Bevan v Coolahan

Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397; [1967] HCA 31 State of New South Wales v McMaster (2015) 91 NSWLR 666; [2015] NSWCA 228 Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 Texts Cited: A Fell, "The Concept of Coherence in Australian Private Law" (2018) 41 Melbourne University Law Review 1160 Category: Principal judgment Parties: Chloe Bevan (Appellant) Jake David Coolahan (First Respondent) Kurt John O'Connell (Second Respondent) Representation: Counsel: H Marshall SC, M Maxwell (Appellant) K Rewell SC, B Wilson (Respondents)

Solicitors: Gerard Malouf & Partners (Appellant) Hall & Wilcox Lawyers (Respondents) File Number(s): 2018/279522 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2018] NSWDC 410 Date of Decision: 31 August 2018 Before: Her Honour Judge Gibson DCJ File Number(s): 2013/369938

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

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. 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. 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. 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: "5. In response to paragraph 9 of the statement of claim the defendants [denied] that they owed the plaintiff a duty of care as the plaintiff and the first and second defendants were engaged in a joint illegal enterprise namely the purchasing or ingesting or possession of a prohibited drug under section 10 of the Drug Misuse and Trafficking Act and further the plaintiff had in her possession an item of equipment, namely an ice pipe, used for the administration of a prohibited drug namely ice."
3. 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. 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. 54 Criminals not to be awarded damages (1) A court is not to award damages in respect of liability to which this Part applies if the court is satisfied that: (a) the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and (b) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage. (2) This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned constitutes an offence (whether or not a serious offence). Note. Sections 52 and 53 can apply to prevent or limit recovery of damages even though the defendant's conduct constitutes an offence. (3) A serious offence is an offence punishable by imprisonment for 6 months or more. (4) This section does not affect the operation of the Felons (Civil Proceedings) Act 1981. (5) This section operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned.

Application of general law principle

1. The trial judge set out the joint illegal enterprise asserted by the defendants in the following terms: "[220] The defendants' claim is that the plaintiff and defendants jointly: (a) Conspired to travel to procure ice from the home of the drug dealer known to them as 'Crystal'; (b) Used the second defendant's vehicle illegally for this purpose, in that none of the persons in the vehicle [was] capable of driving the vehicle lawfully, all of them having already consumed significant quantities of drugs in Ms Davey's home; (c) Procured the ice in exchange for an iPod surreptitiously obtained by the plaintiff from her brother, and then jointly consumed part of it in the vehicle, by use of an illegal device known as an ice pipe; (d) Stored the remaining ice and ice pipe in the vehicle for the purpose of travelling to Ms Davey's house, for the purpose of further drug consumption at that residence …. [221] The defendants submit that an integral part of the joint illegal purpose was the illegal use of the vehicle, in that it was driven by drug-affected persons, contrary to law …. It is therefore incongruent to claim that either of the defendants owed a duty of care to the plaintiff, given their joint involvement in the illegal purposes set out above."
2. 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: "[226] The plaintiff's injury had a direct connection with the crime, in that she and the other vehicle occupants were riding in a vehicle while affected by drugs and for the purpose of obtaining more drugs, for which the vehicle was needed. The evidence of Dr Perl shows 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 those circumstances, the facts of the case fall within the ambit of the common law defence."
3. 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] "If the crime that is the object of the enterprise is committed while the agreement remains on foot, all the parties to the agreement are equally guilty, regardless of the part that each has played in the conduct that constitutes the actus reus. Each party is also guilty of any other crime (the incidental crime) committed by a co-venturer that is within the scope of the agreement (joint criminal enterprise liability). An incidental crime is within the scope of the agreement if the parties contemplate its commission as a possible incident of the execution of their agreement. Moreover, a party to a joint criminal enterprise who foresees, but does not agree to, the commission of the incidental crime in the course of carrying out the agreement and who, with that awareness, continues to participate in the enterprise is liable for the incidental offence ('extended joint criminal enterprise' liability)."

Conclusion

1. 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. 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. 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. 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. 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. 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.

