172 C.L.R.

243

OF AUSTRALIA.

ApPELLANTS;

GALA AND OTHERS

DEFENDANTS,
AND

PRESTON
PLAINTIFF,

RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF QUEENSLAND.

Negligence - Duty of care - Plaintiff and defendant unlawfully using stolen

motor car - Whether driver owed duty of care to passenger - Proximity
- Public policy.
A passenger in a motor car was injured as a result of the driver's careless
driving of the car which they had earlier stolen and were unlawfully using
at the time of the accident contrary to the provisions of s. 408A of The
Criminal Code (Q.).
Held, that the passenger could not in the circumstances recover damages
from the driver; by Mason e.J., Deane, Gaudron and McHugh n. on the
ground that the parties were not in a relationship of proximity to each
other so that the driver owed a relevant duty of care to the passenger; by
Brennan J. on the ground that to admit a duty of care would destroy the
normative influence of s. 408A; by Dawson J. on the ground that to permit
the criminal enterprise in the case to be used as the foundation for erecting
a standard of care would be to condone a breach of the criminal law; and
by Toohey J. on the ground that the driver owed no duty of care to the
passenger because his injury arose from a serious criminal act in which
both participated.
Smith v. Jenkins (1970), 119 C.L.R. 397; Progress and Properties Ltd. v.
Craft (1976), 135 C.L.R. 651; Jackson v. Harrison (1978), 138 C.L.R. 438;
and Cook v. Cook (1986), 162 C.L.R. 376, considered.
Decision of the Supreme Court of Queensland (Fun Court): Preston v.
Gaia, [1990] I Qd R. 170, reversed.

ApPEAL from the Supreme Court of Queensland.

On 14 August 1984 Frank Raymond Preston was injured when a
motor car driven by Michael Gala struck a tree near Gladstone in
Queensland. Earlier that day Preston, Gala and two other men,
having consumed large quantities of alcohol, had stolen the car, and
at the time of the accident were unlawfully using it contrary to
s. 408A of The Criminal Code (Q.). Preston sued Gala and the
owners of the vehicle in the District Court for damages for
negligence. The third party insurer of the owners became a

H.C. OF A.
19901991.
'-.--'

1990,
Nov. 7.
1991,

May 28.
Mason CJ ..

Brennan.
Deane,
Dawson.
Toohey,
Gaudron and

McHugh J1.

244

HIGH COURT

H. C.

OF A.
1990-1991.

'-v---'
GALA

v.
PRESTO)';.

[1990-1991.

defendant by election. Judge Dodds dismissed the action on the

ground that the joint illegal enterprise in which Preston and Gala
were engaged prevented him from determining the appropriate duty
of care owed by Gala to Preston. The Full Court of the Supreme
Court (Connolly, McPherson and Williams 11.) allowed an appeal
by Preston (1). Gala, the owners and the insurer then appealed, by
special leave, to the High Court.
P. A. Keane Q.C. and D. V C McMeekin, for the appellants,
referred to Smith v. Jenkins (2); Jackson v. Harrison (3); Progress
and Properties Ltd. v. Craft (4); Bondarenko v. Sommers (5);
Godbolt v. Fittock (6); Cook v. Cook (7); and John v. Federal
Commissioner of Taxation (8).

C E. K. Hampson Q.c. and P. L. Feely, for the respondent,

referred to National Coal Board v. England (9); Ashton v.
Turner (10); Henwood v. Municipal Tramways Trust (SA.) (11); and
Hillen v. ICI (Alkali) Ltd. (12).

Cur. adv. vult.

1991. May 28.

The following written judgments were delivered:MASON C.l., DEANE, GAUDRON AND McHUGH 11. The question
raised in this appeal is: what are the principles which govern 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
Shortly before midnight on 14 August 1984 the respondent (the
plaintiff at the trial), then aged nineteen, suffered injuries when the

(1)
(2)
(3)
(4)
(5)
(6)
(7)

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

(8) (1989)
pp.
(9) (1954)
(10) [1981]
(II) {1938)
(12) [1934]

166 C.L.R. 417, at

438-439.
A.C. 403.
Q.B. 137.
60 C.L.R. 438.
1 K.B. 455.

172 C.L.R.]

OF AUSTRALIA.

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.
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 0.2 per cent.
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".
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.
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.

245
H.C.

OF

A.

1990199J.
'-..--'
GALA

v.
PRESTON.

