Bevan v Coolahan

1. [1]

   BASTEN JA: The appellant, Chloe Bevan, was seriously injured when the car in which she was a passenger left the road and collided with a telegraph pole on Sandgate Road, Wallsend, in Newcastle.

2. [2]

   The accident occurred on 9 August 2013. The four occupants of the car had all consumed cannabis and crystal methamphetamine. The appellant sued the driver and the owner of the car (who was also a passenger) to recover damages for the injuries caused by the negligent or reckless driving which caused the accident. The trial judge, Gibson DCJ, dismissed the claim on the basis that they were all involved in a joint illegal enterprise which precluded the plaintiff recovering damages from another person involved in the same enterprise. [1] The central issue on the appeal was whether the trial judge was correct in reaching that conclusion.

Relevant legal principles

1. [3]

   Prior to the enactment of the Civil Liability Act 2002 (NSW), and comparable legislation in most other Australian jurisdictions, general law principles denied an injured plaintiff a right of recovery in circumstances where the injury was suffered in the course of a joint illegal enterprise, as a result of the negligence of another participant in the enterprise. The core operation of the principle is sometimes illustrated by reference to an example given in National Coal Board v England [2] of two burglars seeking to crack a safe by means of explosives; if one negligently handles the explosive charge and injures the other, the latter cannot maintain an action for negligence against the former. However, the basis of the denial of liability, and hence the scope of the principle’s operation have proved less easy to identify. [3] In the present case the legal rationale for the principle was a matter of importance because it was necessary to determine whether the principle continues to operate with s 54 of the Civil Liability Act, or whether it has been superseded by that provision.

2. [4]

   This issue was not disregarded in the trial of this matter, but it arose in a somewhat oblique fashion. The amended defence in the District Court contained the following paragraph:

3. [5]

   In terms, the pleading did not distinguish between a defence available under the general law and one available under s 54 of the Civil Liability Act. However, the case was run on the basis of the general law defence. Indeed, it was the plaintiff who relied on s 54, submitting that “s 54 is the only way that such a defence should be pleaded”, although the judge noted that the basis of the submission was confused. [4]

4. [6]

   The difficulty that would have faced the defendants had they relied on s 54 may be explained by reference to the terms of the section.

5. [7]

   As appears from s 54(2), the section has no application where the defendant’s conduct that caused the injury constitutes an offence. Had the defendants sought to rely upon s 54 they would have expected to be met with an allegation (see s 54(5)) that the driver had either a “prescribed illicit drug” in his blood, or was under the influence of alcohol or any other drug, and therefore fell within the prohibitions against driving a motor vehicle, contained in ss 111 and 112 of the Road Transport Act 2013 (NSW). In considering contributory negligence (contingently, given her finding that there was no liability), the judge accepted particulars which alleged that the plaintiff knew that the first defendant “had consumed at least five cones of ice in a period which commenced approximately four hours prior to the accident” and that she knew or ought to have known “the driver was affected by illegal drugs.” It would therefore have been likely that a defence relying on s 54 would have failed because the conduct of the driver constituted an offence. Indeed, s 54 may have little operation with respect to injuries suffered in motor vehicle accidents because negligent driving is itself an offence pursuant to s 117(1) of the Road Transport Act.

6. [8]

   The operation of s 54 was, nevertheless, not disregarded in the course of the trial. The fourth issue identified by the trial judge was, in part, “whether s 54 of the Act covers the field in regulating the common law defence of illegality in New South Wales.” [5] There are two interrelated steps in addressing that question.

7. [9]

   The trial judge concluded that s 54 did not “cover the field”, or preclude reliance upon the common law defence, by reference to s 3A of the Civil Liability Act. That section relevantly provides:

8. [10]

   The application of s 3A is not as straightforward as the submissions both in this Court and at trial assumed. On the one hand, the concept of a law which gives “protection from liability” is not beyond doubt. On one view, the general law defence of illegality relies upon an absence of any duty of care. Whether a law identifying the limits of the duty can properly be described as providing “protection from civil liability” is not beyond argument.

9. [11]

   Secondly, there is the problem of inconsistency. Where a defendant injures a person in breach of a duty of care, but without committing an offence, and the plaintiff is engaged in criminal activity which contributes to the injury, but of which the defendant was ignorant, it may well be that the general law would not preclude recovery. Kitto J suggested in Smith v Jenkins that a driver carrying an escaped convict who was eluding lawful pursuit would owe the passenger the same duty as would be owed to a passenger not engaged in a criminal escapade. [6] In that event, despite s 3A, it would be necessary to consider whether there was inconsistency between s 54 and a general law defence, which favoured the operation of s 54 in place of the general law. At least, the conclusion that s 54 does not “cover the field”, given the language of s 3A, allows a live question as to the effect of inconsistencies.

10. [12]

    A broader consideration, noted by Leeming JA, is that s 54 gives immunity to a defendant where the plaintiff was engaged in serious offending, which materially contributed to the injury, but only where the conduct of the defendant did not constitute an offence. There may be nice questions as to the operation of various aspects of the provision in particular circumstances, but, broadly speaking, it is likely to have little operation in relation to joint illegal enterprises. That set of circumstances would, prior to 2002, have given rise to a common application of the general law defence, as illustrated by the example of the two burglars and by the common modern cases involving stolen cars. While it may be accepted that s 54 was not intended to cover the field covered by the general law defence, there is a live question as to its effect with respect to joint illegal enterprises.

11. [13]

    For example, many of the earlier cases concerned trespassers injured in circumstances where there was a danger or defect in the premises upon which they entered, due to the negligence of the occupier. [7] There was no joint enterprise involved, legal or otherwise. With the abandonment of separate rules with respect to different categories of persons on private property, the defence of illegality tends not to be raised against a plaintiff in those circumstances.

12. [14]

    In Henwood v The Municipal Tramways Trust (South Australia) [8] the plaintiffs were the parents of a man who had leant out of the window of a tram to vomit and been struck on the head by two stanchions erected close to the side of the tram. His conduct was illegal in that a by-law made under statute prohibited a passenger projecting or leaning his head or other portion of his body or limbs out of any window of the tram. There were conspicuous notices in the tram car warning of the dangers of leaning out. The High Court concluded that the unlawfulness of the plaintiff’s conduct did not preclude him recovering damages, based on a breach of duty of care on the part of the Tramways Trust. The result would not have been affected by s 54 because the plaintiff’s conduct did not constitute a “serious offence” as defined in s 54(3). However, had it done so, the effect of s 54 would have been to prohibit an award of damages in respect of such liability.

13. [15]

    In Henwood, Latham CJ stated at 445:

14. [16]

    After comparing cases in which a statutory obligation may give rise to a duty of care enforceable by an injured party, Latham CJ applied a similar process of statutory construction in determining whether the law penalising the plaintiff’s conduct carried with it an implication that there was immunity from liability to a person who injured himself in contravention of the law. [9] A similar approach was adopted by other members of the Court. [10]

15. [17]

    That approach was affirmed in Miller v Miller, [11] as appears in the reasoning of six members of the Court:

16. [18]

    Miller v Miller involved offences of taking and illegally using a motor vehicle. The plaintiff had taken the vehicle and both she and the driver had used it illegally. The driver was charged with a number of offences arising out of the use of the car and the accident in which the plaintiff was injured. After considering in detail the statutory provisions governing such offences in Western Australia the joint reasons continued:

17. [19]

    The plaintiff in Miller v Miller was able to recover, but only because she had taken sufficient steps to disengage herself from the joint illegal enterprise before the accident occurred. In other respects, the circumstances of Miller v Miller (subject to consideration of the legislation applicable in New South Wales) were not dissimilar to the present facts. Yet it is clear that s 54 would have no application in the circumstances of Miller v Miller, because s 54(2) would prevent the application of the section. It might be thought surprising if the effect of s 54 would lead to a different result in this State.

18. [20]

    It is, of course, relevant to note that the Court in Miller v Miller was conscious of the fact that Western Australia, unlike other Australian jurisdictions, did not have an equivalent of the Civil Liability Act. It stated:

19. [21]

    That dictum does not indicate that general law principles have no operation in this State. There was no consideration by the Court in Miller v Miller of the scope and operation of s 54, nor any reference to s 3A. Further, there is, understandably, a large difference between saying that a case would “require consideration of” s 54, and a statement that s 54 would govern to the exclusion of general law principles. The High Court said the former, not the latter.

20. [22]

    It is therefore necessary to consider whether, in circumstances to which s 54 expressly does not apply, the general law principles can continue to operate. In my view they can, whether or not they provide “protection from liability” in the sense envisaged by s 3A. The reasoning depends upon the resolution in Miller v Miller of the underlying principles which govern the defence of illegality. It is clear from the reasoning at [93] and [94], set out above, that the element of incongruity denies the existence of a duty of care.

