[1993] FCA 241; (1993) 40 FCR 303

Black CJ(1), Neaves(2), Burchett(2), Whitlam(2) and Beazley(1) JJ

Negligence - Essentials of action for negligence - proximity - whether driver and passenger acting jointly in furtherance of criminal conspiracy in proximate relationship - whether appropriate or feasible to define duty of care owed by one participant in joint unlawful activity to another - whether degree of hazard of unlawful activity relevant

Negligence - Proof of Negligence - whether finding that parties acting jointly in furtherance of criminal conspiracy shifts onus of proof of elements of negligence

Evidence - Admissibility and Relevance - Hearsay - whether evidence of intention of co-conspirator admissible and relevant to prove participation in conspiracy against plaintiff when combined with other circumstantial evidence - whether rule in Ahern v The Queen applies

Appeal and New Trial - Interference with discretion of court below - whether trial judge's assessment of witnesses' credibility generally invulnerable to review by appellate court - whether appellate court can draw different inferences from established facts

Words and Phrases - "ex turpi causa non oritur actio"

Australian Capital Territory Supreme Court Act 1933 (Cth) s 8AAA(2)(b)

Federal Court of Australia Act 1976 (Cth) s 25(4)

Fabre v Arenales (1992) 27 NSWLR 437

Gala v Preston [1991] HCA 18; (1991) 172 CLR 243

Westpac Banking Corporation v Spice (1990) 12 ATPR 51,386

Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283

Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87

Shosana Pty Ltd v 10th Catanae Pty Ltd (1987) 18 FCR 285

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

Piening v Wanless [1968] HCA 7; (1968) 117 CLR 498

The King and the Attorney-General of the Commonwealth v The Associated Northern Collieries (the Coal Vend case) [1911] HCA 73; (1911) 14 CLR 387

Holman v Johnson [1775] EngR 58; (1775) 1 Cowp 341

Counsel for the Appellant: Mr H.D. Sperling QC with Mr

R.R. Bartlett and Mr L.V. Gyles

Solicitors for the Appellant: Messrs Abbott Tout Russell Kennedy

Counsel for the Respondent: Mr A.J. Bellanto QC with

Ms A.J. Katzmann

Solicitors for the Respondent: Messrs Andrews

1. The appeal be allowed, with costs.

2. The order of the Supreme Court of the Australian Capital

Territory dismissing the appeal from the Master be set

aside and in lieu thereof it be ordered that:

(a) The appeal from the Master be allowed with costs;

(b) The order of the Master entering judgment for the

plaintiff be set aside; and

(c) Judgment be entered for the defendant, with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

BLACK CJ and BEAZLEY J This is an appeal from an order of the Full Court of the Supreme Court of the Australian Capital Territory dismissing an appeal from a decision of the Master in an action for damages for personal injuries. The Master found negligence on the part of the defendant (the appellant in this appeal) and awarded damages to the plaintiff (the respondent) for injuries he was found to have sustained when a car driven by the defendant, in which the plaintiff was a passenger, collided with the rear of another car driven either by one Wolfgang Reich or by his wife, Maureen Reich.

2. Being an appeal from the Master, the appeal to the Supreme Court was heard by three judges: Australian Capital Territory Supreme Court Act 1933, s.8AAA (2)(b). The appeal to this Court was heard by five judges by reason of s.25(4) of the Federal Court of Australia Act 1976.

3. The unusual circumstances of this case as revealed in the evidence before the Master are described in the reasons for judgment of Neaves, Burchett and Whitlam JJ, which we have had the advantage of reading. We agree with what their Honours have written about the participation of the respondent in a conspiracy to stage an apparent motor vehicle accident for the purpose of a fraudulent claim or claims for damages being made. For the reasons their Honours have given we consider that the evidence compelled the conclusion that the respondent was a party to such a conspiracy and that the accident in which he claimed to have suffered injury occurred whilst he was a passenger in the appellant's vehicle in furtherance of the conspiracy. In our view the critical matter is the presence of Mr Pangallo, whom the Master found to be the director of the conspiracy, in the car in which the respondent was a passenger. That car was driven by another conspirator, the appellant, Mr Italiano, in circumstances in which, in furtherance of the conspiracy, it was following another car in which proposed beneficiaries of the fraud, at least one of them a conspirator, were travelling.

4. The conclusion that the respondent should have been found to be a party to the conspiracy does not determine the outcome of the appeal because the Master concluded that, if it were necessary, he would find that the accident in which the respondent was injured was not the accident Mr Pangallo and Mr Reich were planning to stage in order that Mr and Mrs Reich could make a fraudulent claim for damages, but that it happened unexpectedly while they were returning to the Workers' Club in Canberra to discuss details of the proposed staged accident. The Master said:

"The negligence of Mr Italiano which gave rise to (the plaintiff's)

injuries was therefore not a step in the execution of any common

illegal purpose, even if Mr Barbaro had been a party to that

purpose."

5. The Full Court of the Supreme Court did not disturb that finding. Their Honours concluded that even if it be assumed, and without deciding the point, that the respondent had been a party to the conspiracy alleged, in the circumstances in which the accident actually occurred the appellant owed the respondent the ordinary duty of care.

6. In this Court the appellant argued that the Master should have found that the collision that actually occurred was indeed staged, in that an opportunity having presented itself to have a realistic accident when Mr Reich's car braked to avoid another car, that opportunity was taken. In any case, the appellant argued, whether or not the collision that occurred was intended, the circumstances were such that no duty of care was owed by the driver to his co-conspirator passengers.

7. In their joint reasons for judgment, Neaves, Burchett and Whitlam JJ explain why they consider that the Court should hold that the collision was deliberately engineered in pursuance of the conspiracy to which the respondent was a party. The issue is a difficult one to resolve but we have reached a different conclusion to their Honours and we would not disturb the Master's finding that the collision was not the one that was being planned.

8. We do not consider that, a conclusion having been reached that the respondent was a party to the conspiracy to stage an accident, there was an onus on him to show that the accident that occurred was not in fact staged. In Gala v Preston [1991] HCA 18; (1991) 172 CLR 243, Mason CJ, Deane, Gaudron and McHugh JJ said (at 254):

"...the onus lies on the party who asserts that, by reason of

special and exceptional facts, the ordinary relationship of a

driver towards a passenger is transformed into one which lacks the

requisite relationship of proximity to give rise to a relevant

duty of care.".

9. For reasons we explain later, we consider that the relationship between the parties should be determined in a situation such as was present in this case by reference to the stage in the joint criminal enterprise during which the relevant duty of care is claimed to have been present. On that footing, a finding that the parties were conspirators in a plan to have a staged accident would not of itself satisfy the onus of transforming the relationship into one that lacks the requisite relationship of proximity. In other words, we do not consider that if it were proved, for example, that a collision occurred when the parties were driving home together after having planned a collision that was to happen the next day, it should be concluded that the plaintiff bore an onus of proving more than that he was a passenger and suffered injuries of which the negligence of the driver was a cause. Proof that the parties were conspirators would show that in one sense their relationship was not ordinary, but it would depend upon the circumstances of the case whether that would be enough to show that their relationship in the relevant sense was no longer "ordinary" but had been transformed or whether the party asserting that the relationship had been transformed needed to prove additional facts.

10. The Master's finding that the collision was not engineered was based upon his general acceptance of the evidence of Mr Reich. He gave evidence that, having met in the vicinity of the Workers' Club, it was decided that those involved would drive around the area to look for a suitable place to have an accident and that his "understanding" of the events that were to follow was that they would come back to the Club and plan the accident. It is not clear precisely what was said about looking for a place to have an accident. The accident was to happen "if we could find a suitable place to have it".

11. Whilst it is true that language difficulties may well have made for the possibility of misunderstandings, they had not prevented Mr Reich from having a very clear understanding of the nature of the fraud that was to be perpetrated and of how it was to be carried out. As Mr Reich, together with his wife, were the proposed beneficiaries and the consenting occupants of the target vehicle, it is likely that the director of the conspiracy, Mr Pangallo, would have made it quite clear to Mr Reich that the accident might happen at any convenient time during the drive from the Workers' Club, had that been his intention before the two cars set out from near the Club. It is equally likely that Mr Reich would have wanted to have a clear understanding of what was to occur.

12. It must be said that it was very odd behaviour to drive around an area in the manner Mr Reich described, potentially attracting attention, with the object of returning to the same area to have a staged accident - an event almost certain to attract attention. But it is perhaps no more curious than having a deliberate accident whilst driving around the area in the manner described. At least if the parties returned later to have the staged accident at a selected place, some time would have elapsed between their potentially attention-attracting behaviour and the collision. In any event, we would not disturb the Master's findings on the basis that Mr Reich's understanding did not reflect the reality of the situation.

13. We would not rule out the possibility that Mr Pangallo might have seized an opportunity that presented itself to have a staged accident with an improved appearance of it being a real accident; but Mr Pangallo was the director, not the driver. If he seized the opportunity in the short time available and directed Mr Italiano to drive into the back of Mr Reich's vehicle, success required that Mr Italiano would obey in such a way as to have an accident of suitable severity, that is to say, a collision that would look like an accident but which would not in fact cause any significant injury, and preferably no injury at all. Whether Mr Italiano, not being experienced in such matters, would have done as Mr Pangallo directed is something about which we would not be at all confident. The possibility does however serve to highlight some aspects of the illegal activity in which the conspirators were engaged that are relevant to a consideration of the question whether, even if the collision was not shown to be staged, the action should have been dismissed if the conclusion were reached that the collision occurred whilst the parties were engaged in the furtherance of the conspiracy.