Mason C.J.
Deane J.
Gaudron J.
McHugh J.

246

HIGH COURT

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

GALA

v.
PRESTON.

Mason C.J.
Deane J.
Gaudron J.
McHughJ.

[1990-1991.

The issues in the action

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 oj the primary judge
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.

172 C.L.R.]

OF AUSTRALIA.

However, the primary judge considered the decisions in Smith v.

Jenkins (13), Progress and Properties Ltd. v. Craft (14), Jackson v.
Harrison (15) and Bondarenko v. Sommers (16) in relation to 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

On appeal, the Full Court of the Supreme Court (Connolly,
McPherson and Williams 11.) 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 (17). Williams J. (with whom Connolly J. agreed)
considered (18) 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."
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.
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".

(13) (1970) 119 C.L.R. 397.

(14) (1976) 135 C.L.R. 651.
(15) (1978) 138 C.L.R. 438.

(16) (1968) 69 S.R. (N.S.W.) 269.

(17) [1990]1 Qd R. 170.
(18) [1990)1 Qd R., at p. 178.

247
H. C.

OF

A.

19901991.
'-r-'
GALA

v.
PRESTON.

Mason C.J.
Deane J.
Gaudron J.
McHugh 1.

HIGH COURT

248
H. C.

OF

A.

1990-1991.
'-,--'
GALA
V.

PRESTON.

Mason C.J.
Deane J.
Gaudron J.
McHugh J.

[1990-1991.

The case for the appellants

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
In Henwood v. Municipal Tramways Trust (SA.) (19), 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 "t~ere 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 11. (20).
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 (21). This qualification
has no relevance for the present case because it is not suggested that
s. 408A manifests such an intention.
(19) (1938) 60 C.L.R. 438.
(20) (1938) 60 C.L.R., at p. 462.

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

172 C.L.R.]

OF AUSTRALIA.

Illegality as a defence in cases ofjoint illegal enterprise

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 (22).
Windeyer J. observed (23):
"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 analyzed and explained matters not."

Earlier, his Honour rejected the public policy approach and stated
that the special relationship between the parties excluded the
existence of a duty of care (24). 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" (25) and went on to say (26) that "[t]he question is whether
the harm arose from the manner in which the criminal act was
done." Barwick C.l. (27) and Owen J. (28) appear to have agreed
with that statement of principle, whereas Walsh J. (29) stated that
the rule was one of public policy.
But it would be wrong to regard the case as authority for the
proposition that in all circumstances the participation of plaintiff
(22)
(23)
(24)
(25)
(26)

(1970)
(1970)
(1970)
(1970)
(1970)

119 CL.R., at p.
119 CL.R., at p.
119 CL.R., at p.
119 CL.R., at p.
119 CL.R., at p.

403.
422.
418.
419.
421.

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

(28) (1970) 119 CL.R., at pp. 425426.
(29) (1970) 119 CL.R., at pp. 433434.

249
H. C.

OF

A.

1990-1991.
'--.-'
GALA

v.
PRESTON.

Mason C.J.
Deane J.
Gaudron J.
McHugh J.

HIGH COURT

250
H. C. OF A.
1990199l.
'-0--'
GALA
V.

PRESTON.

Mason CJ.
Deane J.
Gaudron J.
McHugh J.

[1990-1991.

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.
So much at least was established by the subsequent decision in
Progress and Properties (30). 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 ft per minute.
By majority (Stephen, Mason, Jacobs and Murphy 11., with
Barwick C.J. dissenting), the Court held that the defence of illegality
could not be sustained.
Jacobs J. (with whom the other Justices in the majority agreed)
said (31):
"A duty of care arises out of the relationship of 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
(30) (1976) 135 c.L.R. 651.

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

172 C.L.R.)

OF AUSTRALIA.

251

court will not hear evidence nor will it determine a standard of

care owing by a safe blower to his accomplice in respect of the
explosive device."

H. C. OF A.
1990) 991.
'-y-'

GALA

His Honour went on to say (32) 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 (33):
"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 (34).
Again, in Jackson v. Harrison (35), 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 (36):
"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."
His Honour went on to observe (37) that in accordance with
Henwood it is necessary to consider whether, to use the words of
Dixon and McTiernan JJ. in that case (38),
"it is part of the purpose of the law against which the plaintiff
has offended to disentitle a person doing the prohibited act

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

(33) (1976) 135 C.L.R., at pp. 668
669.
(34) (1976) 135 C.L.R., at p. 669.

