Smith v Jenkins

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

I have had the advantage of reading the reasons for judgment prepared in this appeal by my brother Windeyer. I am generally in accord with such of those reasons as lead to the conclusion which I have endeavoured to express for myself. His Honour's full discussion of the matter has rendered it unnecessary for me to do more than express my own conclusion as I have done. In my opinion, the appeal should be allowed.

The respondent has recovered a judgment against the appellant in the Supreme Court of Victoria [1] for damages in respect of personal injuries caused by the appellant's carelessness in the driving of a motor car in which the respondent was a passenger. At the trial it was proved that the appellant's driving of the car at the material time was part of an illegal activity in which the parties were jointly engaged, for they were proved to be acting in concert at that time in using the car in the manner in which it was being used without the consent of the owner or person in lawful possession thereof and by so doing were jointly committing a misdemeanour under s. 81 (2) of the Crimes Act 1958 Vict..

Upon appeal to this Court the appellant contends that, by reason of the illegality of the activity which included the careless driving complained of, the Supreme Court should have held that the respondent had no cause of action against him. At the outset I must observe that the question thus raised is essentially different from that which the Court had before it in Henwood v. The Municipal Tramways Trust (S.A.) [1] . That was a case of unilaterial illegality on the part of the person injured. His injury would not have occurred if he had not been leaning out of the window of a tramcar in breach of a by-law, and the Court held that the question whether his breach of the by-law disentitled him to succeed was a question depending upon the true construction of the by-law - whether the intention to be discovered in it was to absolve the tramway authority from the duty of care which otherwise it would have owed passengers when leaning out of windows, or was only to afford passengers a protection against their own folly by imposing a prohibition enforceable by a penalty but not affecting civil rights or responsibilities. Here there is no such question to consider, for both parties, in their relevant conduct, were committing a breach of s. 81 (2) and the materiality of that provision is simply that it made illegal the use of the car, including both the appellant's driving and the respondent's complicity therein. The determination of the appeal depends, in my opinion, not at all upon searching in or behind s. 81 (2) for an intention to abrogate or preserve civil rights and responsibilities, but wholly upon the relevant general principle of the common law. In effect it is simply whether Lord Asquith's suggestion in National Coal Board v. England [2] was right, that if two burglars, A and B, agree to open a safe by means of explosives, and A so negligently handles the explosive charge as to injure B, B cannot maintain an action for negligence against A.

1. (1938) 60 C.L.R. 438. 2. [1954] A.C. 403, at p. 429.

The question is also to be distinguished, I think, from that to which Dixon and McTiernan JJ. adverted in the course of their judgment in Henwood's Case [3] , namely whether an illegality has prevented the creation of a special relationship between the parties upon which a plaintiff relies for the duty of care which he charges the defendant with having failed to observe. Their Honours took the illustration offered by Scrutton L.J. in Hillen v. I.C.I. (Alkali) Ltd. [1] :

A owns a house to which his confederates, B and C, bring smuggled kegs of brandy, to be lowered into A's cellar by a rope which A knows to be defective. It breaks and injures B waiting in the cellar for the keg. Plainly, as his Lordship thought, B could not recover from A under the authority of Indermaur v. Dames [2] for failing to warn him of the trap. The principle for which Indermaur v. Dames [2] is the leading authority applies where the relationship of invitor and invitee has been created by the acceptance of an express or implied invitation from an occupier of premises to enter the premises upon lawful business in which both parties have an interest. An invitation to enter for the purpose of assisting the occupier in concealing goods known by both parties to have been smuggled could not be relied upon as validly creating the relationship, and that was the point which Dixon and McTiernan JJ. were making. In the present case, however, the duty of care which the respondent complains that the appellant owed him and failed to discharge is not of a kind that flows from a relationship created by a lawful consensus. It is the general duty of care arising under the doctrine of Donoghue v. Stevenson [3] by virtue of de facto proximity of the parties to one another - not necessarily, of course, a merely physical proximity, but such a close and direct relation to one another that the party against whom the duty of care is alleged, when directing his mind to the act which in the event is complained of, ought reasonably to have the other in contemplation as likely to suffer injury from a failure to take reasonable care for his safety in considering whether and how to do that act: Donoghue v. Stevenson [4] . The relation between the appellant and the respondent here was the physical relation of proximity which exists between persons of whom one is driving a motor car and the other is travelling in it as a passenger. The likelihood of the respondent's being injured by carelessness in the driving was the same as it would have been if the parties had been using the car lawfully. They were "neighbours" in the Donoghue v. Stevenson sense of the word, for in that sense the word has no legal content. 1. (1938) 60 C.L.R., at p. 465. 2. [1934] 1 K.B. 455, at p. 467. 3. (1866) L.R. 1 C.P. 274. 4. (1866) L.R. 1 C.P. 274. 5. [1932] A.C. 562. 6. [1932] A.C., at pp. 580, 581.

