Long-Droppert, Verity --- "The Defence of Joint Illegal Enterprise: Stolen Cars, Joyriding and Drugs" [2021] PrecedentAULA 5; (2021) 162 Precedent 16

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THE DEFENCE OF JOINT ILLEGAL ENTERPRISE

STOLEN CARS, JOYRIDING AND DRUGS

By Verity Long-Droppert

Can an individual recover damages for negligence in a motor vehicle accident if they were a passenger in a stolen car? Does the theft of the car, or the subsequent use of the car, defeat an individual’s claim for damages for negligence?

These questions go to the heart of the defence of joint illegal enterprise, which denies the existence of a duty of care in circumstances where a plaintiff’s conduct was incidental to a criminal enterprise. The defence is only available in negligence proceedings and is enlivened when the following two-stage test is satisfied:

1. The plaintiff suffered damage while engaged in a criminal enterprise with the defendant; and

2. The nature of the enterprise is such that it would be ‘impossible’ or ‘not feasible’ to ask how a reasonable person in the defendant’s position would have acted.^[1]

As observed in the plurality judgment in the High Court case of Miller v Miller^[2] (Miller), in many Australian jurisdictions, the above questions would require a consideration of the relevant statutory provisions that are intended to regulate the recovery of damages for personal injuries that are suffered when a plaintiff acts illegally. In jurisdictions where there are no relevant statutory provisions of this kind, those questions turn on the application of common law principles.

HISTORICAL AVAILABILITY OF THE DEFENCE

Smith v Jenkins^[3]

This was the first case in which the High Court recognised the defence of joint illegal enterprise to liability in negligence as it is currently understood.

At the time of the accident, the plaintiff was a passenger in a car that he and the defendant driver had stolen. The defendant was driving carelessly and the plaintiff suffered injuries as a result of the defendant’s negligence.

The High Court was unanimous in finding that the plaintiff did not have a cause of action against the defendant, but was divided in its reasons for arriving at that conclusion. In an analysis of the decision in the 1977 edition of the Melbourne Law Review, W J Ford identified^[4] the following passage from the decision of Justice Windeyer as best representing the ratio of the majority:

‘To ask whether a statue which creates an offence exhibits an intention to deprive one offender of a right of action against the other is I consider to invert the proper inquiry. Rather, the inquiry should be whether the statute is to be read as abrogating the basic rule... that there is no right of action by one criminal against another for negligence. However, the result is the same if one takes the view – which I do not – that in juristic analysis the effect of illegality is, from considerations of public policy, privative, a taking away of a right. Whichever way it be approached, the question is not whether a statute creating an offence also denies a remedy. Rather it is whether it preserves a remedy which would otherwise be gone, or – as I think it is correct to say – recognises an exception to the rule that a criminal cannot have the aid of the law in his complaint against his fellow. Either way, the answer must be found in the terms and the subject matter and the purpose of the statute.’^[5]

This passage is authority for the proposition that there is no cause of action at common law if the parties were engaged in a joint criminal enterprise, unless the relevant statute revives or creates an otherwise unavailable cause of action.

Gala v Preston^[6]

In this case, the plaintiff, the defendant and two other men stole a motor vehicle after consuming a large quantity of alcohol. They set off in the vehicle intending to commit burglary offences, but on the journey the defendant fell asleep at the wheel and the vehicle veered off the road and hit a tree. The plaintiff suffered serious injuries as a result of the accident.

The High Court unanimously held that the defendant did not owe a duty of care to the plaintiff by virtue of the joint illegal enterprise in which they were engaged. However, as Professor James Goudkamp observed in his 2010 article on the joint enterprise defence, the Court arrived at this conclusion in three different ways. The plurality, comprising of Mason CJ, Deane, Gaudron and McHugh JJ, applied the two-stage test above.^[7] Justice Brennan held that finding a duty would ‘impair the normative influence of the criminal law’.^[8] Justices Dawson and Toohey held that finding a duty would be contrary to public policy.^[9]

WHEN A DUTY OF CARE EXISTS

Miller v Miller^[10]

The High Court case of Miller again dealt with the question of whether a party to a joint criminal enterprise can sue another party to the crime. This decision overturned the previous approach of the High Court in Smith v Jenkins and Gala v Preston, which were authorities for the proposition that one illegal user of a vehicle does not owe a duty of care to a complicit passenger.