(35)
(36)
(37)
(38)

(1978)
(1978)
(1978)
(1938)

138 C.L.R. 438.

138 C.L.R., at p. 457.
138 C.L.R., at p. 459.
60 C.L.R., at p. 460.

v.
PRE5TO~.

Mason C.J.
Deane J.
Gaudron J.

McHugh J.

HIGH COURT

252
H. C. OF A.
19901991.

[1990-1991.

from complaining of the other party's neglect or default,

without which his own act would not have resulted in injury".

'-,.--'
GALA

v.
PRESTO~.

Mason C.J.
Deane J.
Gaudron J.
McHugh J.

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 (39). 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.
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.
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 (40), 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 (41); Stevens v. Brodribb Sawmilling Co. Pty. Ltd. (42);

(39) (1978) 138 C.L.R., at p. 460.

(40) (1984) 155 C.L.R. 549.
(41) (1985) 157 C.L.R. 424, at
pp. 461-462,506-507.

(42) (1986) 160 C.L.R. 16, at

pp. 30, 50-52.

172 C.L.R.]

OF AUSTRALIA.

San Sebastian Pty. Ltd. v. The Minister (43); Cook v. Cook (44).
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.
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 n., 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 (45) 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
(43) (1986) 162 C.L.R. 340, at
pp. 354-355.
(44) (1986) 162 C.L.R. 376, at
pp. 381382.

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

253
H. C.OF A.
1990-1991.
'---y---'

GALA
V.

PRESTO:".

Mason c.J.
Deane J.
Gaudron J.
McHugh J.

HIGH COURT

254
H. C. OF A.

1990-1991.
'-y--'

GALA
V.

PRESTON.

Mason C.l.
Deane J.
Gaudron l.

McHugh l.

[1990-1991.

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

172 C.L.R.]

OF AUSTRALIA.

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.
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.).
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 (47) which,
according to the explanation of that case proffered by Jacobs J. in
Jackson v. Harrison (48), 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

(47) (1970) 119 C.L.R. 397.

(48) (1978) 138 C.L.R. 438, at

p.460.

255
H.C-OF A

1990-1991.
'-,---'
GALA

".

PRESTON.

Mason C.J.

Deane J.
Gaudron J.
McHugh J.

256

HIGH COURT

H. C. OF A.

1990-1991.
'--,....-'
GALA

v.
PRESTON.

Brennan 1.

[1990-1991.

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

said (50):
"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 (51):
"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 per cent 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.
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.) (52); Smith v. Jenkins; Progress
and Properties Ltd. v. Craft (53); 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
(49) [1990] I Qd R. 170.
(50) (1990)1 Qd R., at p. 179.
(51) (1990) I Qd R., at p. 172.

(52) (1938) 60 C.L.R. 438.

(53) (1976) 135 C.L.R. 651.

172 C.L.R.]

OF AUSTRALIA.

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.
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 & Engineering Co.
Ltd. (The "Wagon Mound" [No.1)) (54). 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) (54); Sutherland Shire Council v.
Heyman (55).
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 (56).
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

(54) [1961] A.C. 388, at p. 425.

(55) (1985) 157 C.L.R. 424, at
pp. 486-487.

(56) (1961) 106 C.L.R. 112, at

p. 122.

257
H.C. OF A.
1990-1991.
'---r--'
GALA

v.
PRESTON.

Brennan J.

HIGH COURT

258
H. C. OF A.
1990-1991.
L-,.--'
GALA

v.
PRESTON.

Brennan J.

[1990-1991.

Rivers Catchment Board v. Kent (57); Jaensch v. Coffey (58);

Sutherland Shire Council v. Heyman (59).
3. A defendant's liability for damage does not extend to 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 (60); Hughes v. Lord
Advocate (61); Mount Isa Mines Ltd. v. Pusey (62); Jaensch v.
Coffey (63).
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. Birmingham
Waterworks Co. (64); Heaven v. Pender (65); Donoghue v.
Stevenson (66); Fardon v. Harcourt-Rivington (67); Bolton v.
Stone (68). That is the foundation not only of every duty of care in
torts of negligence but of the standard of care required to discharge
the duty: Vaughan v. Menlove (69). 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 (70); Wyong
Shire Council v. Shirt (71); Jaensch v. Coffey (63).
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 & Co. Ltd. v. Heller & Partners Ltd. (72);
(57) [1941] A.C. 74.
(58) (1984) 155 C.L.R. 549, at
p.578.
(59) (1985) 157 C.L.R., at pp. 476481.
(60) [1951] A.C. 850, at p. 858.
(61) [1963] A.C. 837.
(62) (1970) 125 C.L.R. 383, at
pp. 390,392393,401-403,
413414.
(63) (1984) 155 C.L.R., at pp. 562
563.
(64) (1856) 11 Ex. 781 [156
E.R. 1047J.

