p 453) asserted that Smith v. Jenkins did not decide "that the participants in a joint illegal enterprise owe no duty of care to each other", that was not precisely the proposition which Barwick C.J. sought to advance in Jackson v. Harrison. The proposition was limited, as it had to be, to the absence of a duty of care with respect to the conduct which caused the damage in suit, being conduct "in the performance of the offence" or, to use the language of Windeyer J., "in the actual performance of the criminal act". So limited, I read the effect of the judgments in Smith v. Jenkins in the way in which Barwick C.J. stated it.

17. Barwick C.J., in dissent, adhered to this principle in Progress and Properties Ltd. v. Craft (see p 656) and in Jackson v. Harrison (where, however, his Honour related the principle to an act "in some way connected with the commission of the offence": p 446). In the latter case, his Honour held the principle to apply when the offence is created by regulation as well as by Act of Parliament and to offences created by industrial safety laws (at pp 444-448, 450) though he had recognized in Progress and Properties Ltd. v. Craft (at p 658) that the application of the principle to offences created for the protection of workmen "presents features of harshness which are not readily acceptable in the present-day world". Significantly, in Jackson v. Harrison (at pp 451-452) his Honour allowed that "it must be conceded that there are offences to which the principle does not apply" but no verbal formula could be devised to exclude any offence punishable by fine or imprisonment. In Smith v. Jenkins Windeyer J. found that the criteria advanced in argument were unsatisfactory to distinguish between "criminality in its stricter and more limited sense" and other criminality (at pp 423-424). And Walsh J. held the view (at p 427) that there is no "single rule by which, in all cases, the question raised by a plaintiff's commission of an illegal act, or his participation in it, is to be answered."

18. In Smith v. Jenkins, the Court advanced no qualification to the principle therein stated. Given the unqualified form in which that principle was stated, its application by Barwick C.J. in the later cases is, to my mind, logically compelling and I am unable to see logical grounds for distinguishing Progress and Properties v. Craft and Jackson v. Harrison from Smith v. Jenkins. However that may be, as an unqualified application of the principle in Smith v. Jenkins would deny a remedy even when the offence is of minimal importance, the principle has attracted the criticism levelled against it by Mason J. in Jackson v. Harrison (at pp 453, 455) that it is "too Draconian to command acceptance".
Statutory intent

19. In Henwood v. Municipal Tramways Trust (S.A.), where a passenger, being sick and leaning out of a tram, was killed by striking his head on posts which were too close to the tram, his parents recovered damages against the tramway authority despite the deceased's breach of a by-law forbidding leaning out of a tram. Dixon and McTiernan JJ. (at pp 464-465) construed the by-law as imposing a penalty but not as intending to affect the liability of the authority arising from the propinquity of the posts to the tram track and the lack of suitable guard rails on the tram. Although in Jackson v. Harrison Mason J. (at p 452) thought that the principle of Smith v. Jenkins as enunciated by Barwick C.J. was "at variance with the philosophy underlying Henwood v. Municipal Tramways Trust (S.A.)", the two cases were, as Barwick C.J. was surely right to point out (at pp 446-447), "in a different field of discourse". In Henwood v. Municipal Tramways Trust (S.A.), the defendant was under an acknowledged duty of care to its passengers and the question was simply whether a breach of the by-law by the deceased which was a contributing cause of his death denied the remedy to which the plaintiffs were otherwise entitled by reason of the defendant's conduct; in Smith v. Jenkins, the question was whether a duty of care is owed in respect of conduct in which the plaintiff was a criminal participant. In the former class of case, what is relevant is the intent of the statute to deny a civil remedy in damages for which the defendant is liable by reason of his conduct; in the latter, what is relevant to the existence of a duty of care is the set of circumstances (including the conduct of the respective parties) out of which the alleged duty is said to arise. A statute creating an offence could conceivably provide that a plaintiff injured in the course of a joint commission of the offence by the carelessness of his co-offender should or should not have a remedy in damages, but the legislature does not usually turn its mind to the civil claims of co-offenders inter se. It is difficult to see how an intent of that kind could properly be imputed to a statute which simply creates an offence or defines the parties to an offence.

20. Although statutory intent offers no satisfactory basis for resolving civil claims between co-offenders arising out of carelessness in the commission of offences, the harshness of an undiscriminating application of the principle in Smith v. Jenkins needs to be relieved. It is desirable, if possible, to postulate a ground of distinction between criminal conduct in respect of which no duty of care between co-offenders can arise and criminal conduct in respect of which a duty of care between co-offenders can arise. The judgments of the majorities in Progress and Properties v. Craft and Jackson v. Harrison sought to make such a distinction but, as we shall see, the basis of the distinction was not identified.
Refusal to hear evidence

21. In Bondarenko v. Sommers (1968) 69 SR(NSW) 269, Jacobs J.A, then sitting in the Court of Appeal of New South Wales, pointed out (at p 276) that -

"it is often the criminal relationship between the plaintiff
and the defendant which is the starting point in the inquiry
whether the crime bars the plaintiff from recovery for the
defendant's breach of duty of care."

Holding that there must be a relation between the criminal act and the act of negligence complained of, his Honour said (at p 275):

"If, to use the language of Latham C.J. in Henwood's case,
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."

22. In Progress and Properties Ltd. v. Craft, his Honour, sitting in this Court and speaking for the majority, said (at p 668):

"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. 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."

And in Jackson v. Harrison, his Honour (with the concurrence of Aickin J.) adhered to what he had said in the earlier cases. He said (at pp 457-458):

"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.
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."

His Honour added, in accordance with Henwood's Case as he saw it, that, if the purpose of the law creating a statutory offence is not expressed to disentitle a person doing the prohibited act from complaining of the other party's neglect or default, that purpose can 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 p 459.

23. In Jackson v. Harrison (at p 456) Mason J. considered the law to have been stated correctly by Jacobs J. in Progress and Properties Ltd. v. Craft, though Mason J.'s formulation of the relevant principle was not identical with the formulation by Jacobs J.:

"A plaintiff will fail when the joint illegal enterprise in
which he and the defendant are engaged is such that the
court cannot determine the particular standard of care to
be observed." (Emphasis added.)

