Dear Colleagues;
The High Court of Australia has handed down its decision on the appeal
in Miller v Miller [2011] HCA 9 (7 April 2011)
http://www.austlii.edu.au/au/cases/cth/HCA/2011/9.html . The case
involves the question whether one participant in joint illegal activity
owes a duty of care in the law of negligence to another participant. In
brief, the majority conclude that there is a general rule that will, in
an appropriate case, preclude such a duty of care; but in this
particular case, by the time the harm occurred one of the participants
had withdrawn from the joint illegal activity, and hence was owed a duty
of care by the other. (The dissenter, Heydon J, agreed with the general
point, but would have concluded that it was not open to the High Court
to decide the "withdrawal" question because it had not clearly been
raised on the pleadings.)

The plaintiff, 16 years old at the time, stole a car; when she was about
to drive off in it, her “uncle” (who was intoxicated) came up and
demanded to be allowed to drive it; the car drove off, heavily
overloaded, and later crashed. The Full Court of the WA Supreme Court
ruled that in the circumstances of this joint illegal activity, there
could be no recovery. There was clear previous authority along these
lines. One strand of reasoning was that found in Gala v Preston , where
the majority of the HC held that there was no duty of care as it was
“impossible to formulate a standard of care” between the parties. But
as McLure JA pointed out, the majority in Gala relied heavily on the
“proximity” analysis of duty of care, and part of their decision was
supported by reliance on Cook v Cook (which has now been overturned by
Imbree v McNeilly). Hence it was unclear whether the High Court today
would frame the result in terms of “no duty” between the particular
parties.

The majority decision in the HC examines the previous cases, and
concludes (as one would expect) that the mere fact that "proximity" was
used as part of the reasoning in Gala did not mean that the decision was
wrong. The majority, however, moved right away from the "impossible to
define a standard of care" argument. As they say at [54]:

"The courts must deal with many difficult questions and with many forms
of very discreditable human behaviour. Setting a norm of behaviour as
between criminals may be difficult, but it is not impossible."

But they do uphold the general principle that, where there is a joint
breach of a statute, the law may rule out a duty of care between
participants. What they say is that there will be such a ruling where to
provide otherwise would create "incoherence" in the law. See [74]:

"If a statute has been contravened, careful attention must be paid to
the purposes of that statute. It will be by reference to the relevant
statute, and identification of its purposes, that any incongruity,
contrariety or lack of coherence denying the existence of a duty of care
will be found. That is the path that was taken in Henwood. It is the
same as the path that has been taken in relation to illegality in
contract and trusts. The same path should be taken in cases where the
plaintiff sues the defendant for damages for the negligent infliction of
injury suffered in the course of, or as a result of, the pursuit of a
joint illegal enterprise."

Here their analysis of the relevant statute revealed that it created a
serious offence equivalent to theft. I must say that at first (and even
second) reading the reasoning here seems rather dense. But the
conclusion seems to be reached in [101] where we are told that in this
case, if both had continued to be joint participants, there would have
been no duty:

"The offence of illegally taking and using a vehicle is dealt with as it
is because of its association with reckless and dangerous driving. The
statutory purpose of a law proscribing dangerous or reckless driving is
not consistent with one offender owing a co-offender a duty to take
reasonable care. And in a case where two or offence of illegally using a vehicle, the statutory purpose of the law
proscribing illegal use (here, s 371A) is not consistent with one
offender owing a co-offender a duty to take reasonable care. The
inconsistency or incongruity arises regardless of whether reckless or
dangerous driving eventuates. It arises from the recognition that the
purpose of the statute is to deter and punish using a vehicle in
circumstances that often lead to reckless and dangerous driving."

However, because of the close focus on the particular statute, it was
relevant that under s 8(2) of the WA Criminal Code a joint participant
in a crime could avoid liability by withdrawing. Here the majority held
that the evidence led and accepted was that the injured girl had done
all that she reasonably could to leave the car once it became apparent
how her uncle was driving. Hence by the time of the crash she was no
longer a joint participant, and he at the point owed her a duty of care
as a passenger- [106].

It is of interest to note that the court uses a statute here, not to
create liability, but to remove it. They comment at [29], however, that
the same principles of statutory interpretation may come into play as
are used in determining the issue whether a statute creates civil
liability.

The court also refers in passing to UK and Canadian decisions, but in
effect decides to go its own way. I found the passing reference to Gray
at [56] very odd, with it effectively being characterised as a decision
simply based on broad "public policy" as opposed to "questions of
coherence". I am not sure I agree.

Regards
Neil



Neil Foster
Acting Head of School & LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

http://www.newcastle.edu.au/staff/profile/neil.foster.html

http://works.bepress.com/neil_foster/