(65) (1883) 11 Q.E.D. 503, at

p.509.
(66) [l932J A.C. 562, at pp. 580581.
(67) (1932) 146L.T. 391,at
pp. 392, 393.
(68) [1951J A.C., at pp. 866869.
(69) (1837) 3 Bing. (N.C.) 468, at
p. 475 [132 E.R. 490, at
p.493].
(70) [1943] A.C. 448, at p. 457.
(71) (1980) 146 C.L.R. 40, at p. 45.
(72) [1964] A.C. 465.

172 C.L.R.]

OF AUSTRALIA.

Shaddock & Associates Pty. Ltd. v. Parramatta City Council

[No. 1) (73); Mutual Life & Citizens' Assurance Co. Ltd. v.
Evatt (74); Jaensch v. Coffey (75); San Sebastian Pty. Ltd. v. The
Minister (76). 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 (77); Insurance Commissioner v. Joyce (78);
Cook v. Cook (79).
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 (80), 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".
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
(73) (1981) 150 C.L.R. 225, at
pp. 230-231.
(74) (1968) 122 C.L.R. 556, at
pp. 568-570.
(75) (1984) 155 C.L.R., at pp. 574576.
(76) (1986) 162 C.L.R. 340, at
p.369.

(77) (1967) 116 C.L.R. 383, at

p.389.
(78) (1948) 77 C.L.R. 39, at p. 59.
(79) (1986) 162 C.L.R. 376, at
pp. 391-394.
(80) [1932] A.c., at pp. 580-581.

259
H. C. OF A.
19901991.
'--,---'
GALA

v.
PRESTON.

Brennan J.

260

HIGH COURT

H. C. OF A.

19901991.
'-,-'
GALA
V.

PRESTOI'.

Brennan J.

[1990-1991.

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 cire '1stances which
constitute the relationship of the plaintiff and the ..efendant: Grant
v. Australian Knitting Mills Ltd. (81). "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".
The amorphous character of the extended notion of proximity
was perceived by Lord Bridge of Harwich in Caparo Industries Pic.
v. Dickman (82):
"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
characterized 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 recognizes pragmatically as
giving rise to a duty of care of a given scope. Whilst
recognizing, 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 categorization of
distinct and recognizable situations as guides to the existence,
the scope and the limits of the varied duties of care which the
law imposes."
(81) (1935) 54 C.L.R. 49, at p. 64;
[1936] A.c. 85, at p. 103.

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

172 C.L.R.]

OF AUSTRALIA.

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.
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 (83);
Hawkins v. Clayton (84)). This case presents starkly the problem of
the inadequacy of content of the notion.
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.
Uncertainty of content was recognized as a defect in Lord
Wilberforce's "second stage" of the test of liability which he
(83) (1986) 162 C.L.R., at pp. 367369.

(84) (1988) 164 C.L.R. 539, at

pp. 555-556.

261
H. C. OF A.
1990-1991.
'-,--'
GALA
V.

PRESTO~.

Brennan J.

262

HIGH COURT

H. C. OF A.
1990-J991.
'-v---'
GALA

v.
PRESTOI'.

Brennan 1.

[1990-1991.

expressed in a notable passage in his speech in Anns v. Merton

London Borough Council (85). 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 [plaintiffl" a stage which, at least on one view, focuses 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 (86). 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.
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 couns more especially when legislative law reform languishes. But the
technique of development will be inadequate if, at the end of the
(85) [1978] A.C. 728, at pp. 751752.

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

172 C.L.R.]

OF AUSTRALIA.

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.
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.
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 (87);
Progress and Properties Ltd. v. Craft (88); Jackson v. Harrison (89).
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.
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
(87) (1970) 119 C.L.R., at pp. 400,
403,419,425.
(88) (1976) 135 C.L.R., at pp. 656,
668.

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

457.

263
H. C. OF A.
1990-199l.
'---.--'
GALA

v.
PRESTOI'.