14. Before turning to that question, we should add that whilst the occurrence of a genuine accident when looking for a place to have a fake accident might at first sight seem to be remarkable coincidence, we do not think that it really is. The chances of a genuine collision between two particular vehicles must be significantly increased if one vehicle is closely following the other, on a route through suburban streets that is not planned, at dusk or in darkness, with the occupants of the vehicles looking for something - in this case a place to have a staged accident.

15. In Gala v Preston the High Court reviewed its earlier decisions on the duty of care owed by one participant in unlawful activity to another participant in the same activity. That case involved a claim for damages for injuries sustained by a passenger in a car that had been stolen and was being unlawfully used at the time of the accident. Large quantities of alcohol had been consumed by the four young men who were in the car. Although all seven members of the court concluded that the driver owed no duty of care to the plaintiff and upheld the decision of the trial judge dismissing the action, different reasons were expressed. The joint judgment of Mason CJ, Deane, Gaudron and McHugh JJ dealt with the issue as one of proximity and their Honours held that the parties were not in a relationship of proximity to each other such as to give rise to a duty of care.

16. The Supreme Court noted the differences of opinion amongst members of the High Court in Gala v Preston but observed that they were bound by the reasoning in the joint judgment of Mason CJ, Deane, Gaudron and McHugh JJ, as, of course, is this Court. The Supreme Court, applying that reasoning, was of the view that:

"....the fact that the injuries may have been sustained in the course

of preparing for the subsequent execution of an alleged illegal

scheme is only of significance for present purposes if the activity,

in the course of which damage is sustained, is dangerous in itself."

17. Their Honours considered that this could not be said of the accident in the present case and noted that it was not even suggested that the attention of the appellant as driver was distracted by looking for a suitable site to locate the staged collision, by which we take their Honours to mean that there was no such distraction at the time of the accident. Accordingly they concluded that the case was one which, in principle, gave rise to the ordinary relationship of the driver and passenger so that even if it be assumed that the respondent had been a party to the conspiracy, in the circumstances in which the collision actually occurred, the appellant owed him the ordinary duty of care.

18. Their Honours placed emphasis upon the fact that the collision that actually occurred did not arise out of circumstances such as those found in Gala, where the majority observed that the criminal activities involved were, of their nature, fraught with serious risk, but that the collision occurred in ordinary circumstances in terms of traffic and driving conditions.

19. It was argued before us that Gala did not require the conclusion to which the Supreme Court came. In Gala the majority, having examined the earlier cases of Henwood v Municipal Tramways Trust (S.A.) [1938] HCA 35; (1938) 60 CLR 438, Smith v Jenkins [1970] HCA 2; (1970) 119 CLR 397, Progress and Properties Pty Ltd v Craft [1976] HCA 59; (1976) 135 CLR 651 and Jackson v Harrison (1978) 138 CLR 435, said (at 252-253):

"However, it is necessary to take account of developments affecting the

concept of the duty of care since Smith v. Jenkins, Progress and

Properties and Jackson v. Harrison were decided. Commencing with

Jaensch v. Coffey [1984] HCA 52; (1984) 155 CLR 549, this Court, in a series of

decisions, has accepted that a relevant duty of care will arise under

the common law of negligence only in a case where the requirement of a

relationship of proximity between the plaintiff and the defendant has

been satisfied: see Sutherland Shire Council v. Heyman (1985) 157 CLR

424, at pp 461-462, 506-507; Stevens v. Brodribb Sawmilling Co. Pty .

Ltd. (1986) 160 CLR 16, at pp 30, 50-52; San Sebastian Pty. Ltd. v. The

Minister [1986] HCA 68; (1986) 162 CLR 340, at pp 354-355; Cook v. Cook (1986) 162 CLR

376, at pp 381-382. The requirement of proximity constitutes the

general determinant of the categories of case in which the common law of

negligence recognises the existence of a duty to take reasonable care to

avoid a reasonably foreseeable and real risk of injury. In determining

whether the requirement is satisfied in a particular category of case in

a developing area of the law of negligence, the relevant factors will

include policy considerations. Where, as in the present case, the

parties are involved in a joint criminal activity, those factors will

include the appropriateness and feasibility of seeking to define the

content of a relevant duty of care. Thus, it would border on the

grotesque for the courts to seek to define the content of a duty of care

owed by one bank robber to another in blowing up a safe which they were

together seeking to rob. On the other hand, to take an extreme example

the other way, it would be unjust and wrong for the courts to deny the

existence of the ordinary relationship of proximity which exists between

the driver of a motor vehicle and a passenger merely because the driver

was, with the encouragement of the only passenger, momentarily driving

in a traffic lane reserved for the use of cars with three or more

occupants."

20. It will be noted that the majority said, in the context of determining whether the requirement of proximity was satisfied, that the relevant factors will include policy considerations and that where the parties are involved in a joint criminal enterprise those factors, that is to say the relevant factors that include policy considerations, will include the appropriateness and feasibility of seeking to define the content of a relevant duty of care. It was with that preface that the majority in Gala then considered whether there was a relationship of proximity between the parties such as to give rise to a relevant duty of care by examining whether it was possible or feasible, or appropriate or feasible, to define an appropriate duty of care in the circumstances of that case. In our view, in doing so the majority did not narrow the scope of the statement with which they introduced their examination of the issue.

21. However, even if attention is confined to the type of case in which it is neither possible nor feasible or neither appropriate nor feasible to define an appropriate standard of care, an examination of the reasoning of the majority in Gala shows that it is not a necessary feature of such a case that the joint criminal activity be inherently dangerous. The majority (at 253) referred to the case of bank robbers blowing up a safe in a bank and said that "it would border on the grotesque for the courts to seek to define the content of the duty of care owed by one bank robber to another". But it does not follow that this is because blowing something up with explosives is inherently dangerous. The use of explosives for lawful purposes occurs routinely without incident and a standard of care where explosives are lawfully used can readily be defined. An explanation of why it would border on the grotesque for the courts to define the content of a duty of care when bank robbers are involved in blowing up a safe is to be found at the conclusion of the joint judgment where, in the context of the theft and illegal use of a motor car by the parties in Gala, their Honours said (at 255):

"To seek to define a more limited duty of care by reference to the

exigencies of the particular case would involve a weighing and adjusting

of the conflicting demands of the joint criminal activity and the safety

of the participants in which it would be neither appropriate nor

feasible for the courts to engage."

22. When approaching the question in this way, and as we have noted the majority in Gala did not regard this as the only possible way, an inherent danger in a joint criminal activity will highlight the inappropriateness of weighing and adjusting the conflicting demands of the criminal activity and the safety of the participants. How, for example, could the courts appropriately fix a standard of care owed by a driver to his passenger when they are being pursued by the police, as in Fabre v Arenales (1992) 27 NSWLR 437 ? Clearly it would not be possible. But essentially unhazardous joint criminal activity may involve the same difficulty and, given a relationship between the act alleged to be negligent and the joint criminal activity, it is hard to see why the degree of hazard involved should be determinative. Even if the activity is not of its nature dangerous, or is not attended by circumstances that may make it dangerous, the furtherance of the crime may nevertheless add an element that increases the risk of otherwise commonplace activity. If the added element is part of the criminal undertaking and it is concluded that the relationship between the parties is not the ordinary relationship of, say, driver and passenger, but has a special element, the same problem of defining a duty of care by reference to the exigencies of the case may arise. The potential weighing and adjusting of the conflicting demands of a joint criminal enterprise and the safety of the participants is presented whenever there are such conflicting demands. Such instances are not confined to cases involving activities that are dangerous in themselves.

23. It was contended on behalf of the appellant that the criminal enterprise in which the conspirators were engaged was in any event fraught with serious risks and that the time to determine whether the parties are in a relationship of proximity is at the commencement of the joint criminal activity. A central element in the joint criminal activity was of course the proposed staged collision and this was indeed fraught with serious risks; it affords a good example of a case in which it would be neither feasible nor appropriate for a standard of care to be determined. The relevant relationship between the appellant and the respondent at that point would not have been that of driver and passenger and there would, very clearly, have been conflicting demands of the joint criminal activity and the safety of the participants.

24. It does not follow, however, from the conclusion that the ordinary relationship of a driver towards a passenger would have been transformed into a different relationship by reason of the performance of a central element in the crime that the transformation of the relationship occurred at some considerably earlier time, when the joint criminal activity might be said to have begun. At that earlier time it might have been possible to fix a standard of care without any regard at all to the criminal activity in which the parties were engaged; the criminal activity might have been completely incidental and have involved no conflict between its demands and the safety of the participants. It may be, for example, that the mere driving to the scene of a proposed crime would not involve any transformation of the relationship of driver and passenger: see the example of the two swindlers given by Brennan J in Gala (at 271) in the context of his Honour's discussion of condonation of breaches of the law. It might be otherwise if the participants were carrying incriminating equipment in the car for the purpose of committing the crime and feared the possibility of being stopped by the police.

25. Where, as here, the joint criminal activity may be divided into stages it is, we think, consistent with the approach taken by the majority in Gala to consider the relationship between the parties at the stage of the enterprise during which the duty of care is claimed to have been present. It is then possible to ascertain more clearly what was involved in the relationship between the parties at the time the alleged act of negligence occurred.

26. Taking this approach, the relevant stage of the criminal activity was that which began when the conspirators left the Workers' Club in two cars to find a place to have the proposed collision. The whole purpose of the procession of the two cars through some of the streets of inner Canberra was directly related to the commission of one of the central elements of the serious criminal activity in which the conspirators were engaged. It was not merely a journey to the scene of a proposed crime but a journey undertaken in the direct furtherance of the crime.

