Miller v Miller [2011] HCA 9

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

DANELLE EVELYN MILLER APPELLANT

AND

MAURIN ASHTON MILLER RESPONDENT

Miller v Miller [2011] HCA 9

7 April 2011

P25/2010

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Court of Appeal of the Supreme Court of Western Australia made on 6 November 2009 and, in their place, order that the appeal to that Court be dismissed with costs.

On appeal from the Supreme Court of Western Australia

Representation

B W Walker QC with J A Thomson for the appellant (instructed by Kott Gunning Lawyers)

G M Watson SC with N J Owens and R A Yezerski for the respondent (instructed by Tottle Partners)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Miller v Miller

Negligence – Duty of care – Illegality – Plaintiff and defendant illegally using stolen motor vehicle in contravention of s 371A of The Criminal Code (WA) ("Code") – Plaintiff twice asked defendant to be let out of vehicle – Requests not complied with – Whether plaintiff can recover damages for injuries sustained as result of defendant's negligent driving of vehicle – Whether defendant owed duty of care to plaintiff – Whether statutory purpose of s 371A of Code incongruous with duty of care between joint illegal users of vehicle – Whether plaintiff's requests sufficient to effect withdrawal from joint illegal enterprise – Whether reasonable steps available to plaintiff to prevent commission of offence.

Words and phrases – "duty of care", "illegal use", "joint illegal enterprise", "statutory purpose".

The Criminal Code (WA), ss 8, 371A.

Criminal Code Act Compilation Act 1913 (WA), Appendix B, s 5.

1. FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ. Early in the morning of 17 May 1998, the appellant (Danelle Miller – "Danelle"), then aged 16 years, wanted to go from Northbridge, a Perth suburb, to her home in Maddington, another Perth suburb. She had been drinking, had tried unsuccessfully to enter a nightclub and was wandering in the streets with her sister and cousins. The last train had left. She did not have the money to pay for a taxi. So she decided to steal a car. 2. Having started a car in the car park near the nightclub, Danelle asked her older sister (Narelle) to drive her and her younger cousin (Hayley) home. Danelle knew that Narelle had been drinking and did not hold a driver's licence. 3. The respondent (Maurin Miller – "Maurin") was at a cab rank when he saw the car leaving the car park where it had been standing. Maurin was a cousin of Danelle's mother. He was aged 27 years. He said to Narelle: "I'm your uncle let me drive." Narelle moved out of the driver's seat and he took the wheel. Some of Maurin's friends who were waiting at the cab rank also got into the car. Nine passengers jammed themselves into the car with Maurin driving, and off they set. For a time, Maurin drove sensibly. But then he began to speed and to drive through red lights. Danelle asked him to slow down, and then she asked him to stop and let her and Narelle out. But Maurin drove on, saying that they were "all right", and should come with him to his house. 4. Near Maddington, the suburb where Danelle lived, Maurin slowed the car down and Danelle again asked to be let out. Maurin laughed off her concerns. Shortly afterwards, having sped up, he lost control of the car. The car struck a pole. One passenger was killed. Danelle was very seriously injured and is now a tetraplegic. She sued Maurin in the District Court of Western Australia claiming damages for negligence. 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? 6. In many Australian jurisdictions, these questions would require consideration of statutory provisions intended to regulate recovery of damages for personal injury suffered when the plaintiff was acting illegally[1]. There being no relevant statutory provisions of this kind in Western Australia, the issues that arise in this matter turn upon the application of common law principles. 7. At trial in the District Court of Western Australia, the parties agreed that the only live issue in the proceeding was whether Maurin owed Danelle a duty of care. They agreed that, if he did, Danelle should be found guilty of contributory negligence and that her responsibility for her injuries should be assessed at 50 per cent. A pleaded defence of voluntary assumption of risk was not pressed. The denial of negligence in fact was not pressed. The primary judge (Schoombee DCJ) held[2] that Maurin owed Danelle a duty of care. 8. On appeal, the Court of Appeal of the Supreme Court of Western Australia (McLure, Buss and Newnes JJA) held[3] that Maurin owed Danelle no duty of care and that her action should therefore fail. As the case was argued at first instance, and on appeal, the denial of the existence of a duty of care rested entirely upon the assertion that Maurin and Danelle had engaged in a joint illegal enterprise of illegally using a motor car without the consent of the owner, contrary to s 371A of The Criminal Code (WA) ("the Code"). 9. By special leave, Danelle appealed to this Court. The appeal should be allowed. By the time the accident happened, Maurin and Danelle were no longer engaged in a joint illegal enterprise. Danelle had stolen the car. She and Maurin and some, perhaps all, of the other passengers became parties to a joint illegal enterprise when they agreed to Maurin driving them in what they knew to be a stolen car. Danelle withdrew from that joint enterprise, of using the vehicle without the consent of its owner, when she asked to be allowed to get out of it. 10. To explain why Danelle's requests to get out of the car are important to the resolution of the issues in this matter, it is necessary to examine how the fact that a plaintiff has engaged in illegal conduct in the course of, or in connection with, events said to give rise to liability in negligence bears upon the liability of the defendant to the plaintiff. The examination of the significance that is to be attached to illegality of the kind described will take the following course. First, reference will be made to some preliminary considerations. Second, illegality in tort will be placed in the larger context provided by looking at the significance that has been attached to illegality in the law of contract and trusts. Third, reference will be made to some of the cases that have considered the issue. Fourth, the relevant principles will be identified. Fifth, consideration will be given to the statutory provisions that were engaged in this matter, some reference made to their legislative history, and their purposes identified. Sixth, the principles will be applied to the facts of this case.