This criterion, in his Honour's view, mitigated the harshness of the Smith v. Jenkins principle. He said (at pp 455-456):

"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), stands in a somewhat
different position."

24. The legal principle which underlies the approach of the majorities in Progress and Properties Ltd. v. Craft and Jackson v. Harrison is, if I may respectfully say so, not easy to discern. What is the rule which leads a court to refuse to hear relevant evidence or which precludes it from hearing such evidence? Bearing in mind that a common law duty of care in the Donoghue v. Stevenson category arises from the facts of a case, on what basis is a plaintiff who seeks a remedy for breach of an alleged duty of care to be shut out from adducing the evidence to establish the duty? And, once the facts are proved, all that remains for the court to do in determining the standard of care is to apply community standards - the standards of a hypothetical reasonable person in the defendant's position. As Walsh J. pointed out in Smith v. Jenkins (at pp 431-432), the reception of evidence of criminal conduct is no affront to the dignity of a court. Indeed, a reference to Cook v. Cook, where the plaintiff was a joint participant in the unlicensed driver's illegal conduct (though the question of illegality was not raised as an issue and where the Court omitted to consider the question), shows that there was no obstacle in the way of hearing evidence bearing on the duty of care and the standard required to discharge it. Nor did the Full Court in the present case find any such obstacle. Even if one takes the illustration of the safe-blowing burglars, it is not hard to see that, on any standard, it is careless for the burglar with the plunger to detonate the charge while the other is attaching the gelignite to the safe. A standard of care can be determined, albeit the standard is that of the reasonable safe-blower and is attenuated by the exigencies of the crime or, as in the case of Cook v. Cook, the standard is that of the reasonable inexperienced and unlicensed driver.

25. Moreover, the proposition that the court will not or cannot hear evidence to establish a duty of care or a standard of care in some cases but will hear such evidence in others offers no criterion for determining in which cases a plaintiff will fail and in which cases a plaintiff may succeed. The principle enunciated by Jacobs J. that there be "a relationship between the act of negligence and the nature of the illegal activity" is not self-explanatory. It may be that his Honour had in mind that the illegality affects the standard of care applicable to the relevant act or omission - for example, by necessitating secrecy, subterfuge or haste. But that approach would allow a co-offender, even in the most serious of crimes, to recover if he could show that the illegality did not affect the care which could be expected in the execution of the crime. The burglar might be liable in negligence for precipitately pushing the plunger if the burglary were proceeding smoothly with no risk of detection] If the "nature of the illegal activity" be relevant, the problem of articulating the criterion which distinguishes conduct in the commission of offences of one nature from conduct in the commission of offences of another nature remains. It is immaterial that the mechanism for denying a remedy is a refusal to hear evidence; what is material is the principle which distinguishes offences of one nature from offences of another. In considering the "relationship between the act of negligence and the nature of the illegal activity", Jacobs J., seeking some guidance from Henwood's Case, would have the court consider in the case of a statutory offence whether it is part of the purpose of the law creating the offence to disentitle a person doing the prohibited act from complaining of the other party's neglect or default: Jackson v. Harrison, at p 459. With respect, that puts the facts the wrong way around: 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 a party to the offence - whether by common purpose, aiding, abetting, encouraging, counselling or procuring - so affects the relationship that no duty of care is owed to him by the defendant. It must be the plaintiff's participation in the offence which might affect the defendant's liability. A defendant does not avoid liability to an innocent plaintiff by showing that the negligence occurred in the course of the defendant's commission of a crime.

26. None of the approaches thus far adopted in this Court is wholly satisfactory. The unqualified Smith v. Jenkins principle at least furnishes a criterion, but it is too Draconian in its application. If some other approach is to be adopted, the starting point must be the reason why a plaintiff's participation in illegal conduct should affect the arising of a duty of care. In Jackson v. Harrison, Murphy J., recognizing (at p 464) that "denial of recovery is a question of judicial policy" (or, as I should prefer to put it, a question of the policy of the law), thought that recovery should be denied on the ground of illegality "only where denial is statutory policy" and that, those (rare) cases apart, "recovery should be denied only where there is a voluntary assumption of the risk" (at p 466). That view is at one extreme; the unqualified principle of Smith v. Jenkins is at the other.

27. Then why should a plaintiff's participation in a defendant's commission of an offence prevent a duty of care to the plaintiff from arising? In broad terms, because the civil law cannot condone breaches of the criminal law. To say that is to invite inquiry into two further questions: first, in what circumstances may the admitting of a duty of care condone a breach of the criminal law? and, second, are all criminal laws of such a kind that the admission of a duty of care as between participants in their breach necessarily amounts to condonation? One question relates to the facts of the case, the other to the nature of the offence created by the law breached by plaintiff and defendant.

28. The admitting of a duty of care may condone a breach of the criminal law in which plaintiff and defendant participate if the postulated duty of care arises from their engaging in conduct in breach of the law. Thus, it would condone the burglars' breach of the law if the civil law admitted a duty of care owed by one burglar to another in respect of what they do in committing or attempting to commit the burglary. By contrast, the civil law would not be condoning a breach of a law creating an offence by admitting a duty of care arising out of a relationship between the plaintiff and the defendant to which their participation in the breach is immaterial. One swindler may owe a duty of care to another who is a passenger in his car, though they are on their way to effect a swindle. It is a question of fact whether a breach of the criminal law is material to the relationship out of which a duty of care is said to arise.

29. Where the plaintiff and the defendant respectively engage in conduct in breach of the criminal law and their relationship in engaging in that conduct would, apart from the illegality, give rise to a duty of care owed by the one to the other, the question whether the admitting of that duty of care condones the breach depends, in my view, on the nature of the offence. It is necessary to distinguish between offences which preclude the admission of a duty of care in respect of what is done by the plaintiff and defendant in committing or attempting to commit them and offences which do not preclude the admission of such a duty of care. The distinction is necessary not only to avoid the reproach of a Draconian rule but also to reflect the reality that the admitting of a duty of care in respect of conduct in breach of some laws does not condone their breach. It is only where the admission of a duty of care impairs the normative influence of the law creating an offence that the civil law can be said to condone a breach of that law. In such cases, it would be contrary to public policy to admit a duty of care as between co-offenders in the commission of the offence.