27. During the search for a place to stage an accident those involved were not, in our view, in the ordinary relationship of driver and passenger. There was a special and exceptional relationship, namely that of conspirators engaged in the furtherance of the conspiracy to which the activity owed its origin and from which it took its whole character. Insofar as it may be said that the relationship of driver and passenger existed, it was quite subsidiary to the relationship that permeated the enterprise, that is, the relationship of conspirators engaged in the furtherance of the conspiracy.

28. The activity in which the conspirators were engaged at that stage of the furtherance of the conspiracy was not of its nature fraught with serious risks such as those that attended the activities of the parties in Gala, but it did involve risks deriving from the criminal nature of the activity.

29. The risk of running into something is obviously increased if a driver is distracted by other activities from the task of driving. It is hard to imagine that the occupants of the car in which the respondent and the appellant were travelling, engaged in looking for a place to stage a collision, would view the passing scene in detached silence or that the driver's attention would not be distracted to some extent by the search. Moreover, the search was being conducted at a time when it was getting dark and, according to the police report which was introduced into evidence, it was dark when the collision occurred at 8.30 pm. The search followed no regular pattern or prearranged route and it involved one car following another. Accepting the finding that the collision was unintended, it is nevertheless not remarkable in the whole context of the activity that it did occur, even though it was not suggested that the defendant's attention was in fact distracted by the search for a collision site at the time the unintended collision occurred. There was also present the possibility, to which we referred earlier, that a good opportunity would arise to have a staged accident and that the opportunity might be taken. The parties must be taken to have appreciated that the journey in which they set out would involve activities that would add to the ordinary risks involved in being a passenger in a car.

30. Whilst there are numerous distractions which threaten to divert the attention of an ordinary prudent driver, including distractions such as of those trying to find a destination in an unfamiliar street, the distractions in this case, and the risks they involved, arose from the very nature of the criminal activity in which the conspirators were engaged. They were not incidental; how they might be handled is one thing but their presence was an inevitable consequence of the criminal activity that was being undertaken.

31. Accordingly, we would conclude that the special element in the relationship of the respondent and the appellant as conspirators required the modification of any standard of care by reference to the criminal nature of their activity (cf per Dawson J in Gala at 280). In these circumstances, the modification of the content of the duty of care to take account of the exigencies of the activities in which the conspirators were engaged would involve, to use the language of the majority in Gala at 255, the weighing and adjusting of the conflicting demands of the joint criminal activity and the safety of the participants in which it would be neither appropriate nor feasible for a court to engage.

32. Just as it would, in our view, be inappropriate to weigh the conflicting demands of the criminal activity of a driver and a passenger engaged in driving around suburban streets looking for a person or place to rob, so here the inappropriateness of the process of weighing and adjusting the conflicting demands is underlined by the very serious nature of the criminal activity involved. It involved, as its centrepiece, a deliberate collision on a public road. No doubt it was desired to avoid actual injury to the participants but that risk was present, as was the risk of injury to innocent road users or pedestrians who might be in the vicinity of the staged accident. Upon the staged accident happening, the first of many deliberate lies would be told. It would be necessary for at least some of those present to give false information to the police. All the participants were liable to be asked questions and all who were asked would be required to lie about the collision. The lies would continue as the claimants related false or exaggerated symptoms to medical practitioners who might later be called upon to give reports in relation to a claim for damages. The proposed defendant's insurer would be furnished with false information by the supposedly negligent driver, by the "victim" driver and quite possibly by the "witnesses". Solicitors would be engaged, and it would be necessary for both plaintiff and defendant to deceive their respective lawyers, too. If the appellant's insurer failed to make an offer of settlement that the claimant was prepared to accept then the matter might proceed to court and the court would be deceived and perjury committed. It was a serious conspiracy to defraud, involving criminality of a serious order over, potentially, a long period.

33. It should therefore be concluded that during the stage in the furtherance of the conspiracy in which the participants were looking for a suitable place to fake an accident the respondent and the appellant were not in a relationship of proximity such that the appellant, as driver, owed a duty of care to the respondent as passenger.

34. In his reasons for judgment the Master said that the accident happened whilst Mr Pangallo and Mr Reich were "returning to the Club to discuss the details of the proposed staged accident". This raises, as final questions, whether, at the time the collision occurred, the search for a suitable place to stage an accident had concluded and, if it had, whether as a consequence the ordinary relationship of driver and passenger had resumed. The description of the drive given by Mr Reich, which the Master must have accepted at least substantially, does not suggest that there was a clear beginning and an end to the search, which was to be conducted in "the Childers Street area". Shortly before the collision occurred, in that area, the cars had made several turns from one street into another and although the conclusion that the participants were returning to the Workers' Club is justified by the evidence and the cars were quite near the Club (although not yet in the street in which the Club is situated), there is no reason to suppose that the search had then ended and that the factors that transformed the relationship into one as to which there was no relevant duty of care had ceased to be present.

35. We should mention that counsel for the appellant argued that evidence about other accidents was wrongly excluded but our conclusions make it unnecessary for us to examine that question.

36. We would therefore allow the appeal. The order of the Supreme Court dismissing the appeal from the Master should be set aside. Instead there should be orders allowing the appeal from the Master with costs and setting aside the Master's orders. There should be an order that judgment be entered for the defendant with costs. The respondent should pay the appellant's costs of this appeal.

NEAVES, BURCHETT and WHITLAM JJ The circumstances of this appeal are, fortunately, unusual. The respondent (plaintiff) brought proceedings in the Supreme Court of the Australian Capital Territory for damages for personal injuries alleged to have been sustained in a motor accident. He sued the appellant (defendant), whose case has throughout been conducted upon the instructions of a third party insurer. When the claim came before Master Hogan, the defence denied that the plaintiff's injuries were caused by any failure of the defendant to take reasonable care for his safety, alleging that they were in fact caused by a deliberate act of the defendant committed with the prior consent of the plaintiff. It was further alleged that the parties were co-conspirators in a conspiracy, organized by a Mr Frank Pangallo, in which the driver of another motor vehicle involved in the sustaining of the plaintiff's injuries (a Mr Reich) was also involved. The object of the conspiracy was specified as the staging of apparent motor vehicle accidents, particularly rear end collisions, and the making of fraudulent claims for damages for personal injuries alleged to have been suffered.

2. There is no doubt, on the findings of the Master, that at least Mr Frank Pangallo, Mr Reich and the defendant did so conspire. The evidence is principally that of Mr Reich himself, who was motivated to reveal the details of the conspiracy by a religious conversion accepted by the Master as genuine. We have read Mr Reich's evidence with care, and can see no reason to doubt the Master's assessment of his essential truthfulness. However, a large question in the case at the trial was whether, not only the defendant, but also the plaintiff, had been shown to have joined in the conspiracy. So far as the defendant was concerned, the Master specifically rejected his denials, and held "that at least Mr Reich, Mr Pangallo and Mr Italiano had planned to stage" an "accident". The Master did not make a finding that the plaintiff was a party to the conspiracy, although he expressed "considerable suspicion". We shall return to this issue after sketching a brief outline of what occurred.

3. Mr Frank Pangallo and Mr Reich came to know each other quite well, and to meet frequently, through their mutual interest in racing and race horses. Mr Frank Pangallo had a stable where he trained race horses, one of which was owned by Mr Reich, who had a stable hand's licence and used to assist in the stable. Over a period, according to Mr Reich, he was introduced by Mr Frank Pangallo to "his partners", not in the stable, but in the business of painting contractor which Mr Frank Pangallo also carried on. They were Joe and Sam Barbaro and Frank Italiano. The plaintiff's Anglicized name is "Joe", and his own evidence is that, during a period of years prior to his being injured, he, his brother Saverio, the defendant, and Frank Pangallo all co-operated in tendering for painting contracts, and in the carrying out of those contracts, in such a way that they could be described, at least colloquially, as "partners". But the plaintiff and the defendant both denied that they had met Mr Reich.

4. Mr Reich gave evidence of conversations with Mr Pangallo on the subject of motor accidents. Mr Pangallo suggested to him that money could be made out of "accidents", which did not need to be genuine, some of which had been accomplished by his own relatives in Griffith. Mainly they were rear end collisions. He said that it was fairly easy to have doctors set existing injuries down to accidents. Mr Reich, who had developed a bias against insurance companies arising from his having been, as he thought, "short changed" in relation to some claims, agreed to involve himself in the scheme outlined by Mr Pangallo.

5. Shortly before 13 September 1981, Mr Pangallo provided about $1,700 to Mr Reich, in cash in a brown paper bag, as an inducement, and a further $350 or $450 for the purchase of a cheap motor vehicle. With some of the money, a dilapidated Cortina was acquired. It was driven by Mr Reich, with Mr Frank Pangallo and a Mr Joe Pochi as passengers, to an area near Queanbeyan, together with another car, an Alfa Romeo, in which some other persons had come from Griffith by arrangement with Mr Pangallo. At some stage, the appellant, Mr Italiano, got into the Alfa Romeo as an additional passenger. After a little hesitation, owing to nervousness on the part of Mr Reich, a collision took place in which Mr Reich, at Mr Frank Pangallo's direction, deliberately drove into the Alfa Romeo. The police were called, and Mr Reich was blamed for colliding with the back of the other car. Mr Joe Pochi attended hospital, together with Mr Italiano, to report alleged injuries. After that, Mr Reich, whose car was still in a condition to be driven, dropped Messrs Pangallo and Pochi off at the stables, and returned home.