21. [23]

    There are provisions in the Civil Liability Act which deny the existence of a duty of care in particular circumstances. Examples are s 5H(1) (no duty to warn of an obvious risk) and s 5M (no duty of care with respect to a recreational activity where a risk warning has been given). To similar effect, the duty of care not to cause mental harm is constrained to that which the defendant ought to have foreseen might be suffered by a person of normal fortitude: s 32. Other provisions are expressed in terms which deny liability, for example, s 5L (materialisation of an obvious risk) and ss 44 and 45 in relation to particular defendants (public authorities). Section 54(1) falls into a different category. It is a prohibition on an award of damages “in respect of liability to which this Part applies”, where specified conditions are satisfied. As Ipp JA stated in Presidential Security Services of Australia Pty Ltd v Brilley, [14] “[s]ection 54(1) does not concern the liability of the defendant, it is directed against an award of damages, rather than the existence of a liability.”

22. [24]

    Section 54, not being directed to the existence of a duty of care, and in fact assuming the existence of such a duty, is not engaged at the very point at which the general law principles apply, namely denial of the existence of a duty. So understood, the exclusion of many (if not most) cases of joint illegal enterprise, is less perplexing. Section 54 has quite a limited area of operation and is unlikely to apply to most motor vehicle accidents. That being so, there is no reason to suppose that it was intended to exclude the operation of general law principles in these areas.

Application of general law principle

1. [25]

   The trial judge set out the joint illegal enterprise asserted by the defendants in the following terms:

2. [26]

   The judge then noted that in Holland v Tarlinton, [15] the majority had relied upon a “direct connection” between the plaintiff’s injury and the crime, in a case where the parties were riding in a stolen vehicle and were attempting to escape apprehension. She continued, with respect to the present case:

3. [27]

   The analysis undertaken in Miller v Miller is analogous to that required in the present case. However, the Western Australian Criminal Code, referred to in Miller v Miller at [92], contained a deeming provision with respect to offences committed in the prosecution of an unlawful common purpose which were “a probable consequence of the prosecution of such purpose”. In this State it is necessary to have regard to the general law principles governing joint criminal enterprises. As explained in Miller v The Queen: [16]

4. [28]

   In the present case, the trip to the dealer’s premises, the purchase of drugs, the consumption of part of the drugs, and the subsequent trip home, all constituted part of the joint enterprise. The offences of driving under the influence of an illegal drug and negligent or dangerous driving were, on one view, an integral part the joint enterprise, on another view the driving in that manner was contemplated as a possible incident of the execution of the agreement.

5. [29]

   The pleaded defence referred to activities, identified either expressly or by implication by reference to provisions of the Drug Misuse and Trafficking Act 1985 (NSW), namely, possession (s 10), possession of a means of administration (ss 11 and 11A), and self-administering a drug (s 12). Although there was no reference in the pleading to ss 111 and 112 of the Road Transport Act, as noted above, they were clearly in play in the course of the trial and were referred to in the judge’s reasons. [17]

6. [30]

   In setting out the circumstances of the accident, the judge stated:

7. [31]

   In summarising her findings the judge concluded:

8. [32]

   Although there were challenges to the judge’s findings with respect to particular facts, the findings were amply supported by the evidence which, to the extent that it was given by witnesses some of whom were patently unreliable, was carefully addressed by the trial judge; there was no basis for this Court to interfere with the findings.

Conclusion

1. [33]

   There was, as the amended defence alleged, a joint illegal enterprise involving the purchase, consumption and possession of crystal methamphetamine. The use of the car to travel to the place of purchase, and back home carrying some of the purchased drugs, having consumed the rest, was an essential element in the enterprise. The possibility that the driver would, after consuming drugs, drive negligently or dangerously, and thereby commit further offences, must have been foreseen in circumstances where the very act of driving under the influence of drugs was illegal. Accordingly, it fell within the scope of a joint criminal enterprise as identified in Miller v The Queen; just as there was incongruity in the law applying a duty of care with respect to the participants in the theft and illegal use of a motor vehicle, similarly there is an incongruity in conceding an enforceable duty of care between participants in a joint enterprise involving the taking of illicit drugs and the use of a motor vehicle. The principle of joint liability meant that the plaintiff was equally responsible with the driver for his conduct in the driving of the vehicle.

2. [34]

   Accordingly, the conclusion reached by the trial judge, dismissing the plaintiff’s claim, was correct. In addition to the reasons set out above, I gratefully adopt the reasoning of Leeming JA at [40]–[64] and [107]–[120] below. I would dismiss the appeal.

Contributory negligence

1. [35]

   If the appeal is to be upheld, I agree with Leeming JA as to the cross-appeal and with his assessment of contributory negligence at 50%. There are circumstances in which it is artificial, if not incoherent, to assess contributory negligence on the hypothesis of error in dismissing the claim on the ground that the defendant was not negligent. That problem does not arise in these circumstances; the absence of liability is based on a policy which is not dependent on the carelessness of the defendant. Nor is the plaintiff’s lack of care for her own safety based on the criminality of her conduct. Rather it is based on the fact of her travelling in a vehicle with a driver she knew was affected by drugs.

2. [36]

   LEEMING JA: The simple, sad facts as found by the primary judge are readily stated. Four young people were consuming illicit drugs, including crystal methamphetamine and cannabis. They exhausted their supply. Early in the morning of 9 August 2013 they got into a car with the intention of purchasing more. They travelled to the house of a drug dealer. There the appellant, Ms Chloe Bevan, obtained more crystal methamphetamine, paying with (or more probably pledging) her brother’s iPod. All four then smoked the drug in a car park using Ms Bevan’s pipe. On the return trip, the driver Mr Jake David Coolahan lost control while negotiating a corner and crashed into a telegraph pole shortly after 3.30am. There was a factual dispute as to whether Ms Bevan said, “Slow the fuck down”, seconds before the driver lost control. Ms Bevan was in the rear seat and was seriously injured. She sued Mr Coolahan and the car’s owner, Mr Kurt John O’Connell, who was also in the vehicle.

3. [37]

   The litigation did not run smoothly. There were 14 days of hearing, spread over some 18 months. In part that was due to the illness of Ms Bevan, who collapsed in the street after giving evidence and required surgery for a fractured spine. In part it was due to poor time estimates by counsel then appearing for the parties. In part it was due to the evidence of the vehicle’s occupants. However, there is no reason to doubt the trial judge’s assessment at [12] that “the real difficulty has been the parties’ failure to identify the issues at the outset”. To be fair, the legal issues are quite complex.

4. [38]

   The primary judge produced a very substantial judgment of 389 paragraphs promptly after the hearing was complete. Its length and content reflected the course taken by the litigation. It will not be necessary to summarise most of those reasons. Her Honour dismissed Ms Bevan’s claim, notionally assessed contributory negligence at 25%, and determined damages contingently.

5. [39]

   Ms Bevan appeals from the judgment against her. Against the possibility that the appeal succeeds, the respondents cross-appeal from the contingent assessment of contributory negligence. It is agreed that Ms Bevan’s damages are $485,000.

6. [40]

   Subject to the unlawful character of the journey, it is plain that the driver owed a duty of care to the passenger Ms Bevan, which was breached and caused at least some of the injuries suffered by her. The pleaded defence denied the existence of a duty of care on the basis that:

7. [41]

   No particulars of the joint criminal enterprise were in evidence, and Ms Bevan’s counsel told the primary judge that none had been requested. Ms Bevan accepted that the pleaded defence extended to supply, possession of drugs and implements for administering them, but maintained that there was error in the primary judge relying on the offence of aiding and abetting (contrary to s 19 of the Drug Misuse and Trafficking Act 1985 (NSW)) and the driving offences under ss 111 and 112 of the Road Transport Act 2013 (NSW). This ground of appeal is not made out. Little was said in support of this ground during oral submissions in this Court, although the fact that the parties’ submissions had addressed them was raised with counsel. Nothing turns on the aiding and abetting offences, which the primary judge mentioned at [193] but did not rely upon and which need not be further considered in order to resolve this appeal. The offences under ss 111 and 112 fall into a different category, and require some regard to the course of the trial.

   1. (1)

      On 5 December 2017, a notice to admit was tendered by Ms Bevan, without objection, stating that Mr Coolahan had pleaded guilty and had been convicted of four offences, being driving a vehicle while illicit drugs were present in his blood, negligent driving, driving while his licence was suspended and failure to comply with restrictions on a P1 licence. The first offence was that created by s 111.

   2. (2)

      Sections 111 and 112 were identified as relevant in the respondents’ written submissions filed 31 January 2018, in support of a submission based on the reasoning in Miller v Miller that it would be inconsistent to hold that they owed Ms Bevan a duty of care:

   3. (3)

      In her written response dated 23 February 2018, Ms Bevan did not contend that this was outside the pleaded defence. Rather, she maintained that ss 111 and 112 required “as an indispensable element of each offence – that the person ‘drive’” and that because it was common ground that Ms Bevan never drove, the defendants’ reliance on them must fail.