30. The penalties and, indeed, the whole panoply of the criminal law are designed to secure obedience to its commands, whereby the peace and order of society are protected. The essential purpose of the criminal law is normative; if that were not so, the imposition of criminal punishments would be uncivilised. As the criminal law is the chief legal means by which the peace and order of society are protected, no doctrine of the civil law can be allowed to impair the criminal law's normative influence. Subject to that consideration, however, there is no reason why a breach of the criminal law to which a plaintiff is party should sterilize a duty of care otherwise owing to him by the defendant. To approach the problem in this way is not the same as seeking to divine the intent of a statute creating an offence: the problem is not to find or to impute a legislative intention to bar a civil remedy, but to limit the admission of a civil duty of care in order not to trespass upon the operation of the criminal law.

31. In the case of more serious crimes, it would be absurd to admit a duty of care as between co-offenders in respect of the conduct by which the crime is committed: the conduct of the co-offenders is such that the relationship between them is essentially criminal in character. On the other hand, in the case of offences created by industrial safety legislation, the admitting of a duty of care would ordinarily reinforce the normative influence of the law creating the offence: far from condoning breaches of such laws, the admitting of a duty of care would frequently enhance a defendant's incentive to observe them. In the case of serious crime, the commission of the crime is usually the sole or dominant purpose of the conduct; contraventions of industrial safety legislation by a plaintiff and defendant ordinarily occur in the course of conduct engaged in for some legitimate purpose. In between these two clases of offences, there are many offences which are difficult to place confidently on one side of the line or the other.

32. The problem is to describe the criminal laws whose normative influence would be impaired by admitting a duty of care in respect of conduct engaged in by co-offenders in committing them. None of the familiar divisions of offences (offences created by Act and offences created by regulation, statutory offences and common law offences, crimes and misdemeanours, indictable and summary offences, arrestable and non-arrestable offences, divisions according to maximum penalties) can serve as definitions of the required dividing line, as Barwick C.J. acknowledged in Jackson v. Harrison, at p 451. Yet, if there is to be a dividing line, the court must distinguish between the offences on either side of it. In determining whether the admitting of a duty of care would impair the normative influence of a law creating an offence, the matters to be considered include the gravity of the offence, the threat to public order or public safety or the infringement of the rights of third parties which the law seeks to prevent, any other mischief at which the law creating the offence is aimed, the penalties prescribed for breach of the law and the effectiveness of those penalties to secure obedience to the law if a duty of care be admitted. The breach of a law that is classified as not likely to be impaired in its normative influence by the admitting of a duty of care will ordinarily be committed in the course of conduct engaged in for a legitimate purpose. But I do not think that laws creating criminal offences can or should be classified by reference to the circumstances of particular cases, for that would lead to ad hoc decisions in which the normative effect of the criminal law would be hostage to the particular circumstances of the case, perhaps including the extent of the plaintiff's injury. The classification must be made by reference to the general operation of the criminal law, which can secure obedience to its terms only if it operates uniformly in all cases.

33. The principle that there is no duty of care where the admission of the duty would condone a breach of the criminal law is, regrettably but inevitably, one that calls for a classification of the laws creating offences according to the effect which admission of the duty would have on their normative influence. The principle cannot be expressed in a way which is self-executing in the sense that there is no evaluation to be made. When the law creating the offence is of the class to which the principle applies, no duty of care arises between co-offenders in respect of conduct engaged in in the course of committing the offence or in attempting to commit the offence (or, it should be added, in being an accessory after the fact to the offence where being an accessory after the fact is an offence). If the normative effect of the criminal law is not to be impaired, the principle must extend to all conduct falling within these descriptions, not merely to conduct which in itself amounts to a complete element of an offence of the relevant kind.

34. Is the principle applicable to offenders engaged in the unlawful use of a motor vehicle contrary to s.408A of the The Criminal Code? Section 408A creates an offence which is not only akin to stealing but which is aimed at preventing conduct that frequently results in road accidents and attendant damage to the person and property of others (including the vehicle being unlawfully used). It is a serious offence against the owner or person in lawful possession of the vehicle and against the public. To admit a duty of care owed by one offender to a co-offender in the unlawful use of a vehicle would be to assure the co-offender of compensation for damage to himself occurring in the course of conduct which damages the interests of the person from whose possession the car is taken and carries the risk of damage to others. The normative influence of s.408A would be destroyed by admitting a duty of care. Applying the principle stated, the duty of care must be denied - a result in accord with the decision in Smith v. Jenkins.

35. It follows that, in my view, the appeal should be allowed, the judgment of the Full Court of the Supreme Court should be set aside and the judgment of the District Court restored.

DAWSON J. The plaintiff (respondent) was a passenger in a motor car driven by the first defendant (first appellant). As a result of the careless driving of the first defendant, the motor car left the roadway and collided with a tree. The plaintiff was injured. He seeks to recover damages for his injuries and, apart from the fact that at the time of the accident he and the first defendant were jointly engaged in the illegal use of the motor car, he would be entitled to recover.

2. But it is contended that Smith v. Jenkins [1970] HCA 2; (1970) 119 CLR 397 stands as an authority which would deny the plaintiff his entitlement to damages. In Smith v. Jenkins the plaintiff failed to recover damages for injuries which he received in a motor car accident because at the time of the accident he and the defendant were both involved in the illegal use of the motor car in which they were travelling. I agree with Brennan J. that Smith v. Jenkins is indistinguishable upon its material facts from the present case, but we are invited to re-examine the principle upon which Smith v. Jenkins rests in the light of 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 the joint illegal enterprise in which the plaintiff and the defendant were engaged precluded, as a matter of policy, the recognition of any duty of care on the part of the defendant.