But although the case is not one where the illegality that is in question has prevented the creation of a relationship upon which the party claiming damages relies as the source of a duty of care, it is a case falling within the reason which Scrutton L.J. himself gave for his opinion in the supposed case of the smugglers, namely that "the whole transaction is known by each party to be illegal and there is no contribution or indemnity between joint wrongdoers" [Hillen v. I.C.I. (Alkali) Ltd. [1] ]. Plainly, his Lordship was accepting the principle upon which in Henwood's Case [2] all the members of this Court were agreed, that it is not a complete answer to a claim for damages for personal injury that at the material time the plaintiff was acting unlawfully. If, to take a strong example, the respondent in the present case had been an escaped convict travelling in the car in order to elude lawful pursuit but the appellant had been driving him in all innocence, the appellant would, I should think, have owed the respondent the same duty of care as he would have owed an ordinary passenger. The respondent would not have been caput lupinum (as Latham C.J. expressed it [3] ). But it seems equally clear that Scrutton L.J. perceived a general principle of law and thought it apposite to his illustration, namely that persons who join in committing an illegal act which they know to be unlawful (or, I should add in the language of the judgment in Adamson v. Jarvis [4] , which they must be presumed to know to be unlawful) have no legal rights inter se by reason of their respective participations in that act.

1. [1934] 1 K.B., at p. 467. 2. (1938) 60 C.L.R. 438. 3. (1938) 60 C.L.R., at p. 446. 4. (1827) 4 Bing. 66, at p. 73 [130 E.R. 693, at p. 696].

In my opinion that is the principle that governs the present case. The underlying reason of it, I think, is that in such a case the law regards the joint illegal conduct as the commission of a single wrong of which, as a whole, each participant is guilty. A modern affirmation of this doctrine is to be found in the judgment of the Privy Council in Surujpaul v. The Queen [5] , and an illustration of it is provided by the case of Saqui and Lawrence v. Stearns [6] , where the Court of Appeal held that a porter who in pursuance of a pre-arranged scheme admitted a thief to premises to enable him to steal goods in the premises was himself guilty of the theft, notwithstanding that he was absent when the goods were taken.

1. [1958] 1 W.L.R. 1050. 2. [1911] 1 K.B. 426.

It is upon this principle, as it seems to me, that Lord Asquith's opinion in the hypothetical case of the two safe-breakers should be accepted as sound. The hypothesis was that the careless handling of the explosive charge was part and parcel of the illegal course of conduct of which each party was guilty. The law could not, consistently with that proposition, give a right of action to one party against the other on the footing that that other's acts were his alone. I must guard against being understood as thinking that each participant in joint wrongdoing takes the risk of negligence on the part of his accomplices in the course of the joint wrongdoing, for I do not think that the principle rests upon any idea of assumption of risk. It rests, in my opinion, upon the legal inseverability, for the purposes of responsibility, of the acts which several persons knowingly contribute to the joint commission of a wrong. This I take to be what Lord Lyndhurst meant when he said in Colburn v. Patmore [1] that he had little doubt that a person who is declared by the law to be guilty of a crime cannot be allowed to recover damages against another who has participated in its commission.

1. (1834) 1 C. M. & R. 73, at p. 83 [149 E.R. 999, at p. 1003].

In my opinion the respondent, by reason of his complicity in the illegal driving which caused his injury, should have failed in his action. As Jacobs J.A. said in Bondarenko v. Sommers [2] ;

The illegal act complained of was the taking and using of a motor vehicle and it is the using of the motor vehicle which is complained of as having been done negligently. Thus the actual act complained of as done negligently is itself the criminal act in which both plaintiff and defendant were engaged. I agree in this application of what I conceive to be the true principle of the common law, and I think it sufficient to dispose of the appeal without the sentence that follows immediately in his Honour's judgment. 1. (1968) 69 S.R. (N.S.W.) 269, at p. 277.

No doubt the appellant's mental condition, if not his lack of means, makes it of no practical relevance to add, though I shall add it as enforcing the point I have been making, that if the respondent is to receive any compensation for what happened to him in the course of the stolen ride he must rely, as others before him have been told they must do [Gluckstein v. Barnes [3] ], upon an appeal to that sense of honour which is popularly supposed to exist among thieves.

I agree that this appeal should be allowed and that in the action judgment should be entered for the defendant.

This is an appeal from a judgment of Starke J. in the Supreme Court of Victoria, in an action for negligence. The case was tried without a jury. It raised debatable questions of law. His Honour reserved his decision and delivered a considered judgment on 5th September 1968 [Jenkins v. Smith [4] ], the matter having been heard by him in the preceding month. The events out of which the action arose had occurred some three and a half years before then, namely on 3rd April 1965.

