Smith v Jenkins [1970] HCA 2

High Court of Australia Barwick C.J. Kitto, Windeyer, Owen and Walsh JJ. Smith v Jenkins [1970] HCA 2

ORDER Appeal allowed with costs. Order of the Supreme Court of Victoria set aside and in lieu thereof order that judgment for the defendant with costs be entered in the action.

Cur. adv. vult.

The following written judgments were delivered:—

1970, Feb. 6 Barwick C.J.

The respondent in this appeal sued the appellant in the Supreme Court of Victoria [Jenkins v. Smith [7] ] for damages for personal injuries caused as the respondent claimed by the negligence of the appellant in the management of a motor car. He recovered a verdict which the appellant seeks to have set aside. At the time of the receipt of the respondent's injuries the respondent was in a car being driven by the defendant. It may be taken that there was ample evidence before the judge who tried the case without a jury that the appellant was careless in the driving of the car and that the injuries of the respondent resulted from that carelessness. But both the respondent and the appellant were at the time unlawfully using the car, the property of another, contrary to the provision of s. 81 (2) of the Crimes Act 1958 of the State of Victoria. The driving of the car by the appellant, the manner of which is the basis of the respondent's complaint, was in the circumstances as much a use of the car by the respondent as it was a use by the appellant. That use was their joint enterprise of the moment. The appellant submits that in these circumstances an award of damages ought not to have been made in favour of the respondent.

1. [1969] V.R. 267.

In my opinion, the appellant, in the particular circumstances of the case, should succeed in this submission. But a question which has considerably exercised my mind is upon what basis ought the dismissal of the respondent's action be placed. The choice it seems to me is between a refusal of the law to erect a duty of care as between persons jointly participating in the performance of an act contrary to the provisions of a statute making their act a crime punishable by imprisonment and a refusal of the courts, upon grounds of public policy, to lend their assistance to the recovery of damages for breach in those circumstances of a duty of care owed by the one to the other, because of the criminally illegal nature of the act out of which the harm arose. I have come to the conclusion that the former is the proper basis. The duty of care, which is the prerequisite to success in an action of negligence to recover damages for personal injuries, is a duty which the law imposes upon a party by reason of his relationship to another in the circumstances of the case. No doubt considerations of public policy have their place in the decision in the particular case to impose or erect such a duty. But basically it is the relationship of the parties which gives rise to the duty. Here the respondent and the appellant, in my opinion, did not relevantly stand in the relationship of passenger and driver. Their relationship was that of joint participants in the very act, itself unlawful in the sense I have mentioned, out of which the mischief to the respondent arose. In my opinion, the law will not hold that a duty of care arose out of that relationship.