‘Why should courts not regulate the activities of the wrongdoers by requiring of the driver that he or she exercise reasonable care for the safety of other road users and any passenger in the vehicle, whether or not the passenger is complicit in the crime?’1
The recent High Court of Australia decision in Miller v Miller  HCA 9 is remarkable for a number of reasons. Firstly, it reversed a decision which deprived a tetraplegic girl compensation because she was involved in a joint criminal enterprise. It provides a salient discussion post-proximity duty of care in the High Court (and in doing so comprehensively reject the reasoning of cases like Gala v Preston. And it draws a clear distinction between how illegal activities are treated in the law of torts and in contract and equity.
The Facts and the Reasoning
Put in its most simple terms, the Plaintiff was involved in stealing a car while she was drunk and refused entry into nightclubs and bars. Another older family member ( a second cousin, and the Defendant) intercepted her behaviour and insisted that he drive the car. Initially he drove safely, but began speeding and running red lights.
Most notably, the plaintiff asked to be let out of the car twice, but was refused.
The car subsequently crashed, the plaintiff suffering serious injuries. At trial and Court of Appeal level it was found that no duty of care was owed to the plaintiff. The High Court (Heydon dissenting) disagreed.
There were five major principles the majority considered most important:
- The central issue in the present case for determining whether a duty of care should be imposed is the coherence of the law. The question to be address is whether the defendant’s particular criminal conduct was inconsistent with a duty of care in negligence being owed to her: at , , , , .2
- The mere fact that the appellant and the respondent were involved in a joint criminal enterprise did not prevent a duty of care being owed by the appellant to the respondent. The parties were both participants in a joint criminal enterprise and in a relationship of passenger and driver. Whether a duty of care was owed between the parties needs tobe assessed against the totality of the relationship between the parties: at , , , , .3
- Where the illegal conduct constitutes a statutory offence, close attention needs to be paid to what the statutory provision prohibits, its purposes and whether the imposition of a duty of care would be incongruous with the statutory provision: at , , , , , .4
- If the probable consequence of committing the offence of illegally taking a motor vehicle were reckless or dangerous driving, then s 8 of the Criminal Code (WA) would hold those complicit in the original offence criminally liable for the subsequent offence. To allow an injured passenger to recover damages for personal injuries sustained by the reckless or dangerous driving would be inconsistent with the criminal law’s imposition of guilt on the passenger. Such inconsistency does not require that the risk of reckless or dangerous driving in fact eventuate: at -, , , .
- In the present case, the appellant twice asked to be let out of the car. There were no reasonable steps available to her o prevent the continued illegal use of the car. Therefore, the appellant established that she had withdrawn from the common purpose of illegally using the car within the meaning of s 8(2) of the Criminal Code (WA). Consequently, the respondent owed the appellant a duty of care: at , .
This case shows a sophisticated High Court unwary of making critical comment of former High Court approaches to when a duty of care should be owed.
I submit that the significance of this case will become clearer as practitioners are expected to apply rigorous legal reasoning to their pleadings and arguments.
Marc Testart, Barrister
1 Per French CJ, Gummow Hayne, Crennan Keifel and Bell JJ.
2 Sullivan v Moody (2001) 207 CLR 562 ; 183 ALR 404 ;  HCA 59; Agricultural and Rural Finance Pty Ltd v
Gardiner (2008) 238 CLR 570 ; 251 ALR 322 ;  HCA 57; CAL No 14 Pty Ltd v Motor Accidents Insurance
Board (2009) 239 CLR 390 ; 260 ALR 606 ; 54 MVR 346 ;  HCA 47, cited.
3 Insurance Commissioner v Joyce (1948) 77 CLR 39 ;  2 ALR 356 ;  HCA 17; Graham Barclay
Oysters Pty Ltd v Ryan (2002) 211 CLR 540 ; 194 ALR 337 ;  HCA 54, applied.
4Smith v Jenkins (1970) 119 CLR 397 ;  ALR 519 ;  HCA 2; Beresford v Royal Insurance Co Ltd
 2 KB 197 ;  2 All ER 243, applied