In the evening of that day the plaintiff and the defendant and two other youths named Henderson and Windmill, all about sixteen years of age, went together to a hotel in Ballarat where they drank beer. At some time later in the evening, after visiting a fish shop and a bowling alley, they went to a public lavatory behind the old town hall. There they came upon a man named Hicks, apparently not previously known to them. They jostled and punched him and the plaintiff went through his pockets and robbed him of three one pound notes and his car keys. They forced him to shew them where his car was parked in the street; and they then made off in it, leaving him in the street. They drove away from Ballarat along the Ross Creek road. Where they were making for does not appear from the material before us. The plaintiff was driving when they started. After they had gone about four miles Windmill took a turn for a short time. Then the defendant took the wheel and drove on at about eighty or ninety miles an hour. When approaching the Glenelg Highway near Smythesdale, the plaintiff is said to have warned the defendant to slow down. He did not do so. The car ran off the road and hit a tree. The four youths were all knocked unconscious. The plaintiff was badly hurt. The defendant suffered severe brain damage. He is in a mental institution. He was unable to give evidence at the hearing. He defended the case by his guardian ad litem, who now brings this appeal as his next friend. Those are the essential facts as found by his Honour.

The plaintiff in his evidence gave a very different account of the events which happened before he and his companions went off in Hicks' motor car. He said that Hicks had made indecent gestures in the lavatory followed by indecent suggestions to him. His Honour expressly found this evidence was false. And he said:

I am quite satisfied that Hicks gave a truthful account of what happened that night. I found him a most satisfactory witness, I found the three youths equally unsatisfactory. Accordingly, I am quite satisfied that the plaintiff and the defendant and the other two youths for that matter, were illegally using the car at all relevant times. Hicks in fact went at once to the police station and complained that his car had been stolen, that he had been robbed and physically hurt by being punched. His injuries were sufficiently serious to cause him to be kept in hospital overnight. The plaintiff was afterwards charged and convicted of illegally using a motor car and of robbery with violence. These proceedings were apparently held in the Children's Court at Ballarat because of the plaintiff's age. Starke J. noted the conviction as a fact proved before him; but he did not treat the conviction as of itself establishing that at the time of the accident the plaintiff was committing an offence under s. 81 of the Crimes Act. The rule in Hollington v. F. Hewthorn & Co. [1] , seemed to stand in the way of his Honour's doing that. The Court of Appeal has recognized that that decision is "ripe for re-examination": Barclays Bank Ltd. v. Cole [2] ; Goody v. Odhams Press Ltd. [3] . However, we are not called upon to examine it in this case; for the evidentiary value of the conviction does not arise. The offences of illegally taking and using the motor car were amply proved by the evidence of Hicks which his Honour accepted. It is hard to see how, even if any credence were given to what the plaintiff and his companions said, their allegations of conduct in the lavatory could mitigate that offence. Indecent remarks by a motor car owner cannot justify the stealing of his car. 1. [1943] 1 K.B. 587. 2. [1967] 2 Q.B. 738, at p. 746. 3. [1967] 1 Q.B. 333.

Turning now from the antecedent facts to the issues at the trial. The plaintiff by his statement of claim alleged that he was a passenger in the car driven by the defendant; that it left the roadway and collided with a tree; that the collision was caused by the negligence of the defendant; that he, the plaintiff, suffered bodily injuries, loss and damage.

The defendant by his defence formally denied negligence. However, it was conceded at the trial that the defendant had been negligent and that his negligence was the cause of the harm which the plaintiff suffered; but it was said that the plaintiff had no right of action. The matters relied upon for the defendant as relieving him of liability were as follows: that he and the plaintiff and their two companions had obtained possession of the motor car by a felony, robbery with violence, or alternatively, robbery in company; that they were at the time of the accident "fleeing from the scene of the said felony": and further that the use of the car was, in the circumstances, an offence under s. 81 (2) of the Crimes Act 1958 Vict.. These facts, it was said, meant that "for reasons of public policy" the plaintiff could not recover damages from the defendant. It was also alleged for the defendant that the plaintiff had permitted him to drive the car knowing him to be intoxicated; in this the defendant in effect said volenti non fit injuria: he also relied upon the same matters to raise a defence of contributory negligence.

The plaintiff by his reply joined issue on facts alleged by the defendant, alleged some matters in avoidance, and challenged the validity as a defence of the defendant's allegation of illegal conduct.

The learned trial judge in his judgment said, "there is, in my opinion, no reliable evidence to which the defendant can point to make out his plea of volenti on the basis of the intoxication of the defendant". For similar considerations he rejected the plea of contributory negligence. The evidence that the plaintiff and the defendant and their companions were fleeing from the scene of a crime was abandoned by the defence at the trial. However, the evidence established without any doubt that they were engaged in a crime when the accident occurred. They were committing an offence under s. 81 (2) of the Crimes Act. The defence turned on the effect of this fact. Section 81 is as follows:

(1) Any person who steals any motor car shall be guilty of felony and shall be liable to be imprisoned for a term of not more than ten years.