   4. (4)

      At the outset of her oral submissions on 6 March 2018, Ms Bevan once again maintained, repeatedly, that there could be no joint offence and thus Ms Bevan could not be liable. The primary judge tested this submission, identifying a series of situations involving a joint criminal enterprise, including a particular case where gunman, gun supplier and procurer were all charged with the murder of a victim. Ms Bevan submitted that “the only criminal charges that could be effected here would be separate and individual”. Ms Bevan’s counsel was given the opportunity to supply a note containing any authority in support (transcript, 6 March 2018, pp 939-941).

   5. (5)

      Later in oral submissions, Ms Bevan did take a pleading point, namely, that the fact that she had provided the iPod to obtain the drugs had not been pleaded, and maintained that she did not have to respond to evidence that went in on that issue without challenge. On one reading, the submission as to the inadequacy of the particulars was capable of extending to an implicit protest as to the reliance upon ss 111 and 112. But that was never put in terms. Ms Bevan was, once again, given an opportunity to provide some authority in support.

   6. (6)

      When on 21 March 2018 further written submissions were supplied by Ms Bevan, the pleading point was not elaborated, nor were any submissions made that she did not need to respond to evidence adduced without objection, nor was any authority given for the proposition that a participant in a joint criminal enterprise could not be liable for an offence committed by another participant.

   7. (7)

      Further, in responding to the submissions on contributory negligence, Ms Bevan reiterated her point that the driving offences “are not capable of being performed ‘jointly’ with the plaintiff (or indeed any other of the occupants of the vehicle.”

   8. (8)

      The pleading point which overshadowed all this, which Ms Bevan was permitted to advance despite the absence of a reply, was that s 54 of the Civil Liability Act precluded the defendants’ reliance on joint criminal enterprise. That may in part explain what on one view was a relaxed approach to confining the defendants to their pleaded case.

   9. (9)

      What emerges from the foregoing is that submissions were repeatedly exchanged between the parties based on (a) the fact that Mr Coolahan had committed the offence contrary to s 111 of the Road Transport Act and (b) that Ms Bevan was complicit in that offence. Sections 111 and 112 of the Road Transport Act should have been pleaded by the defendants, just as s 54 of the Civil Liability Act should have been pleaded by Ms Bevan. However, this was a trial where neither side was held strictly to the pleadings, and where both chose “to disregard the pleadings and to fight the case on issues chosen at the trial”: Dare v Pulham (1982) 148 CLR 658 at 664; [1982] HCA 70. In the circumstances of this trial, I consider that the ground of appeal is not made out, and that the analysis should extend to something which was central to the facts, namely, the legal consequences of four young people having ingested prescribed illicit drugs and using a motor vehicle to obtain more.

8. [42]

   At trial, there were extensive submissions on Miller v Miller (2011) 242 CLR 446; [2011] HCA 9, culminating in an acceptance by the primary judge at [228] of the defendants’ submission that:

9. [43]

   Grounds 11-13 challenge that formulation. Contrary to Ms Bevan’s submissions at trial and in this Court, I agree with the primary judge that there is no requirement that the offence be “jointly committed”, in the sense that there is no requirement that both plaintiff and defendant personally perform the physical elements of the offence. However, I respectfully disagree with her Honour’s formulation of how the “common law” defence operates in cases in which it is applicable. Miller v Miller does not state a prescriptive test; rather it mandates a nuanced analysis of the particular statutory regime. In the present case, although the offences created by the Drug Misuse and Trafficking Act do not speak to the duty of care owed by a driver, the purpose evinced by the Road Transport Act cannot be set to one side so readily. An anterior point of disagreement is raised by grounds 14 and 15 of Ms Bevan’s notice of appeal, which are to the effect that s 54 of the Civil Liability Act 2002 (NSW) governs this area, such that the pleaded defence is inapplicable. I agree that regard must be had to s 54.

The effect of illegality upon an action for negligence

1. [44]

   Almost exactly a decade ago, when appeals under the civil liability legislation had begun to flow to the High Court, French CJ said in argument, “We have had more than one case in which the Civil Liability Act applied. Nobody seems to want to talk about it much”: Adeels Palace Pty Ltd v Moubarak [2009] HCA Trans 233. Aspects of this litigation reflect the same attitude.

2. [45]

   Senior counsel opened the appeal with the statement that “this appeal concerns the common law defence of joint illegal enterprise”. The respondents’ written submissions used the same terminology. I regard the reference to “common law” in this context as unhelpful. The defence was, after all, nothing more and nothing less than an allegation that the plaintiff’s contravention of a criminal statute had the consequence that there was no duty of care. Labelling this a “common law” defence “is apt to distract attention from the supreme importance of statute law”: see Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139 at [86], citing Sons of Gwalia Ltd v Margaretic (2007) 231 CLR 160; [2007] HCA 1 at [35]. The context of those observations was slightly different; the point is the same. Further, the position is peculiarly dependent upon State statutes – so much so that certainly the analysis and quite possibly the result will differ outside New South Wales, something which sits ill with the idea of a “single common law of Australia”.

3. [46]

   It is true that there is an important element of “common law” in the analysis when it is asserted that a statute in one category of the law (crime) precludes the existence of a private law duty in another category of the law (torts). One way of framing the analysis, commonly expressed in terms of “coherence”, is that the criminal statute, while not speaking expressly or impliedly to the private law duty, nonetheless qualifies or alters that duty because the duty would frustrate or be inconsistent with the statutory purpose, a point made in A Fell, “The Concept of Coherence in Australian Private Law” (2018) 41 Melbourne University Law Review 1160 at 1178. The different modes of analysis are well illustrated by Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7 at [25], where French CJ, Crennan and Kiefel JJ said that whether claims for money had and received could be pursued depended upon:

4. [47]

   Similarly, Gummow and Bell JJ reproduced at [96] a passage from Miller v Miller which contrasted the “express or implied legislative prohibition” with “the policy of the law, commonly called public policy”.

5. [48]

   The position is thus conceptually distinct from cases where a statute speaks directly to the existence of a duty of care. Statutes which speak directly to a duty of care may do so expressly or impliedly. Section 5M of the Civil Liability Act in terms (“A person (the defendant) does not owe a duty of care to another person who engages in a recreational activity (the plaintiff)...”) negates a duty of care where the risk of a recreational activity was the subject of a risk warning. On the other hand, statutory provisions (a) limiting the circumstances in which a mentally ill person could be detained, and (b) obliging the reporting of suspicions of child abuse, did not speak expressly to the existence of a duty of care, but nonetheless were found by implication to be inconsistent with duties to take reasonable care (a) before releasing a mentally ill person into the community and (b) before reporting a person suspected of child abuse: Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44 at [30]-[31] and Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at [62].

6. [49]

   Rather, in a case such as the present, where statute neither expressly nor impliedly speaks to a duty of care, a more abstract notion of incongruity or incoherence between the posited duty of care and the statutory purpose is involved.

7. [50]

   Because the analysis in a case such as the present turns upon an identification of statutory purpose, in contrast with some express or implied legislative intention to qualify or alter the common law duty, there is necessarily an element of imprecision. To conclude that a statute evinces a purpose which is incoherent with a posited duty of care will commonly be more contestable than construing a statute and finding express or implied inconsistency with a posited duty of care. It recalls other ways in which the indirect effects of statutes are contentious. One example may be seen in the cases where a statute is said to give rise to a civil action for breach of statute, in relation to which Dixon J encapsulated the problem in O’Connor v S P Bray Ltd (1937) 56 CLR 464 at 477-478; [1937] HCA 18 when stating that the difficulty was that “the legislature has in fact expressed no intention upon the subject”. Another area where much the same difficulty arises is in the analysis of the quality of an act done in breach of a condition regulating the exercise of a statutory power. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [91] it was said:

8. [51]

   None of that is to say that the principles turn upon judicial idiosyncrasy or moral condemnation. Miller v Miller emphasised that care must be taken lest the focus upon legislative intention be “conjured up by judges to give effect to their own ideas of policy and then ‘imputed’ to the legislature”: at [29], citing Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405; [1967] HCA 31.

9. [52]

   Finally, adding to the complexity and contestability in this appeal, the statutory purpose falls to be discerned from two separate (albeit related) statutory regimes: the Drug Misuse and Trafficking Act and the Road Transport Act.

10. [53]

    These reasons may be more readily understood if I first summarise the main steps. I think the essential analysis is as follows.

    1. (1)

       First, the question is whether the common law duty on which the plaintiff sues is incongruous with criminal legislation. That requires a nuanced analysis of the relevant statutory provisions, and in particular their purpose, in the way explained in Miller v Miller. It is wrong to proceed on the basis that the “common law” prescribes a single test.

