The High Court’s decision in Miller v Miller raises again the general question of the ability of a party to a joint criminal enterprise to sue another party to the caper.
The decision undoes the inflexible approach of previous unaninimous High Court decisions (Smith v Jenkins and Gala v Preston) that one illegal user of a vehicle does not owe a duty of care to a passenger complicit in the illegal use.
Facts
The facts can be stated briefly, and sound like they’ve been lifted from a torts law exam:
Danelle stole a car. She moved into another seat of the car and allowed Maurin to drive it. She knew that he had been drinking, and probably that he was unlicensed. Maurin started driving the car dangerously. Danelle asked to be let out. Maurin continued, crashed the car and Danelle was seriously injured as a result.
The majority (French CJ, Gummow, Hayne, Crennan, Keiffel and Bell JJ) posed the question they had to answer [at 5]:
Can Danelle recover damages for negligence from Maurin? Does her theft of the car, or her subsequent use of the car (or some combination of both her theft and her use of the car), defeat her claim for damages for negligence?
Legal principles
In some Australian jurisdictions the issue would be resolved by a specific statutory provision regulating the recovery of damages for personal injury suffered when the plaintiff was acting illegally. Western Australia doesn’t have one so the issue was determined by the common law. (Section 14G(2)(b) in Part IIB of the Wrongs Act 1958 (Vic.) provides that a plaintiff’s illegal activity must be considered in a claim for damages, but it doesn’t specify how).
The majority began by basically writing off the illegality doctrine of ex turpi causa non oritur actio as inapplicable to negligence (though the Court did acknowlege [at 15] that the law in this respect needs to remain congruent with the rest of the civil law, notably contract and trusts.) The Court found the maxim to be vague and unhelpful.
At 16,
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.
The relationship between the parties in a negligence action is the foundation of the tort. Here, the Court drew attention to the fact that different ways of defining the relationship between Danelle and Maurin suggested contrary outcomes [at 47]:
One aspect of the relationship between the parties in the present case was that they were joint participants in an illegal act. Another aspect of their relationship was that the plaintiff was a passenger in a motor vehicle being driven by the defendant. The relationship between the parties could therefore be described as a relationship of passenger and driver. But, just as it is wrong to describe the relationship between them only as that of participants in a joint criminal enterprise, it is wrong to describe their relationship only as that of passenger and driver. Both characterisations of the relationship are accurate, but neither is complete. Both characterisations must be applied to describe the relevant circumstances fully.
Edit: The majority held that Danelle was a party to the theft. Consequently, she was a party to the bad driving through the operation of s 8 of the WA Criminal Code.
That reads,
8. Offences committed in prosecution of common purpose
(1) When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
(2) A person is not deemed under subsection (1) to have committed the offence if, before the commission of the offence, the person —
(a) withdrew from the prosecution of the unlawful purpose; and
(b) by words or conduct, communicated the withdrawal to each other person with whom the common intention to prosecute the unlawful purpose was formed; and
(c) having so withdrawn, took all reasonable steps to prevent the commission of the offence.
The High Court held that dangerous driving was a probable consequence of the theft of the car. But the Court also accepted that Danelle had withdrawn from that purpose by asking to be let out. (See the comments attached to this post for a discussion of why that interpretation is questionable. And particular thanks to Jeremy Gans for his analysis.)
Heydon J wrote his own judgment in dissent, broadly in agreement on many points but outlining a hypothetical series of arguments he would have run if he been acting for the respondent. (I predict we’re going to see more and more of this kind of thing from Heydon J during his remaining 3 years on the bench). He held that the request to get out was insufficient to constitute a withdrawal from the criminal enterprise.
I’ve criticised the High Court’s judgments lately. Miller is a case that does involve a more comprehensive critique of previous cases and a bolder approach to legal principle. But in this case the principle arrived at was each case needs to be dealt with on its merits.