6. Mr Reich's arrangement with Mr Pangallo was that a further "accident" would be staged in the Australian Capital Territory, in which someone else would be at fault, so that Mr Reich would be able to make a claim for himself. He could not, of course, make any claim in respect of the collision at Queanbeyan, in which he appeared to have been the only driver at fault. Mr Pangallo also said that Mr Reich was needed because his name was not Italian, and that his wife should be involved too in order to divert suspicion. She had back and neck problems. According to Mr Reich, Mr Pangallo

"said that he had people organized to be in the other car;

that two of his partners would be involved in that and I

know that he told me the names of those people - that it

would be Frank Italiano and Joe Barbaro."

The "accident" was to be in the Australian Capital Territory this time, "so that they could utilize another insurance company". There were discussions fixing the long weekend of March, and about "how we would actually meet at the Workers' Club and fit circumstances to, you know, that already existed into the fabrication of that accident."

7. On the day of the collision, Mr Reich said, he was working at his video shop (it was, we think, clearly the shop at Belconnen, despite counsel's mistaken reference in a question to Civic, which Mr Reich appears not to have noticed because his attention was diverted by a different problem in the question) all day until Mr Frank Pangallo called, just prior to closing time, about 7.00 p.m. They met outside the shop. It was arranged "to go and look for a place to have an accident". They "were to meet at the Workers' Club". Mr Pangallo "had his partners there to ... get involved in the accident, if we could find a suitable place to have it". After closing up, Mr Reich drove with his wife to the vicinity of the Workers' Club, where he saw a Valiant car parked, with three occupants, whom he identified as Frank Pangallo, Frank Italiano and Joe Barbaro. The car was the car in which Mr Pangallo had come to the shop, and it was known to Mr Reich as Mr Frank Pangallo's. In fact, the evidence shows, it had shortly before been transferred by Mr Pangallo to Mr Italiano, and shortly afterwards it was transferred to Mr Frank Pangallo's brother John. Mr Reich pulled up, in his Valiant panel van, near the parked Valiant car, and he and Mr Frank Pangallo got out of their vehicles. Then Mr Reich went over to Mr Pangallo's vehicle, where he spoke to him "about looking for a place to stage the accident". The plaintiff and the defendant remained in the car. According to Mr Reich's evidence:

"We then decided that we'd drive around that area, you know,

the Childers Street area, to look for an appropriate place

to have an accident. My understanding of the events that

were to follow was that we were going to decide, then come

back, then plan the accident."

8. After this discussion, Mr Reich drove his vehicle, with the other car following, driven by the defendant, "around some of the streets around the Childers Street area". His evidence continued: "We drove around. We eventually ended up on Barry Drive. We turned down towards the university ... ." He described a series of turns into other streets, culminating in the street where the collision occurred. There, he was driving past a car park (which the evidence shows was on his right) when a white Valiant came out of the car park, and it

"appeared to me that it was going to shoot across our path,

and I momentarily braked to avoid a possible collision with

that, and then the car behind me hit me. We went to the

left, we hit the kerb, and then mounted - as we were

mounting the gutter the car behind hit the second time, and

we ended up on a give way post."

The car behind was the defendant's. In answer to specific questions, Mr Reich said that the white Valiant stopped before he applied his brakes, which he applied

"because it was something that happened fairly

instantaneously, and I assumed that he was going to come

across by the motion of the car. He wasn't going very

quickly, but he was going further than what I would have

thought would have been somebody that was going to stop."

The front of the white Valiant, he emphasized, was not over the centre line of the road. Asked: "Did you apply your brakes hard?" Mr Reich replied: "No, it wasn't hard. It was a braking more of evasion than anything." He saw the white Valiant drive off, and he got out of his own car to speak to Mr Italiano, to whom he said: "It was very convenient for that white Valiant to be there, and act in the way that it did." There is no suggestion Mr Italiano repudiated the implications of this statement. While they were waiting for the police, Mr Reich realized that his licence was out of date. He saw Mr Frank Pangallo there, and "discussed that with Frank Pangallo and I believe also Frank Italiano, and it was thought that that would hinder me being able to claim against them and there would be complications". They agreed to say that Mrs Reich was driving. During this time, the plaintiff was sitting in the car.

9. When the police arrived, Mr Frank Pangallo "made himself scarce", and Mr Reich did not tell the police that there were three people in the other car. A Sergeant Hend gave evidence of attending, on 15 March 1982, at the scene of an accident in Hutton Street, Canberra, 30 metres from the intersection of Childers Street. He described the accident as "a very minor one". He was told that Maureen Reich was driving, and that she "stopped for a Valiant sedan that had come out of the car park situated off Hutton Street in an erratic manner. Mr Italiano was also watching the Valiant, to see where it was going; he then collided with the vehicle in front of him." The vehicles sustained minor damage, and were not towed away. Sergeant Hend said: "I asked the drivers how many were in each vehicle". He recorded that there were two occupants in Mr and Mrs Reich's vehicle, and three in Mr Italiano's vehicle. Asked by counsel for the plaintiff whether, if he had seen someone in the back seat of Mr Italiano's vehicle, that could have had a bearing on his view as to how many people were in the vehicle, he replied: "It may have, but not normally. Persons could be there at the scene after we arrived, and we wouldn't know whether they were involved in the scene or not. That's why we'd ask the drivers or ask independent witnesses." But he did not record the names of any passengers as witnesses. That includes the plaintiff himself, as well as Mr Pangallo and Mr Reich. In view of the minor nature of the collision, the failure to note the names of the passengers, or any other persons, as witnesses seems perfectly understandable to us. Another contemporaneous record consists of the casualty notes of Royal Canberra Hospital in respect of an attendance by the plaintiff at 9.17 p.m. on 15 March 1982. The history then given is set out by the hospital, in quotation marks, as follows: "Motor vehicle accident tonight - front seat passenger in car which collided with rear of another vehicle." The note continues, not in quotation marks, "Now has sore neck".

10. The question whether the plaintiff was a party to the conspiracy the Master found established, as between Messrs Pangallo, Italiano and Reich, must be answered very largely on the basis of circumstantial evidence. So far as it depends on credit, Mr Reich's credit was accepted by the Master in the following terms: "I am satisfied that in broad outline Mr Reich's evidence should be accepted." The Master qualified that when he said:

"While I have accepted Mr Reich's evidence about the existence

of the conspiracy, it does not follow that his recollection

is trustworthy with respect to all the details of his

evidence. In giving his evidence he was often loquacious

and difficult to keep to the point, whilst being vague and

lacking in precision and particularity. The conversations

and details about which he was testifying had happened over

nine years ago."

The Master also referred to some lack of correspondence, in point of precise detail, between what had been put in cross-examination of the plaintiff by counsel for the defendant, and the evidence of Mr Reich. As to these matters, a careful reading and re-reading of the transcript of Mr Reich's evidence does not suggest that any of the difficulties mentioned was at all marked, or could give any cause, the genuineness of his religious conversion and the honesty of his general account having been accepted, to doubt his version of events, beyond the limited comment made by the Master: "It does not follow that his recollection is trustworthy with respect to all the details of his evidence". So far as concerns the remark that his evidence did not entirely coincide with what counsel had put, it should be pointed out that Mr Reich first made a statement for the defendant after the commencement of the hearing, at a solicitor's office, and afterwards in the motel room "of one of the people at the solicitor's". He was then endeavouring to bring back to his mind events of nine years before, and his explanation may readily be accepted: "Well, I can remember since I made my statement that some things have become more clear."

11. What is important is that the Master accepted the substance of Mr Reich's evidence. He said that Mr Pangallo and Mr Italiano "were undoubtedly conspirators". He said that the accident happened "while they were returning (emphasis added) to the Club to discuss the details of the proposed staged accident". This statement, and particularly the use of the word "returning", plainly accepts Mr Reich's account of the meeting in the vicinity of the Club at which arrangements were made to look for a convenient spot for the conspirators' purpose, and his account of driving around to that end. In particular, the Master seems to have accepted that Mr Frank Pangallo was travelling in the car with the plaintiff and the defendant. Although he does not spell this out in a finding, he nowhere suggests otherwise, and the pronoun "they" in the statement we have quoted seems naturally, in the context, to include Mr Pangallo. Discussion of the details of the performance to be played out for the police and the insurance company could hardly proceed in the absence of the director. The Master calls it "the accident that Mr Pangallo and Mr Reich were planning to stage". In any case, the evidence that Mr Pangallo was in the car seems overwhelming. He had come in it to the video shop at Belconnen, Mr Reich had later discussed the plan with him at the cars near the Club before they set out to drive around to find a suitable place, and Mr Reich, after the collision, discussed with him the problem of his expired licence. Mr Reich expressly said that Mr Pangallo slipped away when the police arrived. A rejection of all this would not be consistent with accepting Mr Reich's honesty; these matters are not all to be dismissed as details thrown up by a faulty recollection.

12. Mr Reich also receives some support from the surrounding circumstances. If Mr Pangallo was not in the car, how does it come about that the police report records three occupants? It is easy to believe that Mrs Reich, being unschooled in conspiracy and suddenly thrust forward as the driver because of the problem with the licence, may have blurted out, in response to the policeman's question, that there were three persons in the other car; or Mr Italiano may not have learned his lines well enough. The only explanation proffered for the entry in the police report, on the hypothesis that there were but two persons in the car, is that the plaintiff was sitting in the back seat because the passenger's side front door was jammed, and the police officer may have been confused by seeing him sitting there. Not only is there no acceptable confirmation that the door was jammed, the police officer expressly said that his practice was to ask the drivers how many persons were in the cars. And there is the suggestive existence of the hospital note, recorded in quotation marks, containing a history that Mr Barbaro was not in the back seat, but in the front. Finally, Mr Frank Pangallo had been a passenger in the car driven so as to cause a collision at Queanbeyan a few months earlier. He had then directed Mr Reich to drive into the back of another vehicle at an opportune moment, when it changed direction upon entering an intersection. The two "accidents" were part of the one overall scheme planned by him with Mr Reich. There is no reason to suppose that, having made all the arrangements, he suddenly stepped out of the role he had fulfilled so effectively at Queanbeyan.