    2. (2)

       Secondly, no differently from any other element of liability, statute may modify or displace what would otherwise be the rule at common law. In New South Wales, that requires considering whether s 54 of the Civil Liability Act has wholly or partially displaced or altered the rules stated in Miller v Miller. I have concluded that s 54 does not relevantly displace the rules in Miller v Miller, nor does it relevantly alter them.

    3. (3)

       Thirdly, the rules governing joint criminal enterprise in New South Wales as stated in IL v The Queen (2017) 262 CLR 268; [2017] HCA 27 attribute to the participants in a joint criminal enterprise the conduct of other participants which is in the course of or incidental to that enterprise. Here, where the joint criminal enterprise was acquiring illicit drugs using a motor vehicle, the driving of the motor vehicle was attributed to the participants, including Ms Bevan. In particular, not only did Mr Coolahan commit the offence created by s 111 of the Road Transport Act of driving a vehicle with a prescribed illicit drug in his system, so too did Ms Bevan.

    4. (4)

       Fourthly, the issue is whether the statutory purpose evinced by ss 111 and 112 of the Road Transport Act is incongruous with the driver owing a common law duty to take reasonable care for his passenger and co-participant in the offences created by those sections. I conclude that it is. In particular, the offence created by s 111 reflects a purpose to punish and deter driving after ingesting a prescribed illicit drug (including crystal methamphetamine). That statutory purpose is not consistent with one co-offender, Mr Coolahan, owing a duty to another co-offender to take reasonable care. The statutory purpose of deterring and punishing driving after ingesting methamphetamine is to prevent driving altogether, and is incongruous with the posited duty to take reasonable care to a co-offender while driving.

The test to be applied in determining the availability of an illegality defence

1. [54]

   Miller v Miller restated the circumstances when a duty of care which would otherwise exist at general law is not available by reason of the plaintiff’s illegality. The entirety of the analysis presupposes that the illegality is sourced in statute. The relationship between tortious liability and conduct which is an offence at common law would require a very different analysis, and is not addressed by these reasons.

2. [55]

   The analysis in the joint judgment commenced with a fundamental issue at [16]:

3. [56]

   Their Honours thereby framed the issue as one of incongruity, which is an aspect of the coherence of the law. After a lengthy discussion of the divergent approaches to comparable problems (in tort, contract and trusts), their Honours returned to the issue at [73]-[74]:

4. [57]

   Miller v Miller does not supply a single “test” applicable in cases where a joint criminal enterprise is alleged as a defence to an action for negligence. Rather, the test turns upon the particular statute and the particular statutory purpose.

5. [58]

   One submission advanced by the respondents was that the question was whether it was incongruous to permit a person in the position of Ms Bevan to recover damages, if her conduct amounted to an offence under the Drug Misuse and Trafficking Act. There are two aspects of that submission with which I disagree.

6. [59]

   First, the passages from Miller v Miller reproduced above make it clear that the question is addressed at the level of duty, not the outcome of the legal analysis at the level of breach, causation and damages in any particular case. The criminal law prohibits certain conduct, with the sanction of punishment at the hands of the State. The civil law likewise prohibits certain conduct, actionable on the part of (relevantly) a person who has suffered loss. Although some caution must attend the distinction between criminal and civil proceedings (cf Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161; [2003] HCA 49 at [114]) their closest intersection may be seen in the imposition of both criminal and civil norms of conduct. In Miller v Miller, the incongruity lay in the fact that the parties were complicit in stealing and driving the stolen vehicle, contrary to a criminal law which proscribed doing precisely that, while the plaintiff then claimed that the defendant owed a civil duty to take reasonable care while driving the stolen vehicle. If there is inconsistency or contrariety or a lack of coherence, it will best be seen at the level of duty.

7. [60]

   Another way of putting this is that the absence of duty is a question of law, which arises whether or not the factual matters of breach and causation and damages are made out.

8. [61]

   But that does not mean that the facts are irrelevant. The nature and extent of the joint criminal enterprise will determine whether there is an incongruity between the duty to take reasonable care and the criminal law. Take for example facts slightly different from those of this appeal. Suppose driver and passenger agree to travel by motor vehicle to acquire an ice pipe, and to return to their premises to consume methamphetamine with it. The conduct of both is a serious criminal offence. However, as presently advised I think the driver nonetheless owes the passenger a duty to take reasonable care while driving. As presently advised, I see no incongruity between mere possession of an item of equipment used to administer illicit drugs and a duty to take care while driving. Possessing the ice pipe does not of itself affect driving, and the purpose underlying the statute criminalising doing so is not incongruous with the possessor’s duty to take reasonable care to a passenger who is complicit in the offence.

9. [62]

   The point of the foregoing is that while the incongruity does not turn on the facts going to breach and causation and injury, it may well turn on the scope of the joint criminal enterprise.

10. [63]

    Secondly, the High Court expressly eschewed reasoning based on notions of deterrence or disapproval, to the effect whether a drug user like Ms Bevan should be entitled to sue for damages occasioned in the course of her unlawful enterprise. This only “masks” the proper identification of the matters which displace any duty of care (cf Miller v Miller at [16]). The insistence on “incongruity”, or its synonyms “contrariety” or “lack of coherence”, requires close attention to the statute to determine whether the posited duty to take reasonable care can be reconciled with the criminal prohibition.

11. [64]

    As much may be seen in the application of that test to the facts in Miller v Miller. The joint judgment continued at [101]:

The role of s 54 of the Civil Liability Act

1. [65]

   A second reason for paying regard to statute, and at the outset, in the present appeal, is s 54 of the Civil Liability Act. Miller v Miller, a Western Australian appeal where there was no equivalent to s 54, explained how the common law subtracts from what otherwise would be the scope of a duty to take reasonable care, insofar as the posited duty would be inconsistent with criminal statutes. But what if a statute speaks directly to the circumstances in which a duty of care is owed? The answer is that regard must be had to that statute.

2. [66]

   That result is easily derived from first principle. Statute can always modify or abrogate common law. The rules governing the effect of illegality upon a claim in tort as stated in Miller v Miller – which operate to diminish the scope of a duty of care in the face of an inconsistent or incoherent criminal statute – are themselves rules of common law, which may be modified by statute. Section 54 is such a statute.

3. [67]

   As much was confirmed by what the High Court said in Miller v Miller at [6]:

4. [68]

   Both by that paragraph’s reference to “statutory provisions intended to regulate recovery of damages” in the paragraph itself and also by the reference in the footnote to the very provision, the joint judgment was stating that in a jurisdiction such as New South Wales, regard must be had to s 54 at the outset. I do not accept the respondents’ submission that [6] of Miller v Miller merely flagged for determination in another case how, if at all, s 54 applied.

5. [69]

   None of the foregoing denies that there are large questions both as to the proper construction of s 54 and the role it plays in modifying the principles in Miller v Miller.

Section 54 and its availability in this appeal

1. [70]

   Section 54 is as follows:

2. [71]

   Section 54 of the Civil Liability Act is within Part 7 of the Act. It therefore applies to motor vehicle accidents by reason of s 3B(1)(e) read with s 3B(2)(g) of that Act.

3. [72]

   The respondents submitted that s 54 had no application to this case. They maintained that s 54 is a prohibition upon a court awarding damages, which would only be reached if and when there had been findings of duty, breach and causation. Somewhat unexpectedly, that coincided with the appellant’s primary submission in this Court. When the Court first raised s 54, senior counsel’s response was, “It says nothing about duty. We would say that the effect of s 54 comes in after a duty has been found.” However, grounds 14 and 15 of the notice of appeal, elaborated at the conclusion of Ms Bevan’s oral address, were squarely directed to error in the primary judge’s failure to hold that s 54 was relevant and determinative of this aspect of the defence.

4. [73]

   The trial judge received less assistance on this threshold point than she was entitled. There was no reply to the defence of joint criminal enterprise, which is to be regretted, in circumstances where the real issues in the litigation arose on the defence (the same complaint was made in Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241; [2008] NSWCA 204 at [113]).

The construction of s 54

1. [74]

   The starting point is s 54. The section is far from straightforward. The ways in which the trial and the appeal were conducted have not favoured submissions which shed light upon it.

2. [75]

   Perhaps the most obvious distinction may be seen in subs (3) which introduces the notion of a “serious offence”. Both the prohibition in s 54(1) upon awarding damages and the non-application provision in s 54(2) mention that defined term. The prohibition in s 54(1) only applies where the plaintiff has himself or herself committed a “serious offence” which has materially contributed to the death, injury or damage, or risk thereof. However, s 54(2) carves out an area within which that prohibition does not apply, namely, where the defendant is sued for conduct which constitutes an offence. Subsection (2) makes it plain that, in contrast with subs (1), any offence, whether or not a serious offence, is sufficient.

3. [76]

   It follows that where the plaintiff has committed a serious offence which contributes materially to his or her death, injury or damage, then no damages may be awarded, unless the plaintiff is suing a defendant for conduct which caused the damage and which was an offence.