Brennan J

264

HIGH COURT

H. C.

OF

A.

19901991.
'--r-'
GALA

[1990-1991.

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.

V.

PRESTON.

Brennan J.

Illegal acts
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.l., Windeyer and Owen 11., 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.l. in Jackson v. Harrison (90),
appears to be supported by the judgments in Smith v. Jenkins
delivered by Barwick C.l. (9\), Windeyer l. (92), Owen l. (93) and,
perhaps, by Kitto l. (94). Although Mason l. in Jackson v.
Harrison (95) asserted that Smith v. Jenkins did not decide "that the
participants in a joint illegal enterprise owe no duty of care to each
other", that was not precisely the proposition which Barwick C.l.
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" (90) or, to use the language of
Windeyer l., "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.
Barwick C.l., in dissent, adhered to this principle in Progress and
Properties Ltd. v. Craft (96) 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" (97)). 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 (98) though he had
recognized in Progress and Properties Ltd. v. Craft (99) that the
application of the principle to offences created for the protection of
workmen "presents features of harshness which are not readily
(90) (1978) 138 C.L.R., at p. 442.
(91) (1970) 119 C.L.R., at p. 400.
(92) (1978) 138 C.L.R., at pp. 421422.
(93) (1978) 138 C.,L.R., at p. 425.
(94) (1978) 138 C.L.R., at p. 403.

(95)
(96)
(97)
(98)

(1978) 138 C.L.R., at

(1976) 135 C.L.R., p.
(1978) 138 C.L.R., at
(1978) 138 C.L.R., at
448,450.
(99) (1976) 135 C.L.R., at

p. 453.

656.
p. 446.
pp. 444
p. 658.

172 C.L.R.]

OF AUSTRALIA.

acceptable in the present-day world". Significantly, in Jackson v.

Harrison (1) 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 (2). And Walsh J. held the view (3) 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."
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 (4) that it is "too Draconian
to command acceptance".

Statutory intent
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 11. (5) 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 (6) Mason J. 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 (SA.)", the two
cases were, as Barwick c.J. was surely right to point out (7), "in a
(I) (1978) 138 C.L.R., at pp. 451

452.
(2) (1970) 119 C.L.R., at pp. 423424.
(3) (1970) 119 C.L.R., at p. 427.
(4) (1978) 138 C.L.R., at pp. 453,
455.

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

(6) (1978) 138 C.L.R., at p. 452.
(7) (1978) 138 C.L.R., at pp. 446447.

265
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Brennan J.

[1990-1991.

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 tum 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.
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

In Bondarenko v. Sommers (8), Jacobs J.A., then sitting in the
Court of Appeal of New South Wales, pointed out 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 (9):

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

p.276.

(9) (1968) 69 S.R. (N.S.W.), at

p.275.

172 c.L.R.]

267

OF AUSTRALIA.

"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."
In Progress and Properties Ltd. v. Craft (10), his Honour, sitting
in this Court and speaking for the majority, said:
"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 (II):
"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
(10) (1976) 135 C.L.R., at p. 668.

(11) (1978) 138 C.L.R., at pp. 457458.

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[1990-1991.

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" (12).
In Jackson v. Harrison (13) 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 (14):
"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."
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
(12) (1978) 138 C.L.R., at p. 459.
(13) (1978) 138 C.L.R., at p. 456.

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

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269

OF AUSTRALIA.

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

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[1990-1991.

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 (16). 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.
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 (17) 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" (18). That view is at one extreme;
the unqualified principle of Smith v. Jenkins is at the other.
Then why should a plaintiff's participation in a defendant'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
(16) (1978) 138 C.L.R., at p. 459.
(17) (1978) 138 C.L.R., at p. 464_

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

172 C.L.R.]

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OF AUSTRALIA.

case, the other to the nature of the offence created by the law
breached by plaintiff and defendant.
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.
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 cooffenders in the commission of the offence.
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 uncivilized. 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

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[1990-1991.

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.
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 classes of offences,
there are many offences which are difficult to place confidently on
one side of the line or the other.
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 (19). 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
(19) (1978) 138 C.L.R., at p. 451.

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273

OF AUSTRALIA.

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.
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.
Is the principle applicable to offenders engaged in the unlawful
use of a motor vehicle contrary to s. 408A of 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.
It follows that, in my view, the appeal should be allowed, the

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judgment of the Full Court of the Supreme Court should be set

aside and the judgment of the District Court restored.