13. The plaintiff was cross-examined about his knowledge of the conspiracy. He not only denied any complicity in it, but he also denied any knowledge of who Mr and Mrs Reich were, and even of his own awareness, despite lengthy interrogatories and considerable publicity in Canberra, that a defence of conspiracy was to be raised at all. The Master described those denials as "not credible", and a perusal of the transcript of the cross-examination shows this description to be fully justified. As regards the direct evidence of Mr Reich that Mr Pangallo had said the plaintiff would be involved, however, the Master pointed out that this was in the context of the staging of an "accident" to enable Mr and Mrs Reich to make a fraudulent claim. He added:

"For all that the statement demonstrates it could be that the

plaintiff was to be present as driver of the vehicle that

would be in the wrong, or as a mere witness. It does not

demonstrate that it was also a purpose of staging the

accident that the plaintiff would be able to claim damages

also. The most that could be said is that such an

additional purpose would not be inconsistent with what was said."

14. We find this part of the Master's reasons somewhat puzzling. It cannot matter, from the point of view of the issues raised by the defendant in the present case, whether the plaintiff was a party to the conspiracy in order to make a fraudulent claim, or in order to assist Mr and Mrs Reich in the making of fraudulent claims. At the same time, the inference is very strong that if he was knowingly present as a passenger in a vehicle to be driven deliberately into a collision, he proposed to make a fraudulent claim against the driver, as Mr Pochi had done in relation to the previous "accident". Only the director of operations, Mr Pangallo, and the driver, Mr Italiano, would really be likely to take part in that evening's activities for any other reason. Mr Italiano, of course, had already been the beneficiary of an opportunity to make a claim, as a result of the driving at Queanbeyan for which Mr Reich was due to be rewarded.

15. The Master reached his final conclusions on liability in a passage which we will set out in full:

"The plaintiff's very presence at the scene, his

relationship with Mr Pangallo and Mr Italiano, who were

undoubtedly conspirators, and his unsatisfactory answers to

some of the questions put to him in cross-examination must

give rise to considerable suspicion about his purpose in

being in the defendant's vehicle that night.

But to succeed the defence must demonstrate that the

accident that happened was staged, and that he had in fact

agreed to be present during that accident in order to make a

false claim for damages.

A number of common indicators of such a false claim

are absent. He had no pre-existing disabilities to include

in a claim for compensation. He did not exaggerate his

injuries. He made no attempt to suggest that problems that

he had with his lower back were in any way exacerbated by

the accident. He has made genuine efforts to get back to

work. He consulted the same general practitioner who had

been treating him for years. He insisted on a second

opinion before undergoing neck surgery.

When all the evidence is taken into account, I find

that I am not persuaded that the plaintiff had consented to

be a party to any staged accident, or that he had conspired

with Mr Reich, Mr Pangallo and Mr Italiano to make a

fraudulent claim for damages.

If it were necessary, I would also find that the

accident in which he was injured was not the accident that

Mr Pangallo and Mr Reich were planning to stage in order

that Mr and Mrs Reich would make a fraudulent claim. It

happened unexpectedly while they were returning to the Club

to discuss the details of the proposed staged accident. The

negligence of Mr Italiano which gave rise to his injuries

was therefore not a step in the execution of any common

illegal purpose, even if Mr Barbaro had been a party to that

purpose.

There will therefore be judgment for the plaintiff."

16. In the second paragraph of this passage, the Master repeats the proposition that the plaintiff would only be defeated by a conspiratorial agreement reached "in order to make a false claim for damages". The alternative of assisting in the claims of Mr and Mrs Reich is overlooked here, and again in the next paragraph but one. The penultimate paragraph raises a separate issue, to which we shall return later.

17. In referring to his "considerable suspicion", but declining to proceed to an actual finding of the plaintiff's complicity in the conspiracy, the Master mentioned the plaintiff's relationship with Mr Pangallo and Mr Italiano, which was close, but failed to make any reference to the powerful circumstance of Mr Pangallo's presence in the car and the plaintiff's denial of it. What gives rise to almost irresistible inferences is not merely that the plaintiff was present at the scene, but that he was in the car during the search for a place to stage an "accident", with Mr Pangallo the director and with Mr Italiano, the driver who, at this time or very soon afterwards, at latest, was to perform the deliberate act of driving into the other car. It would have been an intolerable impediment for Mr Pangallo in giving any directions to the driver, and for both of them in any discussion about their plans, if the third person in the car had been an innocent unknowing passenger. Furthermore, the course taken of driving around the streets near the Workers' Club would in itself have excited comment from even the most naive passenger who thought they were driving directly to the Club. Once place Mr Pangallo in the car, and the question hardly bears discussion. It was a serious error in the Master's consideration of the whole matter that he failed to examine the implications of this situation.

18. In the light of the inferences arising from Mr Pangallo's presence in the car, the plaintiff's denials of that presence have significance in themselves. The most natural inference is that he denied the truth because he was well aware of where it pointed, and constructed the elaborate explanation of a jammed front door lock to sustain his lie. He denied the whole episode, evidenced by Mr Reich, of the meeting between the cars and the driving around the streets near the Club. According to him, he was on his way from his brother's place at Scullin directly to the Club, when the collision occurred.

19. While these considerations are in themselves sufficient, in our opinion, to compel the conclusion that the plaintiff was a party to the conspiracy, the evidence offers an independent ground for the same persuasion. It will be recalled that Mr Pangallo told Mr Reich, when they were planning the "accident", in effect, that he had arranged for two of his "partners" to be involved, Frank Italiano and Joe Barbaro, who would be in the other car. We have already pointed out that the Master discounted this statement on a basis which we cannot accept - that the purpose of the plaintiff in joining the conspiracy would have to be a purpose of making a false claim of his own arising out of the collision. But the question remains whether the statement can be used as part of a process of reasoning that implicates the plaintiff. In our opinion, despite the hearsay rule, it can be so used on each of two distinct bases.

20. Where a person's intentions are material, evidence of statements made by him which indicate those intentions is original evidence, and not hearsay. Burchett J discussed a number of authorities establishing this proposition, as well as the contrary view expressed in Cross on Evidence (3rd Australian edition 1986) at 1,000, in Shoshana Pty Ltd v. 10th Cantanae Pty Ltd (1987) 18 FCR 285 at 298-299. Any controversy about this question, for Australian courts, has since been laid to rest: Walton v. The Queen [1989] HCA 9; (1989) 166 CLR 283. There, in a murder trial, evidence of the deceased's statements, indicative of her intention to meet the accused at a particular place, was admitted as evidence of her intention, from which the inference could be drawn that she did go to that place and met the accused. Independent evidence had been adduced that the accused, for his part, intended to go to the same place to meet her. Mason CJ (at 291) said:

"The admissibility of evidence of statements of intention to

do an act as proof that the act was subsequently undertaken

rests on probability. It is for the tribunal of fact to

decide whether it will infer that the author of the

statement carried out his intention."

"It is the conjunction of ... independent evidence of the

making of the arrangement between the applicant (the

accused) and the deceased and the evidence of the deceased's

intention to travel to the Town Centre to meet the applicant

that provides a foundation for the inference that they went

to the Town Centre and met there."

Similarly, in Dobson v. Morris, reported in (1986) 4 NSWLR 681, but decided in 1975, evidence that a worker had stated an intention to proceed directly to work was relied upon to ground the inference that she did so, although the proved circumstances of the accident, which had rendered her amnesic, were consistent either with her having been upon such a journey or with her having been upon a different journey. Applying this principle to the present case, we find a persuasive conjunction between the evidence of the intention of Mr Frank Pangallo, the directing mind of the conspiracy, to arrange for the participation of the plaintiff, and the evidence that the plaintiff was actually in the car the driver of which was to precipitate the collision. When the two pieces of evidence are married together, and bearing in mind all of the surrounding circumstances, no other conclusion seems possible, as a matter of probability, than that the plaintiff was there to take part in the conspiracy as Mr Frank Pangallo had arranged that he should be.

21. We have not overlooked the fact that the evidence of intention is wrapped up in a statement of what Mr Frank Pangallo had already done. But this does not make the statement inadmissible; it merely means that the court must distinguish between its effect as an indication of Mr Frank Pangallo's intention to continue with the arrangements he had made (which is admissible and relevant), and its effect as a statement of what he had already done (which, for present purposes, is hearsay and therefore inadmissible). We have also not overlooked the many assertions in the authorities that if a fact is to be proved by circumstantial evidence, the conclusion must be the only one reasonably open. But this proposition is confined to the criminal law; in a civil proceeding, where facts are to be established as a matter of probability, competing explanations need only be excluded on the probabilities.