3. The other decisions are of limited assistance in throwing light upon the true basis for the decision in Smith v. Jenkins. In Henwood v. Municipal Tramways Trust (S.A.) [1938] HCA 35; (1938) 60 CLR 438, the deceased was fatally injured when he leant out of the window of a tram. His head struck two steel standards which were negligently placed too close to the tram. In leaning out of the window the deceased was in breach of a by-law made by the Tramways Trust. Nevertheless, his parents recovered damages in a Wrongs Act claim against the Tramways Trust. It was not a case in which the injured person was engaged in a joint criminal enterprise. The injury was caused, not by his illegal act, but by the negligence of the Tramways Trust. The illegal act of the deceased amounted at most to contributory negligence.

4. In Progress and Properties Ltd. v. Craft [1976] HCA 59; (1976) 135 CLR 651 the plaintiff, a workman on a building under construction, was injured when a goods hoist upon which he was being carried fell to the ground. The operator of the hoist was in breach of a regulation in allowing the plaintiff to ride on the hoist and the plaintiff was in breach of the same regulation in riding on the hoist. The plaintiff and the operator were, therefore, jointly engaged in an illegal enterprise. Nevertheless, the plaintiff recovered damages arising from the negligent operation of the hoist. It was held by a majority that joint illegal activity may extinguish a duty of care which would otherwise be owed by one party to another where the nature of the illegal activity is such that a court cannot or will not establish a standard of care. In that case, however, it was held that there was no reason why the court should not determine a standard of care owed by the operator of the hoist to the plaintiff, because it could be determined without reference to the illegality. Moreover, the regulation which created the illegality was for the benefit of one of the participants in the illegal enterprise.

5. In Jackson v. Harrison [1978] HCA 17; (1978) 138 CLR 438 the plaintiff, a passenger in a motor car driven by the defendant, was injured as a result of the defendant's negligence. Both the plaintiff and the defendant were to the knowledge of each other disqualified from holding a driving licence at the time. Notwithstanding this, they agreed to share the driving on the journey during which the plaintiff was injured. They were, for this reason, jointly engaged in an illegal enterprise. Again, a majority held that the plaintiff was entitled to recover. It was held that a duty of care is denied when the character of the illegal enterprise is such that the court cannot properly establish the content of that duty, that is, the standard of care. In that case, however, the content of the duty of care owed by the defendant to the plaintiff could be established without bringing into consideration the illegal nature of the activity in which the parties were engaged.

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

7. But in declining to set a standard of care - and hence to erect a duty of care - in some cases of joint illegal activity, the law is exhibiting an unwillingness rather than an incapacity to do so. As Murphy J. pointed out in Jackson v. Harrison, at pp 463-464:

"Illegal safebreaking where an accomplice is injured by
another's careless use of explosives is often discussed ...
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."

It is, therefore, necessary to seek what lies behind the law's reluctance to set a standard of care to be observed by the participants in a joint criminal enterprise. In such an exercise I do not derive any great help from the notion of proximity as it has been developed in recent decisions of this Court.

8. The requirement of proximity has been a useful means of expressing the proposition that in the law of negligence reasonable foreseeability of harm is not enough to establish a duty of care. Something more is required and currently it is described as a proximate relationship between the relevant parties. But the use of that term does not of itself indicate the content of the requirement. Indeed, "proximate relationship" or "proximity" may not be the happiest choice of terms because it suggests a nearness or closeness of some kind between the parties and it is now perfectly plain that proximity may embrace more than that. The use of the word "proximity" is explained by its appearance in that famous, if somewhat ambiguous, passage in the speech of Lord Atkin in Donoghue v. Stevenson (1932) AC 562, at pp 580-581, in which he describes who, in law, is one's neighbour. Whatever he intended to convey by the use of that word, it is now clear that it extends beyond nearness or closeness, physical or otherwise. This case is a good illustration. If it is said that, notwithstanding the reasonable foreseeability of harm to the plaintiff, there was no duty of care owed to the plaintiff by the first defendant because there was no relationship of proximity between them, it cannot mean that their relationship was not sufficiently close or near. The relationship of driver and passenger is in other circumstances a textbook example of a proximate relationship. What is meant in the present context is that the law does not recognize a duty of care in the circumstances in which the plaintiff sustained his injuries. In other words, proximity embraces considerations unrelated to closeness or nearness and in a case such as the present it is the identification of the underlying principle which is the important thing. Merely to describe it as a matter of proximity is to mask the problem.

9. I do not mean to suggest that the application of the test of proximity produces capricious or arbitrary results. But I think it may be going too far to say, as Deane J. does in Stevens v. Brodribb Sawmilling Co. Pty. Ltd. [1986] HCA 1; (1986) 160 CLR 16, at p 52, that "the notion of proximity can be discerned as a unifying theme explaining why a duty to take reasonable care to avoid a reasonably foreseeable risk of injury has been recognized as arising in particular categories of case". It is, however, true, as Deane J. also points out, that the test of proximity proceeds in accordance with the accepted modes of legal reasoning, particularly reasoning by analogy from decided cases. On the other hand, it would also be going too far to say that the notion of proximity is entirely without content and that no principles emerge from the process of extrapolation from decided cases or categories of decided cases: cf. Howarth, "Negligence after Murphy: Time to Re-think", (1991) 50 Cambridge Law Journal 58, at pp 70-71. For example, there are reasons of general, if not universal application, which lie behind the rule which, for the most part, denies recovery of damages for pure economic loss or the rule which restricts the recovery of damages for nervous shock to a particular kind of plaintiff. But it is obvious that the search for a single principle underlying the concept of proximity is bound to be unsuccessful. That is to be seen from this case itself.

10. If in this case a proximate relationship between the plaintiff and the defendant is to be denied, then it must be upon the basis that as a 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 to say that it is a matter of public policy. It is necessary to identify the policy and to explain its application by reference to its limits. I would express the policy as being the refusal of the law to condone the commission of a criminal offence by granting a civil remedy.

11. I prefer to express myself in that general way and to avoid confining the policy by linking it with the preservation of the normative effect of the criminal law. This is for two reasons. The first is that I doubt that it is possible to gauge the extent to which allowing a civil remedy might impair the normative (especially the deterrent) effect of the criminal law. And as Mason J. said in Jackson v. Harrison, at p 453:

"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."