GALA

v_
PRESTON.

DA WSON 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.
But it is contended that Smith v. Jenkins (20) 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 reexamine 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.
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.) (21), 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.
In Progress and Properties Ltd. v. Craft (22) 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
(20) (1970) 119 C.L.R. 397.
(21) (1938) 60 C.LR. 438.

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

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OF AUSTRALIA.

operator of the hoist was in breach of a Tegulation 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.
In Jackson v. Harrison (23) 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.
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.
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
(23) (1978) 138 C.L.R. 438.

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[1990-1991.

exhibiting an unwillingness rather than an incapacity to do so. As

Murphy]. pointed out in Jackson v. Harrison (24):
"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.
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 (25), 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
(24) (1978) 138 C.L.R., at pp. 463464.

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

172 C.L.R.]

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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.
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. (26), 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", Cambridge Law Journal, vol. 50 (1991) 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.
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.
I prefer to express myself in that general way and to avoid
confining the policy by linking it with the preservation of the
(26) (1986) 160 C.L.R. 16, at p. 52.

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[1990-1991.

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 (27):
"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."
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 (28) when he said:
"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.
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
(27) (1978) 138 C.L.R., at p. 453.

(28) (1970) 119 C.L.R., at p. 422.

172 CL.R.]

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OF AUSTRALIA.

given by Latham CJ. in Insurance Commissioner v. Joyce (29), the

majority in Cook v. Cook (30) said:
"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 (31)."
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.
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
(29) (1948) 77 C.L.R. 39.
(30) (1986) 162 C.L.R. 376, at
p.382.

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

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[1990-1991.

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

172 C.L.R.]

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OF AUSTRALIA.

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.
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.
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 per cent 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.
An appeal by the respondent to the Full Court of the Supreme
Court was allowed (Connolly, McPherson and Williams JJ.) (32).
Williams J. wrote the principal judgment; Connolly J. concurred
(32) [1990] 1 Qd R. 170.

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[1990-1991.

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.
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 (33). Although that
decision was distinguished in Progress and Properties Ltd. v.
Craft (34) and Jackson v. Harrison (35), 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.
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 (Vict.). All members of
the Court (Barwick c.J., Kitto, Windeyer, Owen and Walsh 11.)
held that the respondent could not recover damages from the
appellant. But the basis upon which recovery was refused differed.
Barwick c.J. (36), posed the options in this way:
"The choice it seems to me is between a refusal of the law 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."
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."
It will be necessary to look more closely at the absence of a duty
(33) (1970) 119 C.L.R. 397.
(34) (1976) 135 C.L.R. 651.

(35) (1978) 138 C.L.R. 438.

(36) (1970) 119 C.L.R., at p. 400.

172 C.L.R.]

OF AUSTRALIA.

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.
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.e.I. (Alkali) Ltd. (37)] ... ,
namely that 'the whole transaction is known by each party to be
illegal and there is no contribution or indemnity between joint
wrongdoers'" (38). "The underlying reason", said his Honour (38),
"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".
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" (39). In the end
Windeyer J. expressed the relevant test in these terms (40):
"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 analyzed and explained matters not."
Owen J. too put the matter in terms of an absence of a duty of
care, by saying (41): "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."
Walsh J. was at pains to eschew any general rule to which all
actions involving an unlawful act might be subject. But, his Honour
formulated the relevant question in these terms (42):
"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."
(37) [1934]1 K.B. 455, at p. 467.
(38) (1970) 119 C.L.R., at p. 403.
(39) (1970) 119 C.L.R., at p. 418.

(40) (1970) 119 C.L.R., at p. 422.

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

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Walsh J. considered that, upon the facts of the case, the act 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 (43). He concluded (43): "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."
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?
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.
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.
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
(43) (1970) 119 C.L.R., at p. 433.

172 C.L.R.)

OF AUSTRALIA.

Kitto J. as his Honour's approach was not shared by other members

of the Court. (Cf. Barwick c.J. in Jackson v. Harrison (44).) 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.
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?
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.
Progress and Properties Ltd. v. Craft (45) 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
(44) (1978) 138 C.L.R., at p. 443.

(45) (1976) 135 C.L.R. 651.

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[1990-1991.