22. To use Mr Frank Pangallo's statement of his own intention, in conjunction with other evidence, as circumstantial evidence going to prove that the plaintiff was involved in the conspiracy would be entirely in accordance with a longstanding method of proof of participation in a conspiracy. Statements of intention, which are not hearsay, are simply acts proved to have been done by the person who so stated his intention. No special principle is required to enable such acts to be taken into account, together with other evidence, where a relationship between the act in question and the other evidence can be shown to prove a circumstantial case against another alleged conspirator. Burchett J collected the authorities in support of this proposition in an article Recent Developments in the Law of Conspiracy published in (1988) 4 Australian Bar Review 115 et seq. (and corrigendum 280). An authoritative decision there cited is The King and the Attorney-General of the Commonwealth v. The Associated Northern Collieries (the Coal Vend case) [1911] HCA 73; (1911) 14 CLR 387, where Isaacs J said (at 400):

"Community of purpose may be proved by independent facts, but

it need not be. If the other defendant is shown to be

committing other acts, tending to the same end, then though

primarily each set of acts is attributable to the person

whose acts they are, and to him alone, there may be such a

concurrence of time, character, direction and result as

naturally to lead to the inference that these separate acts

were the outcome of pre-concert, or some mutual

contemporaneous engagement, or that they were themselves the

manifestations of mutual consent to carry out a common

purpose, thus forming as well as evidencing a combination to

effect the one object towards which the separate acts are

found to converge."

23. But independently of any ordinary process of reasoning from circumstantial evidence, along the lines so eloquently expressed in the Coal Vend case, there is another way in which evidence of a statement such as that made by Mr Frank Pangallo, uttered by a participant in furtherance of the common purpose of the conspiracy, is admissible against a person in the position of the plaintiff. We refer to the special rule laid down by the High Court in Ahern v. The Queen [1988] HCA 39; (1988) 165 CLR 87. The joint judgment there considered (at 94)

"the question ... whether there are circumstances in which

evidence of the acts and declarations of other participants,

outside the presence of the individual, may be led against

him, not as separate facts from which, when combined with

other facts, an inference of combination may be drawn, but

as evidence of his own participation. Evidence of the acts

or declarations of others led for this purpose will be led

to prove the truth of the assertion or implied assertion

contained in those acts or declarations. It would be

excluded as hearsay or its equivalent were it not admissible

upon some other basis."

That question the court answered in the affirmative, subject to conditions which were set out (at 100) in the following terms:

"Where an accused is charged with conspiracy, evidence in the

form of acts done or words uttered outside his presence by a

person alleged to be a co-conspirator will only be

admissible to prove the participation of the accused in the

conspiracy where it is established that there was a

combination of the type alleged, that the acts were done or

the words uttered by a participant in furtherance of its

common purpose and there is reasonable evidence, apart from

the acts or words, that the accused was also a participant."

The judgment makes it clear (also at 100) that the expression "reasonable evidence" was not intended to express any different meaning from that of "a prima facie case", but was chosen to indicate an "element of discretion".

24. The rule stated by the High Court in Ahern is precisely applicable in the present case, unless a method of proof thought acceptable in the context of a criminal trial is to be excluded in the context of a civil action. We can see no reason to exclude the rule in the latter context. Here, it has been established that there was a combination of the type alleged, and that Mr Frank Pangallo's statement was made to Mr Reich in furtherance of the common purpose of that combination, that is to say, to demonstrate to Mr Reich that the arrangements were being organized thoroughly so that he could proceed to play his part with confidence in the result. The remaining question is whether "there is reasonable evidence, apart from the ... words (of Mr Frank Pangallo), that (the plaintiff) was also a participant". That "reasonable evidence", equivalent to a prima facie case, is to be found in the circumstantial evidence, and particularly in the evidence of the plaintiff's presence, in the company of other persons all of whom were co-conspirators, when the final act of the conspiracy was being planned. Since that evidence is certainly sufficient for a strong prima facie case, there is every reason to regard it as complying with the requirement of "reasonable evidence". Ahern then authorizes the court to rely upon Mr Frank Pangallo's statement, even if it be regarded as hearsay, and even insofar as it did include hearsay.

25. It will be apparent from the foregoing that more than one error was involved in the Master's failure to find affirmatively that the plaintiff was a party to the conspiracy. Although ultimately the conclusion is one of fact, it is an inference from primary facts found by the Master and from evidence of a witness whose credibility the Master accepted. Having come to a clear and decided opinion on the matter, we do not think we should fail to reflect that opinion in our judgment.

26. A further question of fact was debated at the hearing of the appeal. The appellant contended, not only that the plaintiff was a party to the conspiracy, but also that the collision upon which he based his claim was contrived in pursuance of the conspiracy. The latter conclusion is also one which the Master did not reach. In this case, he stated that, "(i)f it were necessary", he would find to the contrary, that is, that the plaintiff sustained injuries in an accident which was not planned but happened unexpectedly.

27. The Master devoted very little discussion to his conclusion on this point. He referred to the evidence of the plaintiff and Mr Italiano, but in view of his finding as to the plaintiff's credibility, and his finding that Mr Italiano was "undoubtedly" a party to the conspiracy, he could hardly have given much weight to anything in their account which assisted the plaintiff. The only version of the accident given by a witness whose credit was accepted was the account of Mr Reich. It is true that he described the collision as "unexpected", following his having braked when a white Valiant came out of the car park which was on his right. But a reading of his evidence as a whole does not suggest that he braked violently; the white Valiant never reached his side of the road, and, as he saw it coming out of the car park, he was hardly placed in a position of great emergency. They were driving around looking for a suitable place for an "accident", and there is no suggestion from any witness as to their speed. There was no evidence of skid marks, and the police officer described the collision as "very minor".

28. What seems to us to be significant about the circumstances of the collision is that they were all consistent with the view that the conspirators in the second car, who had the staging of an "accident" very much in mind, had ample time to react to the developing situation by deliberately driving into Mr Reich's vehicle. There is, in fact, direct evidence on the matter of the time available to them to make a decision. It is clear from the account of the police officer that Mr Italiano must have told him about "watching the Valiant to see where it was going". This shows he saw the third car, and was not placed in the position of having to react to some unexplained braking by Mr Reich ahead of him. The plaintiff himself, as a passenger (and on his version a passenger in the back seat), gave evidence of seeing a car come out from the right. He asserted that he said: "Frank, watch out, watch out, car coming from the park". The point is that if he had time to observe the car coming out and to call the warning he says he called, Mr Pangallo certainly had time to give an appropriate direction to the driver, Mr Italiano. The situation was indeed exactly comparable to the situation upon which Mr Pangallo had seized at Queanbeyan, when he directed Mr Reich to drive into a vehicle that had changed direction at an intersection. The evidence makes it plain that Mr Pangallo had had some experience at staging "accidents", and the collision at Queanbeyan demonstrates his opportunism. It is unlikely he would have neglected such a golden occasion. The fact that the collision was unexpected to Mr Reich is as consistent with this conclusion as with that of the Master. For a driver who has to brake violently might be expected to know that his action could cause an accident. It is the driver who brakes relatively gently, as a measure of safety when he sees another vehicle well before the point of emergency, who is likely to find a rear end impact unexpected. Significantly, at the time, when there was no reason to engage in elaborate reconstruction or rationalization, Mr Reich's reaction was to conclude immediately that this was the "accident" that had been planned, and to remark to one of his co-conspirators how convenient the actions of the third car had been. It did not then occur to him that their plans had been overtaken by a genuine accident. What did occur to him was to act "as if it was a normal accident" (emphasis added).

29. Against these considerations, and against the simple conclusion that a genuine accident would in all the circumstances have been too extraordinary a coincidence to be likely, is to be set, it seems to us, only the evidence of Mr Reich that he had understood the intention of the parties to be the planning of a fake accident, which was not to be staged until after a return to the Club. But here it is important to look at the evidence with some care. There is no evidence precisely establishing that the drive in the two cars around the area in the vicinity of the Club had no other purpose than to reconnoitre the ground. The actual decision, as reported by Mr Reich in his evidence was "that we'd drive around that area, ... the Childers Street area, to look for an appropriate place to have an accident." He expressed his own understanding, but did not give evidence that Mr Frank Pangallo had said anything specific to create that understanding, when he added: "My understanding of the events that were to follow was that we were going to decide, then come back, then plan the accident." The evidence makes it clear that Mr Frank Pangallo had had prior experience of arranging "accidents"; Mr Reich had had no prior experience except in the case of the collision at Queanbeyan when he, being the driver who had to precipitate the impact, simply obeyed Mr Frank Pangallo's orders. The conspiracy was formed by persons of Italian origin, most of them (if we include the wider group to which the evidence showed Mr Frank Pangallo belonged) from a small town in Calabria called Plati, and Mr Reich had joined this close knit cabal, unable to understand Italian, as an outsider who had been brought in only as a result of his acquaintance with Mr Frank Pangallo. The situation was not unlikely to lead to some misunderstandings.

30. If the facts are examined without any preconception that Mr Reich's understanding must have represented the reality, they speak for themselves quite strongly. The car which was to initiate a rear end collision was travelling quite close behind Mr Reich's vehicle while they drove around a succession of back streets. If, by looking for an appropriate place to have an "accident", Mr Frank Pangallo had meant merely to survey the locality in order to pick out a spot with a view to discussing it and returning later, it is curious that he was not in Mr Reich's car in front. How was he to stop the party to examine what he thought was a likely setting? He would not have wished to attract some bystander's attention by sounding the horn so as to get Mr Reich to pull up. But if by looking for an appropriate place to have an accident he meant exactly what he had done with Mr Reich at Queanbeyan, it is natural that he would be in the rear car, as he had been then, where he could direct the action. The events which actually occurred in the vicinity of the Workers' Club closely paralleled the events which had occurred at Queanbeyan. The impact was precipitated immediately the target vehicle did something which made a collision look natural. In neither case, of course, was it an impact of any severity. If it be said that quick thinking was required on the part of Mr Frank Pangallo, the answer is that he had already demonstrated his capacity at Queanbeyan, and that the evidence suggests that he had had some prior experience. In our opinion, when all the circumstances are taken into account, there is a very strong circumstantial case to show, on the probabilities, that the collision which occurred was the very collision which was planned.