(2) Any person who takes or in any manner uses or attempts to take or in any manner use any motor car without the consent of the owner or person in lawful possession thereof shall be guilty of a misdemeanour and shall be liable for a first offence to a fine of not more than One hundred pounds or to be imprisoned for a term of not more than twelve months or to both such fine and imprisonment, and for a second or any subsequent offence to be imprisoned for a term of not more than five years.

The offence created by s. 81 (2) is a form of stealing in the ordinary sense of that word. In some jurisdictions, in Canada especially, it is indeed commonly called stealing. But in the Act the word "steal" is used to mean larceny, larceny of a motor car being punishable under s. 81 (1). The offence under s. 81 (2) falls short of larceny in that it does not involve an intent permanently to deprive the true owner of his property. It is enough if a motor car be, without the consent of the owner, by a euphemism, merely "borrowed" for a joy-ride. But that does not mean that the offence under s. 81 (2) is to be considered venial, a mere peccadillo. It is a crime punishable on indictment. It appears in Div. 2 of the Act, headed "Larceny and Similar Offences".

Starke J. said that, if it were necessary so to hold, he had no doubt that the plaintiff and the defendant were acting in concert in committing the offence under s. 81 (2). That clearly was so. Moreover, the offence is a misdemeanour, and in misdemeanour any aider or abettor is just as much a principal as the person who actually does the unlawful act: see Du Cros v. Lambourne [1] ; and per Jordan C.J. in Ex parte Coorey [2] , and R. v. Crossley [3] . The critical question in the case thus was whether the plaintiff's participation with the defendant in crime precluded him recovering damages from the defendant. What are the principles to be applied for the resolution of that question? That was the problem which his Honour had to face. Decisions were conflicting. Dicta were indefinite. His Honour, after a careful review and discussion of the authorities, decided that the plaintiff was entitled to recover. He firmly rejected a proposition that, by reason of certain general considerations said to constitute public policy, the Court should deny the plaintiff a remedy. He said that he did not question the cogency of those considerations, but said:

On the other hand it seems to me that there is another question of public policy arising, namely, that it is the policy of the legislature that persons injured in road accidents should be compensated by a fund created under the compulsory third party insurance legislation where injury from negligence occurs, and that such persons should not become a charge on the State as otherwise they might. After all, the real gist of the plaintiff's action is the negligence of the defendant. The illegal use of the car plays no part in the cause of action save as a sine qua non. Where there are competing questions of public policy, if there are, the one which it is contended operates as a bar must, in my opinion, be very plainly spelt out [4] . 1. [1907] 1 K.B. 40. 2. (1944) 45 S.R. (N.S.W.) 287, at pp. 295, 296. 3. (1948) 48 S.R. (N.S.W.) 494, at p. 495. 4. [1969] V.R., at p. 276.

Having found that the plaintiff was entitled to recover, his Honour assessed his damages at $11,379.71, which amount included $1,379.71 special damages for expenses actually incurred.

The defendant now appeals to this Court. The grounds taken in his notice of appeal (somewhat abbreviated and in part paraphrased) are as follows:

(a) that because the appellant and respondent were at the time of the accident jointly engaged in using the motor car in contravention of s. 81 (1) the respondent was precluded upon grounds of public policy from recovering damages from the appellant;

(b) his Honour was wrong in holding that the maxim ex turpi causa non oritur actio did not apply;

(c) his Honour was wrong in holding that the provisions of the Motor Car Act 1958 Vict. relating to compulsory insurance were a relevant consideration of public policy supporting the conclusion that the plaintiff should receive compensation for his injuries by third party insurance whether or not they were suffered in the course of committing a crime.

There is no appeal against his Honour's decision that neither volenti nor contributory negligence availed the defendant.

The third of the grounds as stated above may be disposed of at once. It seems to be based on a misunderstanding of the purport of his Honour's remark, which was made in response to a question begging reference to various ill consequences which it was said would come if people were allowed to recover damages for harm arising out of and in the course of their committing crimes. His Honour was invited to apply to this his own view of what public policy required. In rejecting this approach as a usurpation of a legislative function, he made the remark which the appellant condemns. If his Honour meant that the policy and purpose of statutory obligations of insurance against motor vehicle accidents can determine common law liabilities, I agree that this would have been a mistake. But I do not think he meant that.

It is a matter of common experience for courts that nowadays many negligence actions are brought against the owners or drivers of motor cars by passengers who in earlier days would have been deterred from doing so by benevolence, or by knowledge that a verdict would be fruitless. Goodwill does not extend to insurance companies. But the indemnity given by insurance is against a legal liability: and liability still depends on fault, actual or imputed. It may be that in this part of the law emphasis is changing, and may in the future be drastically changed by statute. Many people hope so, and that I can well understand. They see the main social purpose of awards of damages as compensation for harm suffered. They would like this to be met by some scheme of general insurance and not depend on liability for fault. But as things are, the policy behind statutes which make insurance against liability for negligence compulsory must be seen as to ensure that all defendants meet their liabilities: it is not that all plaintiffs are to be compensated for their sufferings.