4. [77]

   Another aspect of the complexity of s 54 may be seen in the different degrees of causal connection between the criminal conduct on the part of the plaintiff and the defendant. The defendant’s conduct giving rise to civil liability must itself be (“constitutes”) an offence. On the other hand, the plaintiff’s criminal conduct must have “contributed materially” to the injury for which the plaintiff sues, or at least to the risk of such injury, but need only have occurred “at the time of” or “following” the plaintiff’s injury (and therefore, no doubt, the defendant’s conduct).

5. [78]

   An example might make this clearer. Suppose the plaintiff and defendant engage in a joint criminal enterprise to commit a robbery. The defendant is the getaway driver, the plaintiff enters the premises and takes valuables. Suppose the plaintiff is injured in the course of the robbery, and the pair flee to a safe house, where the defendant’s negligent provision of medical assistance causes injury. Section 54 would preclude the plaintiff being awarded damages against the defendant. The plaintiff’s injury at the hands of the defendant occurred “following” the robbery, which was a “serious offence” such that s 54(1) applied. Subsection 54(2) does not disapply subs (1), because the conduct of the defendant in negligently providing medical assistance is not conduct which constitutes an offence. It falls outside the scope of the joint criminal enterprise.

6. [79]

   Without definitively construing s 54, it is clear that s 54 makes elaborate and nuanced provision for cases where both plaintiffs and defendants have committed offences which are closely connected with a claimed civil liability. This is exactly the area in which the “common law” defence of joint criminal enterprise applies. This gives rise to the threshold question raised in grounds 14 and 15 of the appeal: given the elaborate complexity of s 54, why would s 54 not govern this area?

7. [80]

   I was initially attracted to the submission that s 54 was exhaustive, precluding the operation of the principles stated in Miller v Miller. The force of this submission lay in the moderately elaborate and detailed provision in s 54, and the expressio unius implication that if a plaintiff had committed an offence which fell short of being a “serious offence” then s 54 impliedly confirmed the plaintiff’s ability to rely on a duty of care. I also had in mind the analysis in cases such as Ffrost v Stevenson (1937) 58 CLR 528; [1937] HCA 41. However, on reflection, I have reached the opposite conclusion.

8. [81]

   The first difficulty with acceptance of Ms Bevan’s submission is that, as the example above illustrates, s 54 becomes somewhat awkward in cases of joint criminal enterprise, where it can be said that both the plaintiff and the defendant committed the same criminal conduct. It would seem to be the case that the carve-out in subs (2) in those cases is likely wholly to swallow the prohibition upon ordering damages in subs (1). To vary the example given above, s 54 would not apply to the negligent driving of the defendant getaway driver while fleeing from the scene; the defendant’s negligent driving is part of the joint criminal enterprise and thereby engages s 54(2). The text is clear, the legislative purpose less so. It may be, as Basten JA suggests, that s 54 has a very small role in relation to joint criminal enterprise. That said, subs (2) merely prevents the disabling operation of subs (1). I do not regard subs (2) as evincing some purpose which bears upon other ways in which a defendant is liable.

9. [82]

   Secondly, the note which follows subs (2) proceeds on the basis that even if the prohibition in s 54(1) is inapplicable, because the defendant’s conduct constituted an offence, then ss 52 and 53 might nonetheless prevent or limit the recovery of damages. The note does not form part of the Act, by reason of s 4(3). Even so, regard may be had to it in ascertaining the meaning of s 54, in accordance with s 34 of the Interpretation Act 1987 (NSW).

10. [83]

    The note makes it clear that the purpose of s 54 cannot be to exhaust the circumstances when a plaintiff may be unable to recover damages by reason of his or her criminal conduct. Sections 52 and 53 are the most obvious further obstacles to a plaintiff recovering damages. Those provisions are directed to self-defence. They immediately precede s 54, and are found in the same Part of the statute, which is titled “Self-defence and recovery by criminals”. There is no good reason to conclude that ss 52 and 53 together with s 54 exhaust the class of cases where a plaintiff may not recover damages.

11. [84]

    A third point relied on by the respondents is the form of s 54, as a prohibition upon the award of damages. As a matter of form, the prohibition only bites after duty (and breach and causation and any other defences) have been determined. It was, in the respondents’ submission, a “disentitling provision”, which could only be engaged after first, the plaintiff had established a duty of care, which had been breached and which had caused loss. On that basis, so it was put, s 54 could be put to one side until and unless the joint criminal enterprise defence had failed.

12. [85]

    That submission is strengthened by the emphasis given by the High Court in Miller v Miller at [74] to the analysis of duty. However, it nonetheless strikes me as being unduly technical. It does not much matter to a plaintiff nor a defendant – nor to the coherence of the law – whether no duty is owed or, alternatively, no damages may be awarded. Further, if s 54 does not exclude the principles articulated in Miller v Miller, the court will be required to apply a test based on incongruity, which will demand attention to substance rather than form. I would doubt that the form s 54 takes much bears on whether a defence of joint criminal enterprise is excluded by it.

13. [86]

    Fourthly, the respondents pointed to s 3A(1), which provides:

14. [87]

    Section 3A has been relied on to conclude that s 52 leaves in place the common law test for self-defence: State of New South Wales v McMaster (2015) 91 NSWLR 666; [2015] NSWCA 228 at [210]. It was there noted that the question arose in the course of the hearing, “somewhat in passing”. More recently (and after the present appeal was heard), doubts have been expressed about this aspect of McMaster in Brighten v Traino [2019] NSWCA 168 at [27].

15. [88]

    I would not accept that s 3A preserves all rules of common law which give “protection from civil liability”. Common law is overridden by inconsistent statute. Statutory language to the effect that one provision “does not limit” some other rule or principle is directed to fending off arguments based on implication. The idea is that the provision must not be construed so as to impliedly limit the other rule or principle. As expressed by Mason J in Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 679; [1979] HCA 26, the words operate “to negative the restrictive implication which might otherwise have been derived from the presence of the specific power”.

16. [89]

    For example, there is no reason to doubt that insofar as damages for loss of earning capacity will not be awarded in respect of losses which are intimately connected with unlawful conduct (such as the earnings of an illegal bookmaker in Meadows v Ferguson [1961] VR 594), that rule is not limited by s 54.

17. [90]

    Commonly, a statute which provides that it “does not limit” is directed to other enacted law. In such a case, the section has the potential to alter the ordinary approach to statutory construction, tending to deny an implication that the latter provision should be construed narrowly. A statute may also provide that it “does not limit” the common law. Such provisions are also fairly common: see for example s 6(2) of the Defamation Act 2005 (NSW) and s 9 of the Evidence Act 1995 (NSW). Both those provisions conclude with a qualification which is absent from s 3A: “except to the extent that this Act provides otherwise”. But the qualification is unnecessary. It is difficult to see how s 3A could undo the express operation of other provisions in the Civil Liability Act. Section 3A is framed in terms that it does not “limit” the protection from liability which is elsewhere sourced. The verb “limit” directs attention to fending off a possible narrowing approach to the other protection from liability; it does not readily speak to a case where the other protection from liability is supplanted or superseded, as opposed to operating more narrowly.

18. [91]

    Further, s 3A cannot be determinative. A section such as s 3A cannot of itself preclude the balance of the statute being regarded as laying down “a set of principles to cover the relevant field to the exclusion of the common law principles previously applicable”: see R v Ellis (2003) 58 NSWLR 700; [2003] NSWCCA 319 at [74], which was endorsed in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [35].

19. [92]

    Although I consider that neither the form of s 54 nor s 3A is determinative, I have concluded by reason of its terms, the note under s 54(2) and the roles performed by ss 52 and 53 that s 54 is not exhaustive. Grounds 14 and 15 are not made out. It is necessary then to see whether by reason of the principles in Miller v Miller no duty of care was owed by Mr Coolahan to Ms Bevan.

The relevant offence-creating statutes

1. [93]

   Sections 10, 11 and 12 of the Drug Misuse and Trafficking Act 1985 (NSW) provide as follows:

2. [94]

   The respondents submitted that Miller v Miller ought not to be narrowly applied, and that one purpose of s 10 and s 11 of the Drug Misuse and Trafficking Act was the prevention of dangerous driving. They submitted that it was reasonable to infer that the Legislature had many purposes in mind when it proscribed the possession and use of prohibited drugs including dealing with “the type of dangerous and reckless behaviour common amongst people who use prohibited drugs because their judgment is so affected.”