31. There is a question of onus which arises in the reasons of the Master. That question it is unnecessary to decide because we are affirmatively satisfied upon the issues we have been discussing. However, the point should not be ignored. In an action for damages in respect of injuries alleged to have been sustained by the negligence of the defendant, the plaintiff bears the onus of establishing his allegation that his injuries were sustained in that way. It is true that in Gala v. Preston [1991] HCA 18; (1991) 172 CLR 243 at 254 the joint judgment of Mason CJ, Deane, Gaudron and McHugh JJ contains a statement that

"the onus lies on the party who asserts that, by reason of

special and exceptional facts, the ordinary relationship of

a driver towards a passenger is transformed into one which

lacks the requisite relationship of proximity to give rise

to a relevant duty of care".

The logic of this statement is plain; proof that the plaintiff was a passenger in a car driven by the defendant, no qualifying fact being evidenced, is proof of a relationship which creates a duty of care. But every statement in a judgment must be read secundum subjectam materiam. Where it is established that the driver and passenger in question had joined in an arrangement to bring about a collision deliberately, the logic of the statement in the joint judgment, as applied to the actual situation in this appeal, simply disappears; the relationship of driver and passenger is not "ordinary". In such a case the plaintiff is remitted to his initial position of a party alleging a cause of action, who must in general discharge the onus of establishing each of its essential elements. It follows that, once the defendant proved the conspiracy to stage just such an "accident" as occurred, the onus of showing that the plaintiff nevertheless sustained his injuries by the negligence of the defendant, and not as a result of their agreement, lay upon the plaintiff. The position was as it would be in a case raising the so-called defence of "inevitable accident", where the onus does not shift to the defendant: Jockel v. Jockel (1963) SR (NSW) 230 at 233-234, approved in Piening v. Wanless [1968] HCA 7; (1968) 117 CLR 498 at 512-513, per Windeyer J We therefore think the Master erred when he said "the defence must demonstrate that the accident that happened was staged". This error is material because it means that when the Master went on to find that "the accident in which (the plaintiff) was injured was not the accident that Mr Pangallo and Mr Reich were planning to stage", he did so upon reasoning that reversed the onus.

32. We should add that the statement in the joint judgment of the Supreme Court suggesting it was "common ground that the respondent's injuries were suffered when an unexpected and genuine accident occurred" is simply a mistake. Both parties accepted, and the Master's reasons make it plain, that this was very much in dispute.

33. Another matter to which reference should be made is the position of Mrs Reich. She was not called to give evidence, and the respondent sought to rely, in relation to that fact, on Jones v. Dunkel [1959] HCA 8; (1959) 101 CLR 298. But the circumstances did not leave the failure to call her unexplained. She had joined the conspiracy; brought a claim; and it was not suggested she had thereafter met with any moral and religious transformation, as her husband had in the Master's view, upon a personal road to Damascus. The situation was similar to that in Fabre v. Arenales (1992) 27 NSWLR 437, where the principle of Jones v. Dunkel was denied any role in the decision, although the witness not called was a party. At all events, the Master was prepared to assume Jones v. Dunkel applied, and still to accept the truthfulness of Mr Reich, pointing out that he had no motive to fabricate evidence against the plaintiff.

34. We have considered whether, in these circumstances, it is appropriate to give effect to the firm view of the facts at which we have arrived, notwithstanding that the Master reached a different view, with which the Supreme Court did not interfere. In cases where an attack on the findings of a trial Judge involves the credibility of witnesses and the confidence to be reposed in them, firm rules have been laid down restricting the interference of appellate courts. The leading authorities were discussed at some length in the joint judgment of Wilcox and Burchett JJ in Westpac Banking Corporation v. Spice (1990) 12 ATPR 51,386 at 51,396-51,399. The passages there cited emphasize that such a decision is nearly invulnerable unless the court is satisfied that the trial Judge has not taken proper advantage of his opportunity to see and hear the witnesses, or has failed to appreciate the weight or bearing of established circumstances, or unless for some other reason the decision can be seen to be clearly wrong on grounds which do not depend merely on credibility: see also Abalos v. Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 and Devries v. Australian National Railways Commission (High Court - 6 May 1993 - unreported). Nevertheless, as was affirmed by the High Court after full debate in Warren v. Coombes [1979] HCA 9; (1979) 142 CLR 531, an appellate court may decide the proper inference to be drawn from established facts, and should not shrink from giving effect to its own conclusion, although it will give respect and weight to that of the trial Judge. The present case turns to a very great extent upon inferences, once the essential foundation of the general truthfulness of Mr Reich's account is accepted, as it was by the Master. Furthermore, several clear errors have been identified in the Master's reasoning. In our opinion, this Court should hold both that the plaintiff was a party to the conspiracy found by the Master, and that his injuries were suffered in a collision deliberately engineered in pursuance of that conspiracy, to which he had himself consented. It follows that there should have been a verdict for the defendant.

35. It would, of course, be possible to take the view that the Master's acceptance of the collision as a genuine accident should not be disturbed. On the basis that the plaintiff was a party to the conspiracy, the question would then arise whether a duty of care was owed at the relevant time by one party to the conspiracy (the defendant) towards another party jointly involved with him in the conspiracy (the plaintiff) whilst they were using the car in the furtherance of the conspiracy by driving around seeking a place to stage an "accident". There is, we think, no doubt that before the decision in Gala v. Preston (supra) the law was understood in a sense which would have denied that any duty of care could be said to have been owed by the defendant to the plaintiff in those circumstances. The crime was a serious crime. What was involved was not a mere breach of a safety regulation, as in Henwood v. The Municipal Tramways Trust (South Australia) [1938] HCA 35; (1938) 60 CLR 438 (which in any case did not involve joint criminal activity) or Progress and Properties Ltd v. Craft [1976] HCA 59; (1976) 135 CLR 651. Nor was it wholly without "bearing ... on the standard of care reasonably to be expected of the driver": Jackson v. Harrison [1978] HCA 17; (1978) 138 CLR 438 at 461, per Jacobs J. There was no reason to distinguish the situation from that which was held to deny a duty of care in Smith v. Jenkins [1970] HCA 2; (1970) 119 CLR 397; or from the situation in Godbolt v. Fittock (1963) SR (NSW) 617, which is succinctly explained by Jacobs J in Jackson v. Harrison (at 460). In the last mentioned case (at 457) Jacobs J cited his own earlier judgment in Progress and Properties Ltd v. Craft, which had received the approval of Stephen, Mason and Murphy JJ, where he had said (at 668):

"A plea of illegality in answer to a claim of negligence is a

denial that in the circumstances a duty of care was owed to

the injured person. A duty of care arises out of the

relationship of particular persons one to another. An

illegal activity adds a factor to the relationship which may

either extinguish or modify the duty of care otherwise owed.

A joint illegal activity may absolve the one party from the

duty towards the other to perform the activity with care for

the safety of that other. That, it seems to me, is the

effect of Smith v. Jenkins [1970] HCA 2; (1970) 119 CLR 397. Where there

is a joint illegal activity the actual act of which the

plaintiff in a civil action may be complaining as done

without care may itself be a criminal act of a kind in

respect of which a court is not prepared to hear evidence

for the purpose of establishing the standard of care which

was reasonable in the circumstances. A court will not hear

evidence nor will it determine a standard of care owing by a

safe blower to his accomplice in respect of the explosive

device. This is an example which gives no difficulty, but

other cases can give difficulty in classification."

In Jackson v. Harrison (at 457) Jacobs J commented as follows:

"I adhere to that statement. I think that it is correct to

base the defence upon a denial of a duty of care in the

particular circumstances rather than upon a denial of remedy

for a breach of the duty of care. A legal duty of care

presupposes that a tribunal of fact can properly establish a

standard of care in order to determine whether there has

been a breach of the duty of care. If the courts decline to

permit the establishment of an appropriate standard of care

then it cannot be said that there is a duty of care."

36. In applying these principles to the present case, it would be necessary to ask whether the court could properly establish a standard of care to be exercised by the defendant in the driving of the car, having regard to his dual function under the criminal agreement of driving his co-conspirators and at the same time searching for an appropriate spot at which to have an "accident". How far should he have allowed the latter function to engross his attention? Bearing in mind the way in which the collision at Queanbeyan had been precipitated, could he have relied with contractual propriety upon an implied term that an opportunity to achieve at once the purpose of the contract might be availed of if it arose? It would not be consistent with the law as Jacobs J stated it for a court to consider either of these matters. There would be something bizarre about asking what the reasonable criminal would say in testy reply to an officious bystander, or whether the court should imply into a criminal contract a term to give it business efficacy. The law of contracts was not created to regulate conspiracies, but engagements entered into under the law. These questions would not be satisfactorily answered by saying that the driver's dual functions should not have the effect of lessening the standard of care owed by him, or that no relevant implication should be made in the criminal compact. (The latter answer could only be given after construing and attributing force to the conspiratorial agreement, a proceeding which would be contrary to the true meaning of the maxim ex turpi causa non oritur actio, as expounded by Windeyer J in Smith v. Jenkins (at 410-412).) The point is that the court should decline to entertain the consideration of such questions. When the parties entered into the conspiracy and set out together in the car to fulfil the engagements of it, they established between themselves a relationship of a special nature which did not give rise to a relevant duty of care.