Recent editions of Salmond on Torts say of the position of a plaintiff who is a wrongdoer,

This is a rather obscure corner of the law. Confusion has been increased by the use of the maxim ex turpi causa non oritur actio, which has its proper field of application in the law of contract. That observation, by Professor Heuston, I enthusiastically endorse. The intrusion of this Latin maxim into learned commentary, and also into judgments, has caused a confusion which would not have occurred if the writers had condescended to translation and had not taken the maxim into territory where it does not belong. It need not then have become "recondite topics about which there is much learning", as Salmon L.J. recently called it: see Lane v. Holloway [1] . We would not have been troubled by such a question as, does the maxim state a doctrine of the law of tort. For what does it mean? A common translation is that offered by Wharton's Law Lexicon (1847): "an action arises not from a base cause". But to read "cause" as here meaning cause of action is to make the phrase periphrastic. The word "causa" has a range of meanings in Latin: but the maxim can only be properly understood if it be there given its legal sense, appropriate to the context. Those who would explain common law principles by exotic Latin maxims ought surely to remember that these are to be understood secundum subjectam materiam. So understood, the expression "turpis causa" cannot apply in the law of torts. One might as well ask whether the principle of valuable consideration has any place there. I do not mean by that to equate causa of the civil law with consideration of the common law. The view that they are one and the same has had exponents, notably de Villiers C.J. last century in speaking of the Roman-Dutch law of South Africa. But his view has since been rejected, decisively, and with great learning, by the Supreme Court of South Africa in the case of Conradie v. Rossouw [2] , and in cases which have followed it. A complete assimilation of causa with consideration cannot now be accepted. I shall not attempt to look at this topic in great depth. I lack the learning to do so, and I doubt the relevance of doing so here. Those who are interested to go deeply into the matter will find good starting points in Holdsworth, History of English Law, viii, pp. 42-47; Lorenzen, Causa and Consideration in the Law of Contracts Yale Law Journal (1919), 28621 ; Walton, Cause and Consideration in Contract Law Quarterly Review (1925), 41306 ; Ryan, An Introduction to the Civil Law (1962), pp. 44-49; Buckland and McNair, Roman Law and Common Law (1965), pp. 223-236; in the South African decision I have mentioned; and, most recently, Barton, The Early History of Consideration Law Quarterly Review (1969) 85372 . I venture only some cursory comments in explanation of my attitude. 1. [1968] 1 Q.B. 379, at p. 388. 2. [1919] S.A.L.R. A.D. 279.

The word "causa", and notions it embodies drawn from Roman law, got a place in mediaeval canon law. Through canonical influence the word apparently gained some currency in England in the Court of Chancery in the sixteenth century: see Vinogradoff, Reason and Conscience in Sixteenth Century Jurisprudence Law Quarterly Review (1908), 24373, at pp. 381-384 . For canonists the word "causa" came to mean a just motive for making a promise or agreement, providing a sufficient reason why it must not be broken. In a very general way causa in modern civil law does resemble valuable consideration in English law. They can be likened as the vestment which clothes what would otherwise be a naked promise, nudum pactum; so that for the civil law a cause is effective, as for the common law consideration or a seal is, to displace the maxim ex nudo pacto non oritur actio. Causa is, however, more available as a dress for the clothing of an agreement than is valuable consideration; for its varieties and dimensions are more generous: see Jayawickreme v. Amarasuriya [1] , a case depending on the Roman-Dutch law of Ceylon. But, although a pact is not nude if clothed by causa, it must be a iusta causa: a turpis causa will not do, any more than an illegal or immoral consideration will support a contract. It is pertinent to notice here the condictio ob turpem causam of the classical Roman law of quasi-contract. But there again we are in the area of obligations, not of delicts. The word "cause", "la cause", derived from causa, has a place in the law of France today. It appears in the Civil Code. There "its precise meaning has aroused passionate controversy": Amos and Walton, Introduction to French Law, 2nd ed. (1963), p. 166. What is of some interest, for present purposes, is the provision in Art. 1131 of the Code that a "cause illicite" has no legal effect - a statement which can be put alongside the Roman law of the Digest (2, 14, 27, s. 4), "pacta quae turpem causam continent non sunt observanda". In the law of Scotland too the Latin maxim has its place in the law of contract among pacta illicita.