12. Secondly, I think that the policy goes deeper than possible interference with the normative effect of the criminal law. There would be a fundamental inconsistency between the civil and criminal law if a civil remedy were to be afforded to one accomplice against another based upon the latter's failure to observe a standard of care fixed by reference to their joint criminal activity. That one should seek to ameliorate his position at the expense of the other in that situation would be wholly repugnant to the accepted standards of the law. That is, I think, what Windeyer J. had in mind in Smith v. Jenkins when he said, 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. How it be analysed and explained matters not."

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

13. The limits which have been set in the application of the basic policy do, I think, indicate its true scope. The standard which the law of negligence applies to a duty of care created by it is in most cases no more or less than the standard of the reasonable person. But the law recognizes that there is a special character about some relationships which requires the modification of that standard by reference to the particular circumstances. Adopting an example given by Latham C.J. in The Insurance Commissioner v. Joyce [1948] HCA 17; (1948) 77 CLR 39, the majority in Cook v. Cook [1986] HCA 73; (1986) 162 CLR 376 said, at p 382:

"if a person were deliberately to agree to allow a
blacksmith to seek to mend his watch, the blacksmith would
be required to act as a reasonable person should in the
circumstances, though he would not be subject to the high
standard of care which would be required of a professional
watchmaker. The reason for that is not that the objective
general standard required by the law of negligence is
abandoned. It is that the more detailed definition of the
content of that objective standard will depend upon the
relevant relationship of proximity from which it flows and
into which the reasonable person of the law of negligence
must be projected; it 'is because that relation may vary
that the standard of duty or of care is not necessarily the
same in every case': per Dixon J., Joyce's Case (at p 56)."

14. I now doubt whether the reference to "proximity" in that passage adds anything to it, but it is clear that the fact that two or more persons are jointly engaged in a criminal enterprise may constitute a special element in their relationship which requires modification of the standard of care if any duty of care between them is to be imposed. The nature of the criminal enterprise may bring with it considerations which would make it quite unrealistic simply to have regard to the standard of the ordinary, reasonable person. Indeed, the ordinary, reasonable person does not find himself or herself in the position of an accomplice in the commission of a criminal offence. It is not, for example, possible simply to apply the standard of the reasonable person to two safe-breakers intent upon blowing up a safe or, for that matter, to two persons engaged in the illegal use of a motor car. If a standard of care were to be set it would require modification by reference to the criminal aspects of the venture. It is at this point that the policy of the law steps in. To give validity to the criminal enterprise by using it as the foundation for erecting 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 be said in those circumstances that the relationship between the participants is not sufficiently proximate to give rise to a duty of care, but to say as much without explaining the reason is to reveal little.

15. Of course, it is not every relationship involving participation in a criminal activity which requires the modification of the standard of care to be imposed upon the participants. In Progress and Properties Ltd. v. Craft, the illegality involved in the use of the hoist introduced no special element into the relationship between the plaintiff and the hoist operator which would have required any modification of the standard of care otherwise required of the latter. And in Jackson v. Harrison the fact that the plaintiff and defendant were each disqualified from holding a driving licence had no necessary bearing upon the standard of care required of each of them toward the other in the driving of the motor car. In those cases, setting the appropriate standard of care did not involve any dependence upon the nature of the criminal activity in which the parties were engaged and for that reason involved no condonation of their breach of the criminal law. Indeed, I think that it can be said that, as a general rule, if not invariably, activities in breach of health or safety regulations are not to be judged by a standard less than that of the reasonable person. Such regulations may, indeed, amount to evidence of that standard.

16. The same could not, in my view, be said of the relationship between two persons jointly engaged in the illegal use of a motor car. The criminal nature of the activity with its concomitant lack of responsibility for the safety of the vehicle involved and the inevitable desire to avoid detection which might result in the imposition of a criminal penalty must mean that the participants in such a venture cannot be placed, as regards each other, in the position of ordinary, prudent users of the road. There is a special element in their relationship which, if a standard of care were to be set, would require its modification by reference to the criminal nature of their activity. It is an element which in this case remained present to affect that relationship during the entire period of the illegal use of the motor car. In these circumstances the law refuses to set a standard of care and, hence, to erect a duty of care.

17. I would allow the appeal.

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

2. The circumstances of the accident, including damage done to the car when it hit a tree, pointed to high speed on the part of the driver and inattention in the manner of driving. Although, for reasons which will appear, the primary judge made no express finding of negligence against the first appellant, it was not disputed that under ordinary circumstances a finding of negligence against the driver of the car was inevitable.

3. 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 third appellants and was insured by the fourth appellant. At about 12 noon on the day of the accident the first appellant, the respondent and two other young men began drinking in the Customs House Hotel, Maryborough. They remained there until about 7.00 p.m. during which time all of them drank a great deal of alcohol. The respondent's evidence was that he consumed in the order of 40 scotches and the others about the same amount of beer. All four decided to steal a motor vehicle and drive it to Gladstone and then to Rockhampton. They found a car (belonging to the second and third appellants) with its keys in the ignition. They got into the car, with the respondent driving. At Childers, which is north of Maryborough, the respondent handed over the driving to the first appellant and sat in the back of the car. During the journey the four men consumed a carton of stubbies of beer. After handing over the driving, the respondent fell asleep and was still asleep when the car left the road. He was not wearing a seat belt.

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

5. The reason why the primary judge did not make an express finding of negligence against the first appellant was because he took the view that the "journey north in which the (respondent) and the first (appellant) were engaged was a joint unlawful use of the motor vehicle" and that, having regard to the authorities cited to him, "this is a case in which I cannot determine an appropriate duty of care owed by the first (appellant) to the (respondent)". The latter passage involves a blend of two distinct concepts, duty of care and standard of care, an important distinction to which I shall refer later in these reasons. His Honour went on to hold that, had the first appellant owed a duty of care, the respondent was contributorily negligent to the extent of 60% because of his consumption of alcohol with consequent impairment of his capacity to assess the first appellant's capacity to drive the car and because the respondent was not wearing a seat belt at the time of the accident. The determination of contributory negligence has not been challenged nor has the primary judge's assessment of the damages to which the respondent would have been entitled had the first appellant been found negligent.