I'm not sure I agree with you 100% on your legal work there, Dr M.a) “Danelle… allowed Maurin to drive it. She knew that he had been drinking, and probably that he was unlicensed.” I think you're thinking of the first person who Danelle asked to drive, Narelle (at [2]). I can't find any statement in the judgment that Maurin was drunk, unlicensed or that Danelle knew that. To the contrary, he drove sensibly at first and then started driving crazy.b) “The majority held that Danelle was a party to the theft, not the bad driving.” My reading is that the HCA unanimously held that Danelle was a party to both, courtesy of the WA CC's 'probable consequence' rule: see [93]. (Nasty ruling there, I think.)c) “And it was the bad driving that caused the accident (and the injuries) rather than the theft, so Danelle should not be prevented from claiming damages.” To the contrary, my reading is that the duty is negated by the car theft, whether or not dangerous driving actually eventuates (see [100].) That's because car theft supposedly carries a risk of bad driving and purpose of the offence of car theft is to stop that risk (see [101].) (Dubious reading of the statute, I think, and dodgy public policy too.)d) “There was also some discussion about common enterprise to the effect that, on the facts, Danelle might have withdrawn from the criminal enterprise by asking to be let out.” Actually, this was the ratio of the whole decision and the only reason that Danelle won her claim (see [106] cf [119]).As Heydon J correctly points out, the majority's reasoning on withdrawal is contentious, as it cuts across the idea that mere change of mind isn't enough. The majority's approach is a literal reading of the 'all reasonable steps' test, but there's a contrary argument that the test also requires a timely withdrawal. It is hard to see why – if Danelle was complicit in the dangerous driving (dubious, but that's the ruling) – that her later request to the driver to slow down is enough to remove her liability for Maurin's crimes. (Perhaps it was enough to restore Maurin's duty of care, though, but that's not how the HCA reasoned.)
What gets missed here is that it won't be Maurin paying out. He will not have two stolen credit cards to rub together. Instead it will be the WA-equivalent of the TAC or an insurer or a government agency that ends up paying out.This isn't the worst example I have heard of. There was a case where a burglar fell off the roof of a house he was doing over and sued the owners for not making the roof safe. Tony
I also read it as the sister was the one who didn't have the licence and was Brahms-and-Liszt. But on re-reading it looks like Maurin Miller – the respondent – “had been drinking, and whom she correctly assumed not to have a driver's licence. Just as the appellant was tired and affected by drink, so was the respondent …” (Heydon at para 121). Sorry to doubt you Doc!
Me too. Thanks for correcting my correction Anonymous. I wonder what else I've gotten wrong?Not sure why the majority left these crucial facts out of their judgment! Heydon's hypothetical tells us more than the majority… (Also, Danelle, Narelle, Shanelle… quite the cast of characters.)
I thought it would be wise to check the lower court judgment. Here's the trial judge's summary of Danelle's evidence (which the trial judge accepted):”The plaintiff gave evidence that she expected the defendant to drive her home safely and to look after her. She said that she had known the defendant for as long as she could remember and that she regarded him as her uncle. She had a good relationship with him, respected him and looked up to him, as he was older. She had seen him from time to time and he had taught her some 'Ninja' tricks as a child (flipping onto your feet from a horizontal position on your back). She had no reason to be concerned about any of his behaviour in the past. She had not previously driven with the defendant in a car and did not know whether he had a driver's licence or not. In cross-examination she admitted that she assumed that he did not have a driver's licence. She knew that he had been drinking but did not know how much.”So, both Dr M and Heydon are accurate enough, though there's a nuance and hesitation in Danelle's evidence that doesn't quite come through in the HCA judgment.
How can voluntary assumption of risk not be the CENTRAL issue in this case??????
Another thing I just noticed about the withdrawal point: WA's CC only permits withdrawal 'before the commission of the offence'. The relevant offence here is dangerous driving (and not the dangerous driving causing death that also injured the plaintiff.) There's surely an argument that withdrawal was therefore unavailable when the plaintiff purported to withdraw, because the dangerous driving was already happening at that point.
I'm not sure I agree with you 100% on your legal work there, Dr M.a) \”Danelle… allowed Maurin to drive it. She knew that he had been drinking, and probably that he was unlicensed.\” I think you're thinking of the first person who Danelle asked to drive, Narelle (at [2]). I can't find any statement in the judgment that Maurin was drunk, unlicensed or that Danelle knew that. To the contrary, he drove sensibly at first and then started driving crazy.b) \”The majority held that Danelle was a party to the theft, not the bad driving.\” My reading is that the HCA unanimously held that Danelle was a party to both, courtesy of the WA CC's 'probable consequence' rule: see [93]. (Nasty ruling there, I think.)c) \”And it was the bad driving that caused the accident (and the injuries) rather than the theft, so Danelle should not be prevented from claiming damages.\” To the contrary, my reading is that the duty is negated by the car theft, whether or not dangerous driving actually eventuates (see [100].) That's because car theft supposedly carries a risk of bad driving and purpose of the offence of car theft is to stop that risk (see [101].) (Dubious reading of the statute, I think, and dodgy public policy too.)d) \”There was also some discussion about common enterprise to the effect that, on the facts, Danelle might have withdrawn from the criminal enterprise by asking to be let out.\” Actually, this was the ratio of the whole decision and the only reason that Danelle won her claim (see [106] cf [119]).As Heydon J correctly points out, the majority's reasoning on withdrawal is contentious, as it cuts across the idea that mere change of mind isn't enough. The majority's approach is a literal reading of the 'all reasonable steps' test, but there's a contrary argument that the test also requires a timely withdrawal. It is hard to see why – if Danelle was complicit in the dangerous driving (dubious, but that's the ruling) – that her later request to the driver to slow down is enough to remove her liability for Maurin's crimes. (Perhaps it was enough to restore Maurin's duty of care, though, but that's not how the HCA reasoned.)