My purpose in what I have said so far is to emphasize that for classical Roman law, and in modern civil law jurisdictions, causa is an element of the law of contract, or in some cases of dispositions of property. The maxim ex turpi causa non oritur actio can be given a place in our law of contract if it be taken as meaning that an illegal or immoral consideration will not support a contract, or that a contract entered into to give effect to an unlawful or immoral purpose will not be enforced. In a well-known passage in Alexander v. Rayson [1] , the Court of Appeal quoted the maxim in the latter connexion: and in Brown Jenkinson & Co. Ltd. v. Percy Dalton (London) Ltd. [2] , that case was followed: but Lord Evershed M.R., dissenting, remarked that "the well-known Latin formula at least requires translation" [2a ] .

1. [1936] 1 K.B. 169, at p. 182. 2. [1957] 2 Q.B. 621. 3. [1957] 2 Q.B., at p. 640.

Lord Lindley, then Lindley L.J., stated the principle broadly in Scott v. Brown, Doering, McNab & Co. [3] :

This old and well-known legal maxim is founded in good sense, and expresses a clear and well-recognized legal principle, which is not confined to indictable offences. No court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the court, and if the person invoking the aid of the court is himself implicated in the illegality. It matters not whether the defendant has pleaded the illegality or whether he has not. If the evidence adduced by the plaintiff proves the illegality the court ought not to assist him. If authority is wanted for this proposition, it will be found in the well-known judgment of Lord Mansfield in Holman v. Johnson [4] . His Lordship was speaking there of an action based upon an illegal contract. His phrase "obligations alleged to arise out of a contract or transaction which is illegal" obviously refers to contracts or other transactions between parties. It does not refer to an action arising simply ex delicto. In Holman v. Johnson [4] Lord Mansfield said: "The cause of action appears to arise ex turpi causa". The action was in assumpsit, for goods sold and delivered: and as Professor Keeton has written, Lord Mansfield, as a Scotsman, looked instinctively to Roman law for comparisons with the common law, more especially as Pothier's great treatise on Contract of Roman Law had just appeared. It was not unnatural, therefore, that he should be inclined to equate consideration with causa, more especially since this would also be capable of embracing consideration in mercantile contracts: Elementary Principles of Jurisprudence, 2nd ed. (1949), p. 405. 1. [1892] 2 Q.B. 724, at p. 728. 2. (1775) 1 Cowp. 341, at p. 343 [98 E.R. 1120, at p. 1121]. 3. (1775) 1 Cowp. 341, at p. 343 [98 E.R. 1120, at p. 1121].

I can conclude references to the use of the maxim in its proper setting, the law of contract, by noticing that in 1829 it was, in that setting, called by the Supreme Court of the United States "the familiar maxim": Bank of the United States v. Owens [5] .

1. (1829) 2 Peters 527, at p. 539 [7 Law Ed. 508, at p. 512].

Counsel for the defendant pointed to cases in which the phrase "ex turpi causa" has been used in actions of tort. He said, in effect but not in terms, that we should take the maxim as there referring, not to a turpis causa, but to a turpitudo and that in that sense it has a place in the law of torts.

The question was directly raised in the Queen's Bench Division of Ireland in the miserable case of Hegarty v. Shine [1] , and on appeal to the Irish Court of Appeal [2] . There the plaintiff was a woman who became infected with venereal disease by the defendant, whom she, not knowing of his condition, had permitted to have intercourse with her. She sued him for assault. A majority in the Queen's Bench Division said that the action could not be sustained because it arose ex turpi causa. May C.J., who dissented, said: "That principle, I think, governs cases of contract But the present case is founded on tort" [3] . The judgment of the majority was upheld in the Court of Appeal, where Palles C.B. said:

I am of opinion that the cause of action here is a turpis causa, incapable of being made the foundation of an action. The cause of action is the very act of illicit sexual intercourse [4] . With great respect for what that learned judge said, it seems to me that this verges on the mistake of translating "causa" as "cause of action". However, his Lordship later made clear what I think was the real basis of his decision: Every contract relating to this act of illicit intercourse is turpis, because the act itself is turpis; and as the contract cannot support an action because it is turpis, neither, a fortiori, can the turpis act itself [5] . The decision turned really on the case having originated in an immoral arrangement. It is not a warrant for deciding a question of liability in tort in Australia today by resorting to a maxim of the Roman law of contract. 1. (1878) 2 L.R. Ir. 273. 2. (1878) 4 L.R. Ir. 288. 3. (1878) 2 L.R. Ir., at p. 284. 4. (1878) 4 L.R. Ir., at p. 299. 5. (1878) 4 L.R. Ir., at p. 300.