37. The problem arises whether Gala v. Preston (supra) has changed all this. In the first place, it is to be noted that no member of the High Court declared any of the cases we have mentioned no longer to represent the law. The joint judgment of Mason CJ, Deane, Gaudron and McHugh JJ records (at 248) a submission that Smith v. Jenkins should be overruled, but it does not state that the submission was acceded to. The joint judgment (at 249-250) summarizes the principle upon which Smith v. Jenkins was decided as follows:

"Although the ratio of the decision is not altogether clear,

it is best treated as deciding that, in the circumstances,

no relevant duty of care arose on the part of the defendant

to the plaintiff by reason of their participation in a joint

illegal enterprise. ...

But it would be wrong to regard the case as authority

for the proposition that in all circumstances the

participation of plaintiff and defendant in a joint illegal

enterprise will negate the existence of a duty of care on

the part of the defendant to the plaintiff, even when the

alleged breach of duty arises in the execution of the

criminal act. ..."

Reference is then made to breaches of safety regulations. There is a discussion of Progress and Properties and Jackson v. Harrison, in which the joint judgment points out (at 252) that in Jackson v. Harrison Jacobs J distinguished Smith v. Jenkins

"on the ground that it concerned a relevant joint criminal

enterprise of a serious kind beginning with the theft of

money, the car keys and the car itself. The criminal

enterprise was such that it was not possible to determine a

standard of care for such a course of criminal activity."

38. The joint judgment concludes (at 252-255) by taking "account of developments affecting the concept of the duty of care" since the earlier cases were decided. What their Honours were referring to was the elaboration of the notion of proximity as providing "a general limitation upon the test of reasonable foreseeability" (San Sebastian Proprietary Limited v. Minister Administering the Environmental Planning and Assessment Act 1979 [1986] HCA 68; (1986) 162 CLR 340 at 355), so that "a relevant duty of care will arise only (emphasis added) in a case where the requirement of a relationship of proximity between the plaintiff and the defendant is satisfied" (Cook v. Cook [1986] HCA 73; (1986) 162 CLR 376 at 381). The determination by the use of this concept that a case falls within a category to which a duty of care attaches enables the appropriate "standard of the reasonable man" (Cook v. Cook at 382) to be applied; but there is no standard of the reasonable participant in an activity constituting a serious crime. The joint judgment (at 253) puts it this way:

"The requirement of proximity constitutes the general

determinant of the categories of case in which the common

law of negligence recognizes the existence of a duty to take

reasonable care to avoid a reasonably foreseeable and real

risk of injury. In determining whether the requirement is

satisfied in a particular category of case in a developing

area of the law of negligence, the relevant factors will

include policy considerations. Where, as in the present

case, the parties are involved in a joint criminal activity,

those factors will include the appropriateness and

feasibility of seeking to define the content of a relevant

duty of care. Thus, it would border on the grotesque for

the courts to seek to define the content of a duty of care

owed by one bank robber to another in blowing up a safe

which they were together seeking to rob. On the other hand,

to take an extreme example the other way, it would be unjust

and wrong for the courts to deny the existence of the

ordinary relationship of proximity which exists between the

driver of a motor vehicle and a passenger merely because the

driver was, with the encouragement of the only passenger,

momentarily driving in a traffic lane reserved for the use

of cars with three or more occupants."

39. The joint judgment proceeds (at 254-255) to apply the principle to the facts of the particular case, which involved the theft and use of a motor car by several very drunk criminals acting jointly. The obvious risks, including the possibility (which it is not suggested was an actuality) of police pursuit, bring their Honours to the conclusion that "the participants could not have had any reasonable basis for expecting that a driver of the vehicle would drive it according to ordinary standards of competence and care". The joint judgment concludes:

"In this situation the parties were not in a relationship of

proximity to each other such that the first appellant, as

the driver of the vehicle, had a relevant duty of care to

the respondent, as a passenger in the vehicle. In the

circumstances just outlined, it would not be possible or

feasible for a court to determine what was an appropriate

standard of care to be expected of the first appellant as

the driver of the vehicle. To conclude that he should have

observed the ordinary standard of care to be expected of a

competent driver would be to disregard the actual

relationship between the parties as we have described it.

To seek to define a more limited duty of care by reference

to the exigencies of the particular case would involve a

weighing and adjusting of the conflicting demands of the

joint criminal activity and the safety of the participants

in which it would be neither appropriate nor feasible for

the courts to engage."

40. In this passage we do not understand the word "possible", in the expression "possible or feasible", to add anything. "Possible" is, of course, very nearly a synonym for "feasible"; in standard English "feasible" may be the word of choice (as its French root suggests) where the possibility of doing something is being considered, as distinct from possibility in a more general sense. What is more important is the distinction drawn between the feasibility and the appropriateness of the court setting a standard of care, although the distinction is blurred when the joint judgment says "it would not be possible or feasible for a court to determine what was an appropriate (emphasis added) standard of care". Whatever is meant by a test of the feasibility of setting an appropriate standard of care, there is no doubt the joint judgment declares that it may be inappropriate, at least in some cases, for a court to seek to define a duty of care by reference, in part, to the demands of a joint criminal activity. And the judgment specifies the driving of a stolen car so as to evade the police and the blowing up of a safe by bank robbers as examples.

41. The examples given in the joint judgment in Gala v. Preston are illuminating. In each case, it is not the hazardous nature of the activity which denies that it is appropriate or feasible to fix a standard of care, although the difficulties of the bank robbers' task in many cases are obvious, and the additional risks of driving a car to evade pursuit are specifically mentioned in Gala v. Preston. To pursue the same illustrations, if honest people were blowing open a safe because the key had been lost and its opening was a matter of urgency, no one would see any difficulty, in point of principle, in defining the content of the duty of care owed by a participant in the task; and if the car was being driven at speed, not to evade pursuit, but in pursuit of a murderous kidnapper of a child, there would likewise be no difficulty in point of principle, however anguished a decision on the facts might be. In neither case would it be said that it is not feasible to fix a standard of care. The difficulty, in both cases, about fixing the standard and defining the duty, is fundamental to the nature of law; it has nothing to do with the details of the robbers' sordid work, or the emergency of the situation faced by the driver. What the examples have in common is rather indicated in the joint judgment by the word "appropriate"; it is that the law cannot regulate the incidents of crime, as if it were a lawful activity. To attempt to do so would be "grotesque", as the joint judgment puts it at 253; something to which "(n)o Court will lend its aid", as Lord Mansfield CJ put it in Holman v. Johnson [1775] EngR 58; (1775) 1 Cowp 341 at 343; [1775] EngR 58; 98 ER 1120 at 1121. What it is not feasible to do is to define an appropriate standard of care - for none can be appropriately defined in respect of such a task. Nor, in principle, can it matter whether, if the court were to enter upon the task, it would find the criminal actor in a position of special difficulty, so that a standard other than the ordinary standard would be appropriate if the activity were lawful, or whether the court would find the criminal actor in a position of no particular difficulty (as in Godbolt v. Fittock - see per Sugerman J at 620), so that if the activity were not criminal the standard of care to be expected would be the normal one. Equally in each case, the particular standard which would appear to be applicable would so appear to be applicable only by taking into account and evaluating the incidents of the criminal activity upon which the parties were jointly engaged. The earlier example of the safe again assists; if thieves removed a safe to a perfectly secure location where every suitable device to assist in the task of opening it was available, the nature of the activity would still preclude a legal duty of care being recognized, so that the relationship between the thieves would be denied the legal quality of proximity.

42. We have been considering the matter by reference to the principles set out in the joint judgment, which is the judgment of the majority of the High Court. It reaches its ultimate decision upon a quite narrow basis, applicable to the particular facts of that case. It does not purport to overrule the earlier cases. It superimposes upon them an analysis utilising the concept of proximity, but without altering the conclusion that the relevant effect of joint criminal conduct is exerted upon the duty of care (as Smith v. Jenkins decided and as Jacobs J emphasized in Progress and Properties Ltd v. Craft (ubi cit. supra - a passage specifically looking to the relationship between the participants, the matter crucial to proximity) and in Jackson v. Harrison at 457), and without altering the established categories for determining whether that effect will be fatal to an action in a particular case. Brennan J did not think the concept of proximity was useful in this context, and would have decided the case upon the principle that "the civil law cannot condone breaches of the criminal law" (at 270). But he would have limited that principle to cases of serious crime where condonation of the offence would impair "the normative influence of the law" (at 271). Dawson J, while recognizing the qualifications contained in earlier cases, thought "the refusal of the law to condone the commission of a criminal offence by granting a civil remedy" (at 277) was not subject to the general limitation stated by Brennan J Toohey J applied the earlier decisions to bar a remedy in cases of this kind where "the injury to the plaintiff arises from a serious criminal act in which both plaintiff and defendant participated" (at 291).

43. Common to the joint judgment and each of the other judgments is the view that the previous case law, which the joint judgment restated in terms of proximity, Brennan and Dawson JJ explained, and Toohey J substantially accepted as it stood, did lay down a rule providing a defence applicable to cases of joint participation in serious crime. While the explanations of the rule differed, its effect in cases such as the present was consistently stated in terms which would require the allowance of the appeal.

44. In our opinion, the appeal should be allowed with costs; the judgment below should be set aside, and in lieu thereof the appeal from the Master should be allowed with costs; and the decision of the Master should be set aside, and in lieu thereof the plaintiff's action should be dismissed with costs.