The High Court even quotes the full text of s8(2) at [79] and, at [104], recognises that the offence was ongoing, and yet asserts without explanation that it was open to assert that Danelle had withdrawn from the enterprise and uses s8(2) as the basis for the conclusion.In this area though, it may be dangerous to apply s8(2) overly strictly. In the criminal law, withdrawal after the commission of the offence is meaningless, because it cannot undo the fact that the person has already committed the offence. In the civil context though, withdrawal from a criminal enterprise might be sufficient to terminate a person's involvement in the continuation of the enterprise and then restore any duty of care that is otherwise suspended by the enterprise.
Yes, withdrawal might work in the civil context. But that just raises the question of why reliance on criminal law doctrines (like joint criminal enterprise, especially with an objective test of liability as used in WA) is apt to resolve civil disputes. While I agree that agreeing to a dangerous crime should be a bar to suing for negligence, I think the evidence is slim that Danelle agreed to anything other than a (continuing) theft.
What gets missed here is that it won't be Maurin paying out. He will not have two stolen credit cards to rub together. Instead it will be the WA-equivalent of the TAC or an insurer or a government agency that ends up paying out.This isn't the worst example I have heard of. There was a case where a burglar fell off the roof of a house he was doing over and sued the owners for not making the roof safe. Tony
I also read it as the sister was the one who didn't have the licence and was Brahms-and-Liszt. But on re-reading it looks like Maurin Miller – the respondent – \”had been drinking, and whom she correctly assumed not to have a driver's licence. Just as the appellant was tired and affected by drink, so was the respondent …\” (Heydon at para 121). Sorry to doubt you Doc!
Me too. Thanks for correcting my correction Anonymous. I wonder what else I've gotten wrong?Not sure why the majority left these crucial facts out of their judgment! Heydon's hypothetical tells us more than the majority… (Also, Danelle, Narelle, Shanelle… quite the cast of characters.)
I thought it would be wise to check the lower court judgment. Here's the trial judge's summary of Danelle's evidence (which the trial judge accepted):\”The plaintiff gave evidence that she expected the defendant to drive her home safely and to look after her. She said that she had known the defendant for as long as she could remember and that she regarded him as her uncle. She had a good relationship with him, respected him and looked up to him, as he was older. She had seen him from time to time and he had taught her some 'Ninja' tricks as a child (flipping onto your feet from a horizontal position on your back). She had no reason to be concerned about any of his behaviour in the past. She had not previously driven with the defendant in a car and did not know whether he had a driver's licence or not. In cross-examination she admitted that she assumed that he did not have a driver's licence. She knew that he had been drinking but did not know how much.\”So, both Dr M and Heydon are accurate enough, though there's a nuance and hesitation in Danelle's evidence that doesn't quite come through in the HCA judgment.
How can voluntary assumption of risk not be the CENTRAL issue in this case??????
Another thing I just noticed about the withdrawal point: WA's CC only permits withdrawal 'before the commission of the offence'. The relevant offence here is dangerous driving (and not the dangerous driving causing death that also injured the plaintiff.) There's surely an argument that withdrawal was therefore unavailable when the plaintiff purported to withdraw, because the dangerous driving was already happening at that point.
The High Court even quotes the full text of s8(2) at [79] and, at [104], recognises that the offence was ongoing, and yet asserts without explanation that it was open to assert that Danelle had withdrawn from the enterprise and uses s8(2) as the basis for the conclusion.In this area though, it may be dangerous to apply s8(2) overly strictly. In the criminal law, withdrawal after the commission of the offence is meaningless, because it cannot undo the fact that the person has already committed the offence. In the civil context though, withdrawal from a criminal enterprise might be sufficient to terminate a person's involvement in the continuation of the enterprise and then restore any duty of care that is otherwise suspended by the enterprise.
Yes, withdrawal might work in the civil context. But that just raises the question of why reliance on criminal law doctrines (like joint criminal enterprise, especially with an objective test of liability as used in WA) is apt to resolve civil disputes. While I agree that agreeing to a dangerous crime should be a bar to suing for negligence, I think the evidence is slim that Danelle agreed to anything other than a (continuing) theft.