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 11. 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" (46). 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."
Jacobs J. referred to Smith v. Jenkins but only for the purpose of
distinguishing it in these terms (46):
"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."
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" (47). Barwick c.J. dissented because he thought
Smith v. Jenkins indistinguishable.
The judgments of the majority in Progress and Properties Ltd. v.
Craft do not represent a watering down of the decision in Smith v.
Jenkins. Views may differ as to the closeness of the 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 (48), is one that I cannot share.
Smith v. Jenkins was once more distinguished in Jackson v.
Harrison (49). This case concerned an action for negligence by 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 11.) held that the plaintiff was not precluded from recovering
(46) (1976) 135 C.L.R., at p. 668.
(47) (1976) 135 C.L.R., at p. 669.

(48) (1976) 135 C.L.R., at p. 659.

(49) (1978) 138 C.L.R. 438.

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damages. Barwick c.J. again dissented on the basis that Smith v.

Jenkins was directly applicable.
In his dissenting judgment Barwick C.J. referred to the individual
judgments in Smith v. Jenkins and concluded (50):
"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."
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.
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 (51):
"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 (52). With that observation I respectfully agree
(50) (1978) 138 C.L.R., at pp. 443444.

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

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

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and no such rule is demanded by Smith v. Jenkins. His Honour's

conclusions were derived from this proposition (53):
"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 (54), Balcombe L.J. found himself "in complete
agreement" with that passage.
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 (55). 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 L.J. in Hillen v. ICI (Alkali) Ltd. (56), 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
(53) (1978) 138 C.L.R., at pp. 455
456.
(54) [1991J 1 Q.B. 24, at p. 49.

(55) (1968) 69 S.R. (N.S.W.) 269.

(56) [1934]1 K.B. 455, at p. 467.

172 C.1.R.]

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 fonnulation suggested by Mason J. may
meet some situations but not others: see also Murphy J. in Jackson
v. Harrison (57).
In Jackson v. Harrison Jacobs J. adhered to the approach he had
taken in Progress and Properties Ltd. v. Craft, saying (58):
"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 (59):
"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.
There is much force in the comment of Dillon 1.J. in Pitts v.
Hunt (60):
"Both Jackson v. Harrison . .. and Progress and Properties Ltd.
v. Craft ... can be regarded as cases within Bingham 1.J.'s
category, in Saunders v. Edwards (61), of cases where the
plaintiff had suffered a genuine wrong to which his allegedly
unlawful conduct was merely incidental."
Against that background of decisions of this Court it is useful to
tum in the instant case to the judgment of. Williams J. in the Full
Court (62). His Honour examined the three decisions to which I
have referred and also the decision of this Court in Cook v.
Cook (63). In my opinion, Cook v. Cook has nothing to say as to
the resolution of this appeal. But that was not the view of

(57)
(58)
(59)
(60)

(1978)
(1978)
(1978)
[1991)

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OF AUSTRALIA.

138 C.L.R., at p. 463.

138 C.L.R., at p. 457.
138 C.L.R., at p. 466.
1 Q.B., at p. 58.

(61) [1987) 1 W.L.R. 1116; [1987)

2 All E.R. 651.
(62) [1990)1 Qd R. 170.
(63) (1986) 162 C.L.R. 376.

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Williams J.; his Honour saw in that decision a reconciliation

between the various decisions of this Court. His Honour said (64):
"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" (65).
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 11. 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" (66). 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 (67)) 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.
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:
(64) [199011 Qd R., at p. 178.
(65) [1990) 1 Qd R., at p. 179.

(66) (1986) 162 C.L.R., at p. 393.

(67) (1986) 41 S.A.S.R. I.

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see for instance Fleming, Law of Torts, 7th ed. (1987), p. 278; Ford,
"Tort and Illegality: The Ex Turpi Causa Defence in Negligence
Law", Melbourne University Law Review, vol. 11 (1977) 32, 164;
Weinrib, "Illegality as a Tort Defence", University of Toronto Law
Journal, vol. 26 (1976) 28; Fridman, "The Wrongdoing Plaintiff",
McGill Law Journal, vol. 18 (1972) 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, he
said (68):
"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.
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 playa 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.
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
(68) (1970) 119 C.L.R., at p. 414.

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particular cases questions will arise as to the seriousness of the

conduct involved and the sufficiency of the connexion 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", Sydney Law Review, vol. 9
(1981) 304, at p. 329.
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.
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.
Solicitors for the appellants, VA. J. Byrne & Co.
Solicitors for the respondents, Carswell & Co.
R.A.s.