In this case, the plaintiff stole a car following a night of drinking. Before commencing her journey, the plaintiff moved to the passenger seat to allow the defendant to drive. For a time, the defendant drove sensibly but after a while he began to speed and drive through red lights. The plaintiff asked him to slow down and when he failed to do so, she asked him to stop and let her out. The defendant continued to drive and did not let the plaintiff out of the car.

Relevantly, the Civil Liability Act 2002 (WA) does not contain a statutory provision in relation to the ability of a plaintiff to recover damages during the commission of an illegal activity, so the case was decided entirely on common law principles.

In the District Court of WA, Schoombee DCJ found that the defendant owed the plaintiff a duty of care.^[11] On appeal, the Court of Appeal of the Supreme Court of WA held that the defendant did not owe the plaintiff a duty of care – a finding that rested entirely upon the assertion that the defendant and the plaintiff had engaged in a joint criminal enterprise of illegally using a motor car without the consent of the owner.^[12]

The High Court disagreed with the Court of Appeal, holding that, by the time the accident occurred, the plaintiff and the defendant were no longer engaged in a joint criminal enterprise because the plaintiff had withdrawn from that joint enterprise (pursuant to the test outlined in s8(2) of the WA Criminal Code) when she asked to get out of the car. Accordingly, the plurality (comprising of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) found that the defendant did owe the plaintiff a duty of care.^[13]

In its decision, the plurality attempted to clear up some of the confusion behind the application of the joint illegal enterprise defence which had arisen since the decision of Smith v Jenkins:

‘... the issue that is presented by observing that a plaintiff was acting illegally when injured as a result of the defendant’s negligence is whether there is some relevant intersection between the law that made the plaintiff’s conduct unlawful and the legal principles that determine whether the plaintiff should have a cause of action for negligence against the defendant. Ultimately, the question is: would it be incongruous for the law to proscribe the plaintiff’s conduct and yet allow recovery in negligence for damage suffered in the course, or as a result, of that unlawful conduct? Other questions, such as whether denial of liability will deter wrongdoers or advantage some at the expense of others, are neither helpful nor relevant. And likewise, resort to notions of moral outrage or judicial indignation serves only to mask the proper identification of what is said to produce the response and why the response could be warranted’ [emphasis added].^[14]

Another key preliminary observation made by the plurality was the fact that a plaintiff was acting contrary to law when he or she suffered damage, of which the defendant’s negligence is alleged to be a cause, does not automatically preclude the plaintiff from recovering damages from the defendant. There must be a connection between the unlawful conduct and the harm suffered.^[15]

Justice Heydon, in dissent, argued that the plaintiff’s expression of withdrawal was insufficient to enliven s8(2) of the Criminal Code. Justice Heydon found that the plaintiff had not taken all reasonable steps to prevent the commission of the offence and consequently, the joint enterprise still existed at the time of the crash.^[16]

ILLEGALITY AND THE USE OF THE VEHICLE

Bevan v Coolahan^[17]

In this case,^[18] the plaintiff was injured in a motor vehicle accident while she was a passenger in a vehicle which veered off the road and collided with a telegraph pole. She and the three other occupants of the car had all consumed cannabis and methamphetamine prior to driving to a dealer’s place to replenish their stock of drugs. After consuming their purchased drugs, the group was travelling home when the driver lost control of the vehicle, causing the accident.

The issue in this case was whether the defence of joint illegal enterprise extended to circumstances where the illegality in question is removed from the use of the vehicle, unlike the common scenario where the vehicle is stolen.

The majority judgment of the NSW Court of Appeal (Basten and Leeming JJA) accepted the finding by the trial judge that a joint illegal enterprise existed, emphasising the role of the use of the vehicle in travelling to the place of purchase:

‘The use of the car to travel to the place of purchase, and back home carrying some of the purchased drugs, having consumed the rest, was an essential element in the enterprise. The possibility that the driver would, after consuming dugs, drive negligently or dangerously, and thereby commit further offences, must have been foreseen in circumstances where the very act of driving under the influence of drugs was illegal. Accordingly, it fell within the scope of a joint criminal enterprise as identified in Miller v The Queen; just as there was incongruity in the law applying a duty of care with respect to the participants in the theft and illegal use of a motor vehicle, similarly there is an incongruity in conceding an enforceable duty of care between participants in a joint enterprise involving the taking of illicit drugs and the use of a motor vehicle. The principle of joint liability meant that the plaintiff was equally responsible with the driver for his conduct in the driving of the vehicle.’^[19]

In dissent, McCallum JA argued that a duty of care existed and that the appeal should be allowed:

‘[T]he plaintiff’s illegality was not such as to deny the existence of a duty of care. Even on the expanded case, the unlawful conduct specified (possessing and consuming ice, possessing an ice pipe and perhaps stealing her brother’s iPod) did not intersect with the manner of the first defendant’s driving. There was nothing unlawful in the plaintiff’s conduct in being a passenger in the car. The fact that she remained a passenger knowing that the driver had consumed drugs sounds in contributory negligence or assumption of risk but, not being unlawful, is not incongruous with the existence of a duty of care owed to her as a passenger. Assuming the parties were engaged in a joint criminal enterprise to possess prohibited drugs and administer those drugs to themselves, the use of the car was an incident of that enterprise but was not in itself unlawful.’^[20]

This accident took place in NSW, a jurisdiction which (unlike WA) has a relevant statutory provision regarding the ability to recover damages where the conduct of the plaintiff constitutes a serious offence. Importantly, this provision does not concern the liability of the defendant, but rather is directed against an award of damages.

Section 54 of the Civil Liability Act 2002 (NSW) precludes the recovery of damages where the conduct of the plaintiff constitutes a serious offence but does not intervene where a defendant is also committing an offence, whether serious or not. The NSW Court of Appeal considered whether the common law could continue to be applied in circumstances to which this section does not apply:

‘Section 54, not being directed to the existence of a duty of care, and in fact assuming the existence of such a duty, is not engaged at the very point at which the general law principles apply, namely denial of the existence of a duty. So understood, the exclusion of many (if not most) cases of joint illegal enterprise, is less perplexing. Section 54 has quite a limited area of operation and is unlikely to apply to most motor vehicle accidents. That being so, there is no reason to suppose that it was intended to exclude the operation of general law principles in these areas.’^[21]

CONCLUSION

The purpose for which a car is being driven at the time of a motor vehicle accident and the complicity of both parties to that purpose are critical to the availability of the joint illegal enterprise defence to a defendant driver. There are clear-cut cases – such as a car crash while joyriding – where no duty of care to a passenger who is complicit in the offence will arise so long as they have not withdrawn from the commission of the offence. There are other cases that are not so clear. If the use of a vehicle is for a purpose unconnected to criminal activity, the fact that an adjacent criminal activity is being undertaken by both the plaintiff and the defendant at the time of a motor vehicle accident is irrelevant. In the case of Bevan v Coolahan, the use of the vehicle was seen by the majority as essential to the commission of the offence. In the case of Miller, the common purpose of illegally using the vehicle had been severed when the plaintiff asked to be let out of the car.

Verity Long-Droppert is a barrister at Francis Burt Chambers in Perth, WA. After a handful of years practising as a solicitor in commercial litigation, she was called to the Bar in 2018. Verity was elected to the WA Bar Association in 2020. She practises predominantly in commercial law with an interest in personal injuries and medical negligence. Verity is a current member of the WA Bar Council and is the Secretary of the WA ALA Committee. EMAIL [e-mail].

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^[1] J Goudkamp, ‘The defence of joint illegal enterprise’, Melbourne Law Review, Vol. 34, 2010, 426 at 427.

^[2] (2011) HCA 9 (Miller).

^[3] [1970] HCA 2; (1970) 119 CLR 397.

^[4] WJ Ford, ‘Tort and illegality: The ex turpi causa defence in negligence law (part two)’, Melbourne Law Review, Vol. 11, 1977, 164 at 167.

^[5] [1970] HCA 2; (1970) 119 CLR 397, 424.

^[6] [1991] HCA 18; (1991) 172 CLR 243.

^[7] Ibid, 254–5.

^[8] Ibid, 270–3.

^[9] Ibid, 277–80; Goudkamp, above note 1.

^[10] Miller, above note 2.

^[11] Miller v Miller [2008] WADC 46.

^[12] Miller v Miller [2009] WASCA 199.

^[13] Miller, above note 2, [106].

^[14] Ibid, [16].

^[15] Ibid, [18].

^[16] Ibid, [130]–[131].

^[17] [2019] NSWCA 217 (Bevan).

^[18] See the analysis of this case in H Huang, ‘Does a duty of care exist to the plaintiff if both the plaintiff and the driver were on illicit drugs at the time of the accident?’, McCabe Curwood (11 September 2019) <https://mccabecurwood.com.au/duty-care-exist-plaintiff-driver-illicit-drugs-accident/>.

^[19] Bevan, above note 17, [33].

^[20] Ibid, [148].

^[21] Ibid, [24].