6. An appeal by the respondent to the Full Court of the Supreme Court was allowed (Connolly, McPherson and Williams JJ.). Williams J. wrote the principal judgment; Connolly J. concurred with Williams J.; McPherson J. also concurred with the orders proposed by Williams J. but added some observations of his own. The decision of the Full Court resulted in a judgment in favour of the respondent for damages in the amount assessed by the primary judge, reduced in accordance with the determination of contributory negligence. From that judgment the appellants appealed to this Court.

7. Any consideration of the implications of conduct constituting a criminal offence for a person who suffers injury in the course of that conduct must begin with Smith v. Jenkins [1970] HCA 2; (1970) 119 CLR 397. Although that decision was distinguished in Progress and Properties Ltd. v. Craft [1976] HCA 59; (1976) 135 CLR 651 and Jackson v. Harrison [1978] HCA 17; (1978) 138 CLR 438, unless and until overruled it stands as an authority to be followed where applicable. The respondent invited this Court to distinguish Smith v. Jenkins in the present case and, if this was not thought possible, to overrule it.

8. In Smith v. Jenkins the respondent was injured by the negligent driving by the appellant of a car which both were using unlawfully, in breach of s.81(2) of the Crimes Act 1958 (Vic.). All members of the Court (Barwick C.J., Kitto, Windeyer, Owen and Walsh JJ.) held that the respondent could not recover damages from the appellant. But the basis upon which recovery was refused differed. Barwick C.J., at p 400, posed the options in this way:

"The choice it seems to me is between a refusal of the
law to erect a duty of care as between persons jointly
participating in the performance of an act contrary to the
provisions of a statute making their act a crime punishable
by imprisonment and a refusal of the courts, upon grounds
of public policy, to lend their assistance to the recovery
of damages for breach in those circumstances of a duty
of care owed by the one to the other, because of the criminally
illegal nature of the act out of which the harm arose."

9. Barwick C.J. put his decision on the former basis. While accepting that considerations of public policy have their place in any decision to impose or erect a duty owed by one person to another, his Honour continued:

"But basically it is the relationship of the parties which
gives rise to the duty. Here the respondent and the
appellant ... did not 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 respondent arose. ... the law
will not hold that a duty of care arose out of that relationship.

10. It will be necessary to look more closely at the absence of a duty of care approach because of the importance it assumes in later decisions. It is enough for the moment to note that the relationships identified by Barwick C.J. are not by their nature mutually exclusive though the law may choose so to regard them.

11. Kitto J. did not think that the case was one where the illegality prevented the creation of a relationship as the source of a duty of care but he thought it was one:

"falling within the reason which Scrutton L.J. ... gave (in
Hillen v. I.C.I. (Alkali) Ltd. (1934) 1 KB 455, at p 467)
..., namely that 'the whole transaction is known by
each party to be illegal and there is no contribution or
indemnity between joint wrongdoers'": at p 403.

"The underlying reason", said his Honour, at p 403, "is that in such a case the law regards the joint illegal conduct as the commission of a single wrong of which, as a whole, each participant is guilty."

12. It is hard to do justice, in a line or two, to the learned discussion by Windeyer J. But it is clear that his Honour approached the matter by asking, not whether the plaintiff was precluded from asserting a right of action, but by asking: "is there for him a right of action?" That in turn depended upon "whether in the circumstances the law imposed a duty of care; for a right of action and a duty of care are inseparable. The one predicates the other": at p 418. In the end Windeyer J. expressed the relevant test in these terms, 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. How it be analysed and explained matters not."

13. Owen J. too put the matter in terms of an absence of a duty of care, by saying, at p 425:

"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".

14. Walsh J. was at pains to eschew any general rule to which all actions involving an unlawful act might be subject. But, at p 429, his Honour formulated the relevant question in these terms:

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

Walsh J. considered that, upon the facts of the case, the act of driving was not merely connected with the execution of a criminal purpose but was itself the criminal act of illegally using the car, a criminal act which the plaintiff also committed by his presence in the car: see at p 433. He concluded, also at p 433:

"no right of action in negligence is given by the law in
respect of the carrying out by one of the participants in a
joint criminal enterprise of the particular criminal act in
the commission of which they are engaged".

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

16. Professor Julius Stone has observed:

"Two main methods of finding the ratio of a case are
currently regarded as permissible and proper: one which
seeks the holding on 'the material facts' of the preceding
case, the other which seeks the rule propounded by the
precedent court as the basis of its decision. In the
material facts version, the ratio decidendi is that reason
which 'explains' (or is 'the basis' of, or is 'necessary
to explain') the holding by the precedent court on 'the
material facts' as identified by the precedent court. In
the rule-propounded version, the ratio decidendi is that
reason which is propounded by the court as 'the basis' of
(or as 'explaining', or as 'necessary' for 'explaining')
its decision": Precedent and Law, (1985), p 123.

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

"The respondent was injured through the appellant's
negligent driving of a motor car which both parties were
unlawfully using contrary to the provisions of s.81(2) of
the Crimes Act 1958 (Vict.).
Held, that the respondent could not in the circumstances
recover damages from the appellant."

With the appropriate identification of the parties and the statutory provision involved, that statement applies directly to the facts of the present case.

18. 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 is for a reason which explains the basis for the decision. For this purpose, I think that one can put to one side the judgment of Kitto J. as his Honour's approach was not shared by other members of the Court. (Cf. Barwick C.J. in Jackson v. Harrison, at p 443.) The judgment of Barwick C.J. in Smith v. Jenkins was clearly founded on the refusal of the law to erect a duty of care as between participants in a crime out of the commission of which the mischief to the injured person arose. Windeyer J. must be taken to have held, as a consequence of his analysis, that, because participants in the commission of a crime take the risk of negligence on their part in the actual performance of the criminal act, no duty of care is owed by one to the other. Owen J. took much the same approach as Windeyer J. Walsh J. expressed the matter in terms of right of action rather than duty of care though, no doubt, one underlay the other.

19. In the judgments of Barwick C.J., Windeyer J. and Owen J. in Smith v. Jenkins there is to be found a common approach. The headnote 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 actual performance of the criminal act."