The effect of illegality upon an action for negligence

1. 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. 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. 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: "whether vindication of those claims would have frustrated or defeated, or have been inconsistent with, the statutory purpose of the provisions of the Code relating to the issue of prescribed interests. The requirement of coherence in this area of the law is not satisfied by the mere exclusion of an implied legislative intention to render unenforceable a contract made in furtherance of a contravening purpose. Unenforceability flows from the application of the common law informed, inter alia, by the scope and purpose of the relevant statute."

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

1. 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. The analysis in the joint judgment commenced with a fundamental issue at [16]: "the issue that is presented by observing that a plaintiff was acting illegally when injured as a result of the defendant's negligence is 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 for negligence against the defendant. Ultimately, the question is: would it be incongruous for the law to proscribe the plaintiff's conduct and yet allow recovery in negligence for damage suffered in the course, or as a result, of that unlawful conduct? Other questions, such as whether denial of liability will deter wrongdoers or advantage some at the expense of others, are neither helpful nor relevant. And likewise, resort to notions of moral outrage or judicial indignation serves only to mask the proper identification of what is said to produce the response and why the response could be warranted." [Emphasis added.]
3. 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]: "Why should courts not regulate the activities of the wrongdoers by requiring of the driver that he or she exercise reasonable care for the safety of other road users and any passenger in the vehicle, whether or not the passenger is complicit in the crime? As explained at the outset of these reasons, the answer must lie in whether 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. Incongruity (whether described by that word or as 'contrariety' or 'lack of coherence') will not be demonstrated or denied by bare assertion of the answer. More analysis is required. If a statute has been contravened, careful attention must be paid to the purposes of that statute. It will be by reference to the relevant statute, and identification of its purposes, that any incongruity, contrariety or lack of coherence denying the existence of a duty of care will be found. That is the path that was taken in Henwood. It is the same as the path that has been taken in relation to illegality in contract and trusts. The same path should be taken in cases where the plaintiff sues the defendant for damages for the negligent infliction of injury suffered in the course of, or as a result of, the pursuit of a joint illegal enterprise." [Emphasis added.]

The role of s 54 of the Civil Liability Act

1. 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. 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. As much was confirmed by what the High Court said in Miller v Miller at [6]: "In many Australian jurisdictions, these questions would require consideration of statutory provisions intended to regulate recovery of damages for personal injury suffered when the plaintiff was acting illegally (26). There being no relevant statutory provisions of this kind in Western Australia, the issues that arise in this matter turn upon the application of common law principles." Footnote 26 provides "See, eg, Civil Liability Act 2002 (NSW), s 54."
4. 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. 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. Section 54 is as follows: 54 Criminals not to be awarded damages (1) A court is not to award damages in respect of liability to which this Part applies if the court is satisfied that: (a) the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and (b) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage. (2) This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned constitutes an offence (whether or not a serious offence). Note. Sections 52 and 53 can apply to prevent or limit recovery of damages even though the defendant's conduct constitutes an offence. (3) A serious offence is an offence punishable by imprisonment for 6 months or more. (4) This section does not affect the operation of the Felons (Civil Proceedings) Act 1981. (5) This section operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned."
2. 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. 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. 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. 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. 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. 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. 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. 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.

The relevant offence-creating statutes

1. Sections 10, 11 and 12 of the Drug Misuse and Trafficking Act 1985 (NSW) provide as follows: "10 Possession of prohibited drugs (1) A person who has a prohibited drug in his or her possession is guilty of an offence. … 11 Possession of equipment for administration of prohibited drugs (1) A person who has in his or her possession any item of equipment for use in the administration of a prohibited drug is guilty of an offence. … 12 Self-administration of prohibited drugs (1) A person who administers or attempts to administer a prohibited drug to himself or herself is guilty of an offence. ..."
2. 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. 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: "111 Presence of certain drugs (other than alcohol) in oral fluid, blood or urine (cf STM Act, s 11B) (1) Presence of prescribed illicit drug in person's oral fluid, blood or urine A person must not, while there is present in the person's oral fluid, blood or urine any prescribed illicit drug: (a) drive a motor vehicle, or (b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or (c) if the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence) - occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle. Maximum penalty: 20 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence). … 112 Use or attempted use of a vehicle under the influence of alcohol or any other drug (cf STM Act, s 12) (1) A person must not, while under the influence of alcohol or any other drug: (a) drive a vehicle, or (b) occupy the driving seat of a vehicle and attempt to put the vehicle in motion, or (c) if the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence) - occupy the seat in or on a motor vehicle next to a learner driver who is driving the vehicle. Maximum penalty: (a) in the case of a first offence - 30 penalty units or imprisonment for 18 months, or both, or (b) in the case of a second or subsequent offence - 50 penalty units or imprisonment for 2 years, or both."