Fivaz v. Nicholls [6] has been cited to support the proposition that the maxim applies to torts. That seems to be because Sir Frederick Pollock referred to it as the only clear example of this known to him. But he added that its facts were very peculiar: see Pollock on Torts, 15th ed. (1951), pp. 127-128. It was an action in case arising out of complicated facts of an unlawful transaction to which both plaintiff and defendant had been parties. It was held that the plaintiff could not recover, as to support his claim he had to prove and rely upon the preceding illegality. The case is thus really only an illustration of the principle expressed in Simpson v. Bloss [1] , where it was said that the plaintiff's claim was

so mixed with the illegal transaction in which he and the defendant were jointly engaged, that it cannot be established without going into proof of that transaction, and therefore cannot be enforced in a court of law. That is well-settled doctrine. If a plaintiff has to rely upon an unlawful transaction to establish his cause of action, the court will dismiss his case: see the passage in the judgment of Denning L.J., as his Lordship then was, in Marles v. Philip Trant & Sons Ltd.; Mackinnon, Third Party [2] . But that is as far as that rule goes: Gordon v. Chief Commissioner of Metropolitan Police [3] ; Bowmakers Ltd. v. Barnet Instruments Ltd. [4] . Those who like to interlard English law with Latin may be pleased to remember at this point two further maxims, one from Coke (4 Inst. 279), the other from Hale (2 Pleas of the Crown 386): "Nemo allegans turpitudinem suam est audiendus"; and "Frustra legis auxilium quaerit qui in legem committit". But, whether the talk be in Latin or English, it is important to remember that in the present case it was the defendant, not the plaintiff, who asserted the illegality of the proceedings in the course of which the negligence sued upon occurred. The plaintiff did not have to say that the defendant was driving the car in breach of the law, only that he drove it negligently. 1. (1846) 2 C.B. 501 [135 E.R. 1042]. 2. (1816) 7 Taunt. 244, at p. 250 [129 E.R. 99, at p. 100]. 3. [1954] 1 Q.B. 29, at p. 38. 4. [1910] 2 K.B. 1080. 5. [1945] 1 K.B. 65.

Because I consider that, properly understood, the maxim "ex turpi causa non oritur actio" should be confined to the law of contracts and conveyances, I now march it off and dismiss it from this case. I realize however that, read with its words distorted, its meaning has been expanded, so that in recent times it has been quoted and relied upon by defendants in actions for negligence or for breaches of statutory duties. It has been put forward as meaning that our law, the common law not the law of Rome, does not give a man a remedy for harm done him if it arises out of and in the course of his carrying out an unlawful act.

Is that proposition correct? and how far does it extend? Those are the questions. Statements to be found in judgments on this topic in cases in this country and in England, in Canada and the United States might be more persuasive if they were less conflicting. None of them compels a conclusion for this case. A conclusion must therefore be thought out from principles. It cannot be found out from similar cases. The only decision in point which is for us of high authority is that of the House of Lords in National Coal Board v. England [1] . There it was held that a mine worker's breach of a statutory obligation, which was designed to ensure safe working in coal mines, did not debar him from bringing an action against his employers based upon their vicarious liability to him for the negligence of another workman. As to the maxim, Lord Porter said:

I cannot believe that a breach of a statutory obligation drafted to ensure the adoption of a careful method of working is a "turpis causa" within the meaning of the rule. Indeed, the adage itself is generally applied to a question of contract and I am by no means prepared to concede where concession is not required that it applies also to the case of a tort [2] . Lord Asquith of Bishopstone, in agreement here with Lord Reid, said that the short answer to the maxim lay in the provisions of the Law Reform (Contributory Negligence) Act, 1945. He added however: But for myself I should have decided in the same sense in the absence of any such definition. The vast majority of cases in which the maxim has been applied have been cases where, there being an illegal agreement between A and B, either seeks to sue the other for its enforcement or for damages for its breach. That, of course, is not this case. Cases where an action in tort has been defeated by the maxim are exceedingly rare. Possibly a party to an illegal prize fight who is damaged in the conflict cannot sue for assault (Boulter v. Clark [3] ). But it seems to me in principle that the plaintiff cannot be precluded from suing simply because the wrongful act is committed after the illegal agreement is made and during the period involved in its execution. The act must, I should have supposed, at least be a step in the execution of the common illegal purpose. If two burglars, A and B, agree to open a safe by means of explosives, and A so negligently handles the explosive charge as to injure B, B might find some difficulty in maintaining an action for negligence against A. But if A and B are proceeding to the premises which they intend burglariously to enter, and before they enter them, B picks A's pocket and steals his watch, I cannot prevail on myself to believe that A could not sue in tort (provided he had first prosecuted B for larceny). The theft is totally unconnected with the burglary. There is, however, a surprising dearth of authority on this point [4] . I have quoted that passage at length because it brings the problem in this case into full light. 1. [1954] A.C. 403. 2. [1954] A.C., at p. 419. 3. (1747) Bull. N. P. 16. 4. [1954] A.C., at pp. 428, 429.

