A passenger involved in stealing a car was found to be owed a
duty of care after the driver lost control of the vehicle and
crashed into a pole.
The 16 year old plaintiff had been out drinking with her sister
and cousins. After discovering the last train had gone and she had
run out of money, she decided to steal a car to drive home. The
defendant, one of her cousins, offered to drive the plaintiff and
her friends home in the stolen car. The defendant began driving
recklessly, speeding and running red lights, and the plaintiff
asked on two occasions to be let out of the vehicle. The defendant
refused these requests and shortly afterwards lost control of the
vehicle and crashed into a pole, killing one passenger and
rendering the plaintiff a tetraplegic. The plaintiff made a claim
for damages arising from the negligence of the driver.
Duty of care
The existence of a duty of care was considered in light of
section 371A of The Criminal Code (WA). This section
provided that a person using a motor vehicle without the consent of
the owner was said to have stolen that vehicle. The defendant
argued that under common law principles, two people engaged in a
joint illegal enterprise did not owe each other a duty of care. The
courts had to decide whether the plaintiff's involvement in an
illegal activity meant that no duty of care existed between the
plaintiff and the defendant and that the plaintiff was therefore
precluded from a damages award.
At first instance, the District Court of Western Australia held
the defendant owed the plaintiff a duty of care. The
plaintiff's damages were reduced by 50% for contributory
negligence. The defendant appealed to the Court of Appeal of the
Supreme Court, which overturned the decision of the primary judge
and held that no duty of care was owed. The plaintiff then appealed
to the High Court of Australia.
The ultimate question to be determined by the High Court was
whether it would be inconsistent for the law to prohibit the
claimant from stealing a vehicle, yet allow her to recover damages
from injuries arising out of the course of stealing the car.
High Court's ruling
The High Court held that whilst the plaintiff was initially
involved in the criminal activity of stealing the car, she was not
a party to the criminally dangerous driving that occurred after the
car had been stolen. She asked to be let out on two occasions when
she realised that the driver was engaging in reckless "joy
riding" behaviour. The illegality of her intentions in
stealing the car only extended to the short drive home, not to the
defendant's dangerous driving.
In their reasoning, the High Court judges highlighted that
although there were circumstances where joint criminal behaviour
would negate the existence of a duty of care, preclusion from
recovering civil damages should not be automatically assumed as it
would depend on the circumstances of each case. The discriminating
issue in this case was that the plaintiff had made reasonable
attempts to withdraw from the unlawful activity before the
commission of the subsequent specific offence rather than the
The High Court dismissed the appeal and reinstated the orders of
the primary judge.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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