3. [95]

   The pleaded joint criminal enterprise did not refer to ss 111 and 112 of the Road Transport Act in terms. Nonetheless, as noted above they were in play at trial and were clearly engaged by the pleaded joint criminal enterprise. Those sections relevantly provide:

4. [96]

   Section 111 criminalises a driver of a motor vehicle who has any prescribed illicit drug in his or her body. It does not require the prosecution to prove that the driver was affected by the prescribed illicit drug. “Prescribed illicit drug” is defined by reference to four particular drugs, including two which had been used by Ms Bevan and Mr Coolahan, methylamphetamine and delta-9-tetrahydrocannabinol (also known as THC), the active element in cannabis. It was submitted that s 111 and s 112 demonstrated that driving under the influence of a prescribed illicit drug was a “probable consequence” of possessing an illicit drug. I shall return to this below.

5. [97]

   It was then submitted that the principles expressed in Miller v Miller could not be applied to an analysis of the Drug Misuse and Trafficking Act without proper consideration of the facts. “The incongruency of which the High Court speaks must be found in the facts and we say it is found in the facts here”. The respondents relied on the facts that (1) the purchase of drugs in contravention of s 10 could not have occurred without driving the vehicle, (2) no member of the group could have driven the vehicle lawfully as everyone in that vehicle was affected by drugs and (3) the risk of the vehicle being driven dangerously would have been obvious to Ms Bevan. Under those circumstances there was said to be an incongruity in Ms Bevan asserting that Mr Coolahan owed her a duty of care when she “willingly exposed herself to the risks involved in travelling as a passenger in a vehicle driven by the First Respondent, where the sole purposes of the journey was to acquire and possess a prohibited drug”.

6. [98]

   In most cases only a single person – the driver – can commit the offences under ss 111 and 112 of the Road Transport Act. But the criminal law attributes the acts of one person to others who have a common criminal purpose, where the first person’s acts are in the course of, or incidental to, carrying out the common criminal purpose. That the doctrine of joint criminal enterprise involves the attribution of one party’s acts, as opposed to that party’s criminal liability, was established by Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 and confirmed in IL v The Queen (2017) 262 CLR 268; [2017] HCA 27 at [29]-[40], [65]-[66], [103]-[106] and [149]-[153]. In this way, a passenger who participates in a joint criminal enterprise can commit a driving offence. Such offending is not as an accessory before or after the fact. It is as a primary offender.

7. [99]

   Thus, in Miller v Miller itself, where the venture between the two parties was described at [92] as “a venture to use the vehicle illegally”, the High Court said at [93]:

8. [100]

   The criminality of the passenger, by reason of the acts attributed to the passenger’s participation in the joint criminal enterprise, and the fact that dangerous driving was a “probable consequence” (to which I shall return below), was central to the reasoning on incongruity. The High Court explained why at [93]:

Three differences between Miller v Miller and the present appeal

1. [101]

   In order to apply the reasoning in Miller v Miller to the facts of the present appeal, three differences must be noticed. First, the joint criminal enterprise was different – to buy and consume illicit drugs, rather than to use a car illegally. Secondly, the relevant criminal statutes are different, and the analysis of statutory purpose is different. Thirdly, and contrary to a submission made by the respondents, it is necessary to bear in mind the different ways in which joint criminal enterprises are governed in Western Australia and New South Wales.

2. [102]

   The denial of a duty of care in Miller v Miller rested upon the claim that the parties had engaged in a joint criminal enterprise of illegally using a motor car without the consent of the owner, contrary to s 371A of The Criminal Code (WA). The High Court noted at [78] that s 371A provided, in effect, that the person who illegally takes or uses a motor vehicle “is said to steal that motor vehicle”, and that s 378 imposed a punishment for theft, if no other punishment was provided, as imprisonment for seven years. However, s 378(2) provided that in the case of stolen motor vehicles, if the offender committed the offences of reckless driving or dangerous driving, then the punishment for the illegal taking or use of the motor vehicle was imprisonment for eight years. The High Court added:

3. [103]

   The different penalties, reinforced by the legislative history, sustained the conclusion that the legislation recognised the association between theft of a vehicle and driving it dangerously:

4. [104]

   Hence the High Court concluded at [89] that:

5. [105]

   The statutory regime also sustained the inference that the reckless driving of stolen motor vehicles was the “probable consequence” of stealing motor vehicles. That was significant because of yet another statutory consideration. Under the WA Criminal Code, s 8(1) provided that where two or more persons formed a common intention to prosecute an unlawful purpose in conjunction with one another, and when doing so an offence was committed “of such a nature that its commission was a probable consequence of the prosecution of such purpose”, then each was deemed to have committed that offence. It followed that a purpose of criminalising the stealing of motor vehicles was to prevent and criminalise driving stolen vehicles being driven recklessly. The joint judgment noted at [88] that “[a]n association between the illegal use of a motor vehicle and driving in a manner that was reckless or dangerous was reflected by the introduction of aggravated forms of the offence of illegal use.”

6. [106]

   In New South Wales (putting to one side cases of extended joint criminal enterprise) the question is slightly different. There is no equivalent to s 8. Acts of one participant in a joint criminal enterprise which are in the course of, or incidental to, carrying out that enterprise are attributed to other participants in the enterprise. The narrower view that the doctrine applies only to an act which constitutes or is part of the actus reus was preferred by Bell and Nettle JJ but was rejected by Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ in IL v The Queen.

Application to the facts of this appeal

1. [107]

   The offences contrary to the Drug Misuse and Trafficking Act do not of themselves evince any statutory purpose incongruous with a driver owing a duty of care to a passenger.

2. [108]

   However, it is also necessary, given that the joint criminal enterprise involved the driving of a motor vehicle, to have regard to the particular offences under the Road Transport Act. There is no reason in principle why regard may not be had to the purpose evinced by two statutes in assessing incongruity, especially where the statutes are linked, in that the possession or use of some of the illicit drugs which give rise to the offence under the Drug Misuse and Trafficking Act are “prescribed illicit drugs” for the purposes of s 111 of the Road Transport Act and are apt to give rise to the offence created by s 112 of that Act.

3. [109]

   Section 117(1) of the Road Transport Act prohibits driving a motor vehicle on a road negligently, and s 117(2) prohibits driving a motor vehicle on a road “furiously, recklessly or at a speed or in a manner dangerous to the public”. Sections 111 and 112 operate at an anterior stage. Section 112 recognises that persons affected by drugs are more likely to drive dangerously, and seeks to penalise and deter such behaviour, even if the driving falls short of satisfying the offences created by s 117. Section 111 operates at a yet earlier stage, and more bluntly. It imposes a lesser penalty upon persons who have one of four “prescribed illicit drugs” present in their oral fluid, blood or urine. The four drugs are delta-9-tetrahydrocannabinol (also known as THC), methylamphetamine (also known as speed), 3,4-methylenedioxy-methylamphetamine (also known as ecstasy) and cocaine. All four are illicit drugs. The offence is committed if a person with one of those drugs in his or her system drives a motor vehicle. It is no element of the offence that the person be affected by the drug, let alone that he or she is driving negligently, recklessly, furiously or dangerously.

4. [110]

   Section 111 singles out for special attention four relatively prevalent illicit drugs, and imposes an additional offence of driving with those drugs in a person’s system. It reflects an appreciation that persons who have consumed those drugs are likely to drive, and should be deterred from doing so and punished if they do, even if their driving is not shown to have been affected by the drug.

5. [111]

   On the findings of the primary judge, Ms Bevan participated in a joint criminal enterprise to acquire illicit drugs which involved the use of a motor vehicle. The facts as found by the primary judge that Ms Bevan was the “ringleader”, that the drugs were obtained on the strength of Ms Bevan’s brother’s iPod, and consumed using Ms Bevan’s ice pipe, are not presently relevant to the legal analysis relevant to the denial of a duty of care owed to Ms Bevan by Mr Coolahan.

6. [112]

   The driving of Mr O’Connell’s vehicle, first by Mr O’Connell, and then by Mr Coolahan, occurred in the course of carrying out that criminal purpose. Mr Coolahan’s driving of the vehicle after consuming crystal methamphetamine was therefore attributed to Ms Bevan in accordance with Osland and IL.

7. [113]

   Mr Coolahan was charged with an offence contrary to s 111 of the Road Transport Act. In principle Ms Bevan could also have been charged with that offence (however unlikely that might be in practice), on the basis of her participation in a joint criminal enterprise of which driving a vehicle having consumed prescribed illicit drugs formed part. In point of law, she and he did not merely commit the offences relating to the acquisition of illicit drugs. Because his driving occurred in the course of their criminal enterprise, they also both committed the offences created by the Road Transport Act.

8. [114]

   The critical reasoning identifying the incongruity which displaced a duty to take care in Miller v Miller may be seen at [101]:

9. [115]

   The WA Criminal Code made specific provision for the offence of driving dangerously having “stolen” a car. Section 111 of the Road Transport Act is a per se prohibition against driving a car, saying nothing about the element of dangerousness. The differentiation in the offences created by ss 111 and 112, both of which may overlap with the offence created by s 12 of the Drug Misuse and Trafficking Act of administering a prohibited drug to oneself, evinces a purpose that those who have ingested four specific illicit drugs (defined in s 4 and including methamphetamine), must not drive. That is so whether or not the person is shown to have been affected by the drug. To paraphrase [101] of Miller v Miller, the offence of driving a motor vehicle while an illicit drug is present in a person’s body is dealt with as it is because of its association with reckless and dangerous driving. Its purpose is to deter and punish driving after ingesting, inter alia, crystal methamphetamine. Section 112 confirms the position.