Three differences between Miller v Miller and the present appeal

1. 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. 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: "Thus, different maximum penalties were prescribed for the illegal taking or use of a motor vehicle and the illegal taking or use of a motor vehicle accompanied by one or other of two aggravating circumstances: driving in a manner that constitutes either the offence of reckless driving or the offence of dangerous driving."
3. 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: "An 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. These changes in the legislation reflected not only a rise in the incidence of illegal use of motor cars, but also a recognition of the dangers to life and limb that often attended the commission of that crime" (at [88]-[89]).
4. Hence the High Court concluded at [89] that: "The legislative purposes of s 371A are not confined to protection of property rights. They include the advancement of road safety."

Application to the facts of this appeal

1. 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. 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. 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. 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.

Remaining issues on the appeal

1. 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. 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. 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. 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. 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. 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. 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. 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. I propose the following orders:
3. Appeal dismissed.
4. Cross-appeal dismissed.
5. Appellant to pay the respondents' costs in this Court.
6. 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.
7. 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).
8. 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.
9. 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].

Endnotes

1. Bevan v Coolahan [2018] NSWDC 410 at [242].
2. [1954] AC 403 at 429 (Lord Asquith).
3. See generally, Smith v Jenkins (1970) 119 CLR 397; [1970] HCA 2.
4. Bevan at [213].
5. Bevan at [22(d)].
6. Smith v Jenkins at 403.
7. See, eg, the cases referred to by Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at 642-652; [1984] HCA 84.
8. (1938) 60 CLR 438; [1938] HCA 35.
9. Henwood at 448.
10. Henwood at 452-453 (Starke J) and 463 (Dixon and McTiernan JJ).
11. (2011) 242 CLR 446; [2011] HCA 9 at [22], [28] and [74].
12. Gala v Preston (1991) 172 CLR 243 at 278 per Dawson J; see also Smith v Jenkins (1970) 119 CLR 397 at 416-417 per Windeyer J.
13. See, for example, Civil Liability Act 2002 (NSW), s 54. (Footnote in original.)
14. (2008) 73 NSWLR 241; [2008] NSWCA 204 at [124] (Allsop P and Beazley JA agreeing).
15. (1989) 10 MVR 129.
16. (2016) 259 CLR 380; [2016] HCA 30 at [4] (French CJ, Kiefel, Bell, Nettle and Gordon JJ).
17. See also further references given by Leeming JA at [41].

Amendments 22 May 2020 - Coversheet: Cases cited: "Hunter Health District v McKenna" changed to "Hunter and New England Local Health District v McKenna". Coversheet: Cases cited: "(1937) 58 CLR 528; [1939] HCA 141" changed to "(1937) 58 CLR 528; [1937] HCA 41". [42]: "requirements in Miller v Miller" changed to "requirements as set out in Miller v Miller" in the quote. [42]: "The two-stage test required" changed to "The two-stage test requires" in the quote. [42]: "while engaged on a criminal enterprise" changed to "while on a criminal enterprise" in the quote. [48]: "Hunter Health District v McKenna" changed to "Hunter and New England Local Health District v McKenna". [80]: "(1937) 58 CLR 528; [1939] HCA 141" changed to "(1937) 58 CLR 528; [1937] HCA 41". [91]: "preclusion of the common law" changed to "exclusion of the common law". [96]: "methamphetamine" changed to "methylamphetamine". [108]: "prescribed drugs" changed to "prescribed illicit drugs". [116]: "driving with a prescribed illegal drug" changed to "driving with a prescribed illicit drug". 22 May 2020 - [26]: "noted that in that in Holland" changed to "noted that in Holland" [29]: "referred to activities and, identified" changed to "referred to activities, identified" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 May 2020