As a statement of the views of three Justices concerned, the statement is accurate, though, for completeness and to avoid the mistake of marking out the notion of volenti as the precise basis for the approach, it needs the addition of a sentence along these lines: "In those circumstances neither participant owes a duty of care to the other." Again, the statement in the headnote, with the suggested addition, 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 by the respondent which itself was based on the approach taken by the Full Court in the present case?

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

21. Progress and Properties Ltd. v. Craft concerned an action for negligence and breach of statutory duty brought by a workman against his employer when a goods hoist in which he was travelling in a building under construction fell to the ground at high speed after the operator's foot slipped off the lift brake. A regulation in force precluded any person "other than a workman engaged in bona fide maintenance work" (and Craft was not so engaged) from travelling in a goods hoist. Craft entered the hoist with the concurrence of its operator. Progress and Properties Ltd. included in its defence a plea that, at the time of the accident, Craft and the operator were participating in a joint illegal venture. Stephen, Mason and Murphy JJ. agreed with Jacobs J., whose rejection of the plea of illegality was essentially on the ground that the act or omission of negligence complained of was not the act of permitting Craft to ride on the hoist, "but (was) the act of negligently failing properly to operate the foot brake and control the descent of the hoist": at p 668. Later on that page his Honour explained: "Whether or not it was legal to ride on the hoist platform the same standard of care in operating the hoist would be expected of the operator".

22. Jacobs J. referred to Smith v. Jenkins but only for the purpose of distinguishing it in these terms:

"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": at p 668.

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 the breach of specific statutory duties of care for the safety of one of the participants": at p 669. Barwick C.J. dissented because he thought Smith v. Jenkins indistinguishable.

23. 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 relationship between the unlawful act and the negligence complained of but that does not affect the principle involved. More particularly, the judgments in Smith v. Jenkins focus on conduct amounting to the commission of a crime; they say nothing as to the breach of a regulation aimed at protecting persons in the position of Craft. The contrary view expressed by Barwick C.J. in Progress and Properties Ltd. v. Craft, at p 659, is one that I cannot share.

24. Smith v. Jenkins was once more distinguished in Jackson v. Harrison. This case concerned an action for negligence by a passenger in a car being driven by the defendant who was disqualified from holding a driver's licence at the time and was driving the car in breach of the Motor Vehicles Act 1959 (S.A.), s.91(5). A majority of the Court (Mason, Jacobs, Murphy and Aickin JJ.) held that the plaintiff was not precluded from recovering damages. Barwick C.J. again dissented on the basis that Smith v. Jenkins was directly applicable.

25. In his dissenting judgment Barwick C.J. referred to the individual judgments in Smith v. Jenkins and, at pp 443-444, concluded:

"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.
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."

26. With the first paragraph of that assessment of Smith v. Jenkins, I respectfully agree. As to the second paragraph, I read the judgments in Smith v. Jenkins as refusing to find a duty of care in circumstances where the injury to the plaintiff arises from the conduct which constitutes the commission of a crime. I find no warrant in the judgments in Smith v. Jenkins for extending its operation beyond that situation. And in Smith v. Jenkins the Court was not directing its attention to any distinction between felonies and misdemeanours (as in the common law) or between crimes and misdemeanours (as in the Criminal Codes) but rather to a situation in which a serious criminal act was involved.

27. Of the majority in Jackson v. Harrison, Mason J. said that Smith v. Jenkins did not decide that the participants in a joint illegal enterprise owed no duty of care to each other. He said, at pp 453-454:

"The case was limited to its particular facts. They
involved the illegal use of a motor vehicle ... The
members of the Court assigned a variety of reasons for
arriving at this result, no particular reason commanding
universal or even majority acceptance."

For reasons given earlier in this judgment I am of opinion that it is possible to extract a reason which commanded the view of a majority. Mason J. rejected as draconian a rule which precluded recovery by a plaintiff passenger who knows that his driver is committing a breach of the law in driving the vehicle because he is unlicensed or because the vehicle does not comply with motor traffic requirements: see at p 453. With that observation I respectfully agree and no such rule is demanded by Smith v. Jenkins. His Honour's conclusions were derived from this proposition, to be found at pp 455-456:

"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."

In Pitts v. Hunt (1990) 3 WLR 542, at p 558; [1990] EWCA Civ 17; (1990) 3 All ER 344, at p 358, Balcombe L.J. found himself "in complete agreement" with that passage.

28. There are two comments that may be made on the passage from the judgment of Mason J. just quoted. The first is that Smith v. Jenkins was decided by reference to the unlawful nature of the activity in which the participants were engaged. The second is that the notion of the impossibility of determining the standard of care appropriate to those engaged in an illegal enterprise is to posit a test which is open to the criticism that, in some such situations, it may not be at all hard to determine an appropriate standard of care. And, on one view, the present case is a good example of a situation in which a standard of care may be determined without much difficulty. It is of course possible to conceive of a scenario in which two persons agree to steal a car, in which the likelihood of pursuit is great as is the need to travel at high speed to evade pursuit. In those circumstances it would be nigh on impossible to spell out a standard of care to meet the situation in which an accident occurred during the pursuit. See, by way of illustration, Bondarenko v. Sommers (1968) 69 SR(NSW) 269. On the other hand, two persons may agree to steal a car from a parking lot, in circumstances where its absence may not be noticed for some time, and then to drive a relatively short distance and abandon the car. If, during that drive, the driver's attention wanders and an accident occurs, where is the difficulty in determining a standard of care? Take the quaint example offered by Scrutton LJ. in Hillen v. I.C.I. (Alkali) Ltd. (1934) 1 KB 455, at p 467, of the smuggler who is injured when a rope, used to lower kegs of brandy into the cellar of a confederate who knows the rope to be defective, breaks. There is no difficulty in formulating a standard of care owed by the owner of the building in those circumstances. That is not to say that a claim for damages for negligence in those various circumstances should succeed; indeed Smith v. Jenkins is against success. It is to say no more than that the formulation suggested by Mason J. may meet some situations but not others. See also Murphy J. in Jackson v. Harrison, at p 463.