10. [116]

    Mr Coolahan’s acts of driving the motor vehicle after ingesting methamphetamine occurred in the course of the young peoples’ joint criminal enterprise, and would be attributed to Ms Bevan for the purposes of the criminal law. To adapt to the facts of the present appeal what was said in Miller v Miller at [93]-[94] (altering “dangerous driving” to “driving with a prescribed illicit drug present” and “illegal use of the vehicle” to “illegal possession of illicit drugs”):

11. [117]

    Consistently with Miller v Miller, where two people are complicit in the offence created by s 111, the statutory purpose is not consistent with an offender owing a duty to a co-offender to take reasonable care while driving her. The statutory purpose is that neither should be driving at all.

12. [118]

    It will be seen that that conclusion follows from (a) the fact that the driving occurred in the course of a joint criminal enterprise to acquire illicit drugs, (b) the attribution to participants in the joint criminal enterprise of conduct which is in the course of or incidental to that enterprise and (c) identifying a purpose of the Road Transport Act of deterring from driving and punishing persons who do drive, persons with illicit drugs in their systems.

13. [119]

    That result also coheres with the results reached in earlier cases, described in Miller v Miller under the heading “Common threads in the decided cases” at [71]:

14. [120]

    For those reasons, the main question argued on appeal, concerning the effect of illegality, is resolved favourably to the respondents.

Remaining issues on the appeal

1. [121]

   Ms Bevan also sought by her notice of appeal to raise a series of factual matters. She invited this Court to interfere with the findings of the primary judge as to the manner in which Mr Coolahan drove, as to Ms Bevan being the “ringleader, principal and instigator” of the journey, as to whether the collision was due to the driver being affected by drugs, and as to whether Ms Bevan was affected by drugs. She also alleged error by the primary judge in relation to the expert evidence concerning the effect of ice upon driving skills, to the effect that Mr Coolahan’s driving was impaired by the methamphetamine.

2. [122]

   These grounds in large measure sought to reprise submissions which had been rejected at trial. All the impugned findings were based on an evaluation of the testimonial evidence of the four young people in the vehicle. They may be dealt with compendiously, in light of the fact that Ms Bevan’s supplementary written submissions at trial commenced “It is conceded that all witnesses proved to be unreliable.” Much of Ms Bevan’s evidence was described as “implausible”, a conclusion which drew upon the inherent probabilities of the situation, the evidence of other witnesses, the documentary evidence as to her drug use and supply, and an assessment of her demeanour. No attempt was made in written or oral submissions to engage with the Fox v Percy limitations upon this Court’s review. Rather, what was done was to take the Court selectively to favourable passages of the transcript.

3. [123]

   The circumstances of this trial presented the primary judge with a difficult fact-finding task. But her Honour saw the witnesses give evidence, and no basis has been propounded to interfere with those findings. These grounds are not made out.

Contributory negligence

1. [124]

   In addition to the respondents’ cross-appeal that the primary judge’s assessment of 25% contributory negligence was too low, Ms Bevan by her amended notice of appeal maintained that it was manifestly excessive. That ground of her appeal turned upon overturning the factual findings as to whether Mr Coolahan’s driving was affected by drugs. But no basis has been made out for interfering with those findings.

2. [125]

   Returning to the cross-appeal, s 5R of the Civil Liability Act applied, by reason of s 3B(1)(e) and s 3B(2)(a). It was not suggested that anything turned on this for present purposes. Further, it was common ground that the primary judge had erred in at least one respect in her Honour’s (notional) assessment of contributory negligence. The primary judge found that Ms Bevan did not direct Mr Coolahan to slow down or stop driving, on the basis that (1) there was contradictory evidence as to who had asked the defendant to slow down, (2) even if such a request had been made, it was made “at best a few seconds before the crash” and (3) the request was for the defendant to drive more carefully and not to be let out: at [238]–[239].

3. [126]

   That finding was challenged by Ms Bevan, but there is no basis for this Court to interfere with it. However, the primary judge went on to disregard one particular of contributory negligence, which was that the plaintiff had not directed Mr Coolahan to slow down, on the basis that she was a mere passenger in the car, rather than its owner: at [262]. I respectfully disagree. True it is that Ms Bevan was not the owner of the car. That did not stand in the way of the Court having regard to her failure, on the findings of the primary judge, to do what she could to cause the driver to drive less unsafely. I did not understand Ms Bevan’s counsel ultimately to defend that element of the reasoning.

4. [127]

   All four individuals had ingested crystal methamphetamine that afternoon, and had driven in order to obtain more of the drug. Ms Bevan was found to be their “ringleader”. It was she who had paid for the illicit drugs. It was she who provided the pipe by which they were consumed. True it is that Ms Bevan did not own the car nor was she driving it, but she was in a real sense the cause of the expedition to acquire more drugs. Senior counsel for the respondents proposed a finding of 50% contributory negligence, stating that “50% is frankly a finding that would err in generosity to the appellant.” The point is academic in light of the failure of the appeal. However, if it arose, I would accept the respondents’ submission.

Orders

1. [128]

   The consequence is that the appeal should be dismissed. The cross-appeal should likewise be dismissed, although only because it does not arise. There is no reason of which I am aware for the appellant not paying the respondents’ costs. If there is a basis for a further or different order, application may be made in accordance with UCPR r 36.16.

2. [129]

   I propose the following orders:

3. [130]

   McCALLUM JA: I respectfully disagree with the conclusion reached by Basten and Leeming JJA as to the disposition of the appeal, for the following reasons. For simplicity, I will refer to the parties as plaintiff and defendants, as they were in the court below.

4. [131]

   Grounds 14 and 15 raise the issue whether the recovery of damages for personal injury suffered in circumstances where the plaintiff was acting illegally is regulated by s 54 of the Civil Liability Act to the exclusion of the common law defence of joint criminal enterprise. I understand it to be common ground that, if it is, the illegality of aspects of the plaintiff’s conduct in the present case would not preclude her from obtaining an award of damages having regard to the fact that the first defendant’s driving entailed a number of offences (to which he pleaded guilty): s 54(2).

5. [132]

   Justices Basten and Leeming have concluded that s 54 does not exclusively govern the field. It is not necessary for me to decide that question because I have reached a different conclusion in respect of the grounds concerning the common law defence (grounds 11 to 13). In my respectful opinion, while there was a sound basis for reducing the plaintiff’s damages on the grounds of contributory negligence, the defence of illegality was not established and the appeal must accordingly be allowed.

6. [133]

   It is important from the outset to note that Miller v Miller was a case involving the unlawful use of a stolen car. The use of the car was unlawful in itself and criminal responsibility for its use extended to every occupant, not just the driver. In that context, the Court made two preliminary observations. First, the inquiry as to the allocation of responsibility for injuries suffered by a plaintiff as a result of an act which is both a tort and an offence in which the plaintiff is complicit in some degree does not end with the conclusion that the plaintiff acted illegally: at [11]-[16]. The Court explained that “the central policy consideration at stake is the coherence of the law” and characterised the issue raised by a plaintiff’s illegal conduct as being “whether there is some relevant intersection between the law that made the plaintiff’s conduct unlawful and the legal principles that determine whether the plaintiff should have a cause of action in negligence against the defendant”. The second preliminary observation was that causation “alone” is not determinative: at [11] and [17]-[22].

7. [134]

   The issue was instead framed as one of incongruity, the proposition being that “it is incongruous for the law to provide that the driver should not be using the vehicle at all and yet say that, if the driver and another jointly undertake the crime of using a vehicle illegally, the driver owes the confederate a duty to use it carefully when neither should be using it at all”: at [73]. The Court noted at [54] and [72] that, contrary to previous authority, there is no complexity in identifying the content of any duty of care that might be owed in that circumstance; it is just that the recognition of a duty of care at all is incongruous with the purpose of the criminal prohibition and so must be denied in the interest of coherence.

8. [135]

   The joint judgment makes plain that the question of incongruity must be assessed with critical focus on the nature of the joint criminal venture “and what, if any, criminal responsibility the passenger may have for the manner of the confederate’s driving that is a cause of the passenger’s injury”: at [91].

9. [136]

   In two of the three earlier decisions of the Court considered in the joint judgment as being most directly in point, the position was similarly that the very use of the car was unlawful on the part of all occupants, no matter who drove, because it had been stolen: Smith v Jenkins (1970) 119 CLR 397; [1970] HCA 2 (discussed in Miller v Miller at [40]-[49]) and Gala v Preston (1991) 172 CLR 243; [1991] HCA 18 (discussed in Miller v Miller at [57]-[69]). By contrast, in the third case, Jackson v Harrison (1978) 138 CLR 438; [1978] HCA 17 (discussed in Miller v Miller at [50]-[56]), the use of the car was not in itself unlawful but the defendant driver was disqualified and the plaintiff was found to be a joint participant in the offence of driving whilst disqualified. A duty of care was found to be owed in that case.

10. [137]

    In seeking to draw together the common threads of those three earlier decisions, the Court noted (among other things) that the fact that the plaintiff and the defendant were both acting illegally when the plaintiff suffered injuries of which the defendant’s negligence was a cause and which would not have been suffered but for the plaintiff’s participation in the illegal act is not determinative: at [70].

11. [138]

    It was also said that, in the cases considering the liability of “one illegal user of the vehicle to another”, a critical consideration was the fact that the negligence had been committed in the performance of that joint venture.

12. [139]

    The present case was not a case of unlawful use of a stolen car; the owner (the second defendant) was in the car and may be taken to have consented to its use by the others. Accordingly, one of the two statutory purposes of the offence of taking and using a vehicle considered in Miller v Miller does not arise in the present case. The Court expressly acknowledged at [99] that the position might be different in the absence of that purpose. It does not necessarily follow that there was a relevant distinction in the present case; the point is to be mindful that there are different statutory purposes in play here.

13. [140]

    The focus of the alleged joint criminal enterprise in the present case was the acquisition and consumption of prohibited drugs. The joint enterprise was pleaded in the amended defence in the following terms:

14. [141]

    Those allegations made no reference to the use or driving of a car. The primary judge appears to have allowed the defendants to expand upon the pleaded case, describing their defence based on the written submissions as follows at [220] of the judgment:

15. [142]

    Framed in that way, the defendants’ case tended to invite the primary judge down the path of judging the plaintiff’s entitlement to recover damages on moral grounds. As the High Court explained in Miller v Miller at [16], that is not the test. The question whether a duty of care is owed does not stop at the point of observing that the plaintiff has committed an offence or behaved badly. The defendants’ submissions did not assist the primary judge with any honed analysis of the intersection between the joint criminal enterprise as pleaded and the first defendant’s (otherwise) admitted duty of care to the plaintiff arising from their relationship of driver and passenger.

16. [143]

    The critical task was to assess the measure of any criminal responsibility the plaintiff may have had for the manner of the defendant’s driving that caused her injuries. The defendants did not put their case on the basis that the plaintiff bore criminal responsibility for the first defendant’s driving. Rather, the defence proceeded on the untested assumption that, because all of the occupants of the car had consumed drugs, the use of the car was unlawful. That is incorrect, as a matter of law. The defendants’ reliance on the plaintiff’s use of the second defendant’s car “illegally” was misconceived, as was the concept of a “conspiracy to travel to procure ice”.

17. [144]

    The primary judge accepted the defendants’ contentions, finding at [226] that the plaintiff’s injury “had a direct connection with the crime, in that she and the other vehicle occupants were riding in a vehicle affected by drugs and for the purpose of obtaining more drugs for which the vehicle was needed”. Neither of those matters gave rise to criminal responsibility for the use of the car. It is not illegal to ride in a car whilst affected by prohibited drugs, as opposed to driving a car in that state. The illegality of a joint enterprise to obtain possession of more drugs did not turn on the use of the car; that would have been illegal if they had taken the bus.

18. [145]

    After setting out her understanding of the evidence of Dr Perl, the judge then concluded that “all occupants were affected by drugs and the recklessness of the first defendant which led to the accident is in part due to the use of drugs. In the circumstances, the facts of the case fall within the ambit of the common law defence”. For the reasons already indicated, in my respectful opinion that conclusion was misconceived, proceeding as it did on an acceptance of the misconceptions put forward by the defendants’ case.

19. [146]

    Justice Leeming has posed the question differently at [53(4)], by reference to the offences created by ss 111 and 112 of the Road Transport Act. His Honour considers whether the statutory purpose evinced by those provisions is incongruous with the driver owing a common law duty to take reasonable care for his passenger and co-participant in the offences created by that statute. His Honour holds that it would.

20. [147]

    I respectfully disagree that it is appropriate to proceed on that basis. While I accept that the provisions of the Road Transport Act were raised in the manner carefully summarised by Leeming JA at [41], the pleaded joint criminal enterprise did not include any allegation that the plaintiff was criminally responsible for the first defendant’s offence of driving the car with illicit substances present in his system. Had that allegation been properly pleaded, the case may have proceeded differently (or not proceeded at all). The proposition that the plaintiff was jointly liable for the driving offences raises complex questions. As a requirement of procedural fairness, she was entitled to due notice if that was to be an issue in the trial. The fact that the issues unfolded in a chaotic and organic way only serves to highlight the importance of that requirement.

21. [148]

    In my view, on the defence as pleaded, the plaintiff’s illegality was not such as to deny the existence of a duty of care. Even on the expanded case, the unlawful conduct specified (possessing and consuming ice, possessing an ice pipe and perhaps stealing her brother’s iPod) did not intersect with the manner of the first defendant’s driving. There was nothing unlawful in the plaintiff’s conduct in being a passenger in the car. The fact that she remained a passenger knowing that the driver had consumed drugs sounds in contributory negligence or assumption of risk but, not being unlawful, is not incongruous with the existence of a duty of care owed to her as a passenger. Assuming the parties were engaged in a joint criminal enterprise to possess prohibited drugs and administer those drugs to themselves, the use of the car was an incident of that enterprise but was not in itself unlawful. On the defence as pleaded, I would allow the appeal for those reasons.

22. [149]

    In case I am wrong in my analysis of what was properly in issue and litigated in the proceedings before the primary judge, it is appropriate to consider the alternative position. For this purpose I assume, without deciding, that the first defendant’s unlawful act of driving with an illicit substance in his system is to be attributed to the plaintiff in accordance with the principles endorsed in IL, as Basten and Leeming JJA would hold. Even in that case, I am not persuaded that it would follow that the existence of a duty of care must be denied. As already noted, that inquiry does not end with the fact that both the plaintiff and the defendant were acting illegally. The decision in Jackson v Harrison establishes that it does not even end with the fact that each bore criminal responsibility for the driver’s act of driving. I accept that the nature of the illegality in that case (driving whilst disqualified) had little if any connection with the manner of driving that caused the plaintiff’s injury. The connection is undoubtedly closer in the present case, where the joint enterprise included consuming drugs together before the first defendant drove. But the question of incongruity in the present case is more complex than in the case of a stolen car jointly used by driver and passenger.

23. [150]

    An important consideration in the Court’s conclusion as to incongruity in Miller v Miller was the combined legislative purpose in the case of offences concerning stolen motor vehicles (or “joyriding”, as it has been termed) of the protection of property interests and the promotion of road safety. The High Court said at [99] that s 371A “proscribes and punishes the taking and use of a vehicle illegally as it does because it recognises that, in a case where two or more persons form a common intention to prosecute that unlawful purpose, it is often a probable consequence of the commission of the crime that the driver will drive recklessly or dangerously”. In part, that is thought to be the case because of the likelihood of police pursuit.

24. [151]

    While on an application of the principles endorsed by the majority in IL the plaintiff could in theory be attributed with criminal responsibility for the first defendant’s act of driving with a prescribed illicit substance in his system, it would be exceptional for such a charge to be laid. That may reflect an acceptance of the proposition that the decision to drive in such a state and the manner of driving that might follow is peculiarly individual to the driver, whereas joyriding is of its nature a joint activity.

25. [152]

    In my view, it is not incongruous to recognise the existence of a duty of care owed by the first defendant as a driver to a passenger whose presence in the car as a passenger was not unlawful and whose complicity in the act of driving derives from an application of the legal construct of joint criminal enterprise. There is considerable overlap in this context between the denial of a duty of care and the defence of contributory negligence. To my mind, to deny the existence of a duty altogether, as opposed to reducing the victim’s damages for contributory negligence, is disproportionate to the degree of criminality involved where a passenger is criminally liable for the act of driving only on that constructive basis. It is also incongruous with the recognition in tort of the allocation of responsibility to drivers for their manner of driving.

26. [153]

    For those reasons, I would allow the appeal.

27. [154]

    It is accordingly necessary to address the issue of contributory negligence. On that issue, I agree with Leeming JA, for the reasons his Honour has stated.

28. [155]

    The orders I propose are:

    1. (1)

       Allow the appeal.

    2. (2)

       Allow the cross-appeal.

    3. (3)

       Set aside the judgment of the District Court and in lieu thereof enter judgment for the plaintiff in the amount of $242,500.

29. [156]

    Order that the respondents pay the appellant’s costs of the appeal.