Speaking generally, a person is not disqualified from suing in tort merely because at the time when he suffered the injury he was engaged in some form of wrongdoing, unless it appears that the law against which he offended precludes him from complaining of the conduct which caused him harm: Henwood v. Municipal Tramways Trust (S.A.) [1] . If a plaintiff's own conduct was a contravention of a law designed to ensure that he, and others similarly situated, would be safe from danger, and if this conduct was a factor in producing his injury, he may be found guilty of contributory negligence or of being the author of his own misfortune. That however is very different from saying that, simply because a man was a wrongdoer, he can have no remedy at law for harm done him. That proposition cannot possibly be sustained. It has now been abandoned even in Massachusetts where it once had currency. Professor Glanville Williams summed up as follows:

The notion that it is an effective riposte in tort to show that the plaintiff was a wrongdoer should long ago have been killed by the arguments of Sir Frederick Pollock; but it has lingered on in some cases, aided by oft-repeated maxims like "ex turpi causa non oritur actio". In some American jurisdictions the blind application of this maxim has debarred plaintiffs who violate statutes against Sunday travelling from suing for injuries received in the course of such travelling, and has similarly outlawed plaintiffs who operate a car without a licence. The weight of opinion is against these cases even in America, and for English courts they stand for nothing save a warning: Joint Torts and Contributory Negligence (1951), p. 333. There is no risk of our not heeding the warning or being unaware of the passage by Sir Frederick Pollock which now appears in the 15th ed. of Pollock on Torts (1951), at pp. 125-128. But we must be clear on what is the extent of the error against which we are admonished. 1. (1938) 60 C.L.R. 438.

In the present case discussion we heard of Henwood's Case [1] , seemed to me to be beside the point. The question here is not, Is the plaintiff precluded from recovering because he was a wrongdoer? It is, Had the defendant a duty to the plaintiff to carry out carefully the unlawful enterprise on which they were jointly engaged? The problem is circumscribed by the facts. It is not a wide-ranging general question of the bearing that unlawful conduct has on liability in tort. It is whether when two persons are jointly engaged in a particular criminal enterprise - unlawfully taking or using a motor car - one can sue the other because he has been negligent in the course of carrying out his part in their unlawful undertaking. The tort in question is negligence. My judgment is restricted to that. Torts differ, and I do not intend to propound any general principle to cover cases other than negligence, such as if one thief committed an assault and battery on his fellow, or slandered him to another member of their gang, while they were criminally engaged.

Negligence, as we know it, as a tort in itself, is a relative newcomer in the common law. A generalization from a number of miscellaneous actions, it came into its own in the nineteenth century, founding its claim to recognition upon inheritance from both trespass and case as forms of action. The temper of the times made fault its essential characteristic. "The ethical tone of nineteenth-century liberalism was caught by legal historians, and by them translated into the equation of fault and liability": Fifoot, Law and History in the Nineteenth Century (Selden Society Lecture (1956)), p. 9. And fault came to be seen as the breach of a duty, the duty of care.

I have elsewhere had occasion to analyse the concept of duty of care as an element in the tort of negligence: Hargrave v. Goldman [1] . I shall not go over that ground again here. A duty of care is, without doubt, a starting point for an action of negligence.

The law of negligence today is a product of the continuing fertility of the common law and the creative work of courts. The process continues. Illustrations are numerous. I mention only the passages in the judgment of the Chief Justice in M.L.C. Assurance Co. Ltd. v. Evatt [2] . The scope of a duty of care and the occasions when it arises and the facts out of which it arises can still be further defined and refined. We must, of course, build upon established foundations and without destroying the symmetry of the existing building: but we need not be fearful of making additions to fill vacant spaces if they accord with what is already standing. Saying that does not, I think, involve any failure to heed Lord Simonds' warning (in Scruttons Ltd. v. Midland Silicones Ltd. [3] ) against illegitimate innovations or a forgetting that "our first duty is to administer justice according to law". In the present case there is no precedent directly in point which is binding upon us. We must choose between decisions which are in conflict and dicta that are not coherent.

1. (1968) 42 A.L.J.R. 316. 2. [1962] A.C. 446, at pp. 467, 468.

Developments in the common law of torts today are dictated by a sense of existing and inherent policy and principle. It has been said that the maxim ex turpi causa non oritur actio is "based on public policy": per Cohen L.J. in Cakebread v. Hopping Brothers (Whetstone) Ltd. [1] . But public policy, which after all is the bedrock foundation on which the common law of torts stands, is not here to be thought of as like public policy that invalidates contracts. I commented on that, the "unruly horse", in what I wrote in Brooks v. Burns Philp Trustee Co. Ltd. [2] . Here the question is different. It seems to me a mistake to approach the case by asking whether the plaintiff is precluded by considerations of public policy from asserting a right of action for negligence. The proper inquiry seems to me to be simply: is there for him a right of action? That depends upon whether in the circumstances the law imposed a duty of care; for a right of action and a duty of care are inseparable. The one predicates the other. Duty here does not mean an