Gala v Preston [1991] HCA 18

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Gala v Preston [1991] HCA 18

ORDER Appeal allowed with costs. Set aside the orders of the Full Court of the Supreme Court of Queensland and, in lieu thereof, order that the appeal to that Court be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1991, May 28 Mason C.J., Deane, Gaudron and McHugh JJ.

The question raised in this appeal is: what are the principles which govern the liability of the driver of a motor vehicle to a passenger in that vehicle who is injured as a result of the careless driving of the vehicle, in the course of a joint enterprise that involves the commission of a criminal offence, being the theft of the vehicle and its unlawful use contrary to s. 408A of The Criminal Code Q. ("the Code")? The question is one of fundamental importance and it calls for a consideration of a number of decisions of this Court.

The facts

Shortly before midnight on 14 August 1984 the respondent (the plaintiff at the trial), then aged nineteen, suffered injuries when the motor vehicle in which he was a passenger veered off the road and struck a tree. The vehicle was being driven by the first appellant (the first defendant at the trial). At the time of the accident the respondent, along with the first appellant and two other youths, Steven Burn and Ray Simms, who were passengers in the vehicle, was engaged in the unlawful use of the motor vehicle contrary to s. 408A of the Code.

The primary judge found that at about noon on 14 August 1984 the four youths went to the Customs House Hotel, Maryborough, where they began to play pool and consume liquor. They had lunch at about 2.00 p.m. The respondent consumed approximately forty scotches during the course of the afternoon and evening. His companions drank beer and consumed an equivalent amount of alcohol to that consumed by the respondent. The primary judge found that the probabilities were that the respondent and the first appellant, at the time of the accident, had a blood alcohol concentration in excess of 0.2 per cent.