29. In Jackson v. Harrison Jacobs J. adhered to the approach he had taken in Progress and Properties Ltd. v. Craft, saying, at p 457:

"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."

His Honour did not think that Jackson v. Harrison was such a case, a view which is readily understandable given the nature of the illegality relied upon. Murphy J. approached the resolution of the problem in this way, at p 466:

"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."

Aickin J. agreed with Jacobs J.

30. There is much force in the comment of Dillon L.J. in Pitts v. Hunt, at p 566; p 364 of All ER:

"Both Jackson v. Harrison ... and Progress and Properties
Ltd. v. Craft ... can be regarded as cases within
Bingham LJ.'s category, in Saunders v. Edwards (1987)
1 WLR 1116 ((1987) 2 All ER 651), of cases where
the plaintiff had suffered a genuine wrong to which his
allegedly unlawful conduct was merely incidental."

31. Against that background of decisions of this Court it is useful to turn in the instant case to the judgment of Williams J. in the Full Court: (1990) 1 Qd R 170. His Honour examined the three decisions to which I have referred and also the decision of this Court in Cook v. Cook [1986] HCA 73; (1986) 162 CLR 376. In my opinion, Cook v. Cook has nothing to say as to the resolution of this appeal. But that was not the view of Williams J.; his Honour saw in that decision a reconciliation between the various decisions of this Court. His Honour said, at p 178:

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

On this approach, Williams J. saw Smith v. Jenkins as "a decision on the special and exceptional facts as seen by the court, and interpreted in that way is not inconsistent with the later decisions. But for present purposes this Court must apply the principle as established in Craft, Jackson, and Cook to the facts of this case": at p 179.

32. Cook v. Cook concerned an action for damages for negligence brought by a passenger in a car driven by an inexperienced and unlicensed driver. Mason, Wilson, Deane and Dawson JJ. held that ordinarily there is a relationship of proximity between driver and passenger and that the standard of care is objective. But in exceptional circumstances, such as that of driving instructor and pupil, the standard of care may be other than that of a qualified and competent driver. This was such a case. Brennan J. expressed the position in terms of a duty of care to be expected "of a person of ordinary prudence who is disabled by the unusual condition of which the passenger has knowledge": at p 393. It is apparent from the judgments of this Court and also from those of the Full Court of the Supreme Court of South Australia (see Cook v. Cook (1986) 41 SASR 1) that there was no plea of illegality by the defendant. In none of the judgments 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 expected of a learner driver in the circumstances. The case was not disposed of by reference to the presence or absence of any duty of care or to the impossibility of propounding a standard of care in the circumstances. The Full Court of the Supreme Court of Queensland was in error in regarding Cook v. Cook as laying down principles by which the instant litigation is to be determined.

33. On the facts of the present case it is not possible to distinguish Smith v. Jenkins. The question then is: should Smith v. Jenkins be overruled? There has been criticism of the decision in legal writings: see for instance Fleming, The Law of Torts, 7th ed. (1987), p 278; Ford, "Tort and Illegality: The Ex Turpi Causa Defence in Negligence Law", (1977-1978) 11 Melbourne University Law Review 32, 164; Weinrib, "Illegality as a Tort Defence", (1976) 26 University of Toronto Law Journal 28; Fridman, "The Wrongdoing Plaintiff", (1972) 18 McGill Law Journal 275. Much of the criticism is directed at the relevance of the maxim ex turpi causa non oritur actio in contemporary law. But in Smith v. Jenkins Windeyer J. was at pains not to base his judgment on the maxim. Indeed, at p 414, he said:

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

Nowhere in the other judgments in Smith v. Jenkins or those decisions that came after it is reliance placed upon the maxim. Such criticism of Smith v. Jenkins as is based upon an attack on the place of the maxim in the law of tort seems to me therefore to be misplaced.

34. Likewise, criticism that assumes that the Court, in Smith v. Jenkins, was simply applying its own notions of public policy should be treated with caution. As Barwick C.J. pointed out in that case, considerations of public policy play a part in the decision whether to impose or exact a duty of care. Essentially, Smith v. Jenkins turns on the unwillingness of courts to find such a duty in circumstances where, although there is a relationship between the parties which ordinarily would give rise to a duty of care, the injury to the plaintiff arises from a serious criminal act in which both plaintiff and defendant participated. That is the basis for the decision in Smith v. Jenkins and that is the extent of its operation.

35. When the true scope of Smith v. Jenkins is fully understood, much of the criticism directed at the decision falls away. It is not of wide operation; in particular, it does not preclude recovery in cases which involve no more than a breach of a regulation, or which turn on a negligent act or omission which is merely incidental to the commission of an offence. It gives effect to the view, seen as reflecting prevailing community standards, that a person who is injured while participating in conduct which has been identified by the criminal law as inimical to society should not be entitled to the compensation that the civil law ordinarily provides. To say this is not to summon back the maxim which Windeyer J. "marched off" in Smith v. Jenkins. It is, however, to acknowledge the particular policy considerations that underlie that decision. No doubt, in particular cases questions will arise as to the seriousness of the conduct involved and the sufficiency of the connection between that conduct and the act or omission said to give rise to a cause of action. But that will be a matter for elucidation in those cases: see Swanton, "Plaintiff a Wrongdoer: Joint Complicity in an Illegal Enterprise as a Defence to Negligence", (1981) 9 Sydney Law Review 304, at p 329.

36. Smith v. Jenkins remains as a statement of the unwillingness of the law to lend its support to the recovery of damages by a plaintiff who suffers injury while participating with the defendant in the commission of a serious criminal act, when that act is the act relied upon to found a cause of action. In those circumstances, a duty of care is held not to exist, not because of the difficulty of defining a standard of care but because of the participation by the parties in the criminal activity which resulted in the injury. Smith v. Jenkins is sound law and should not be overruled. It cannot be distinguished on the facts of the present case; those facts involve a serious criminal act from which the claim arises. The appeal should be allowed.

ORDER

Appeal allowed with costs.

Set aside the orders of the Full Court of the Supreme Court of Queensland and, in lieu thereof, order that the appeal to that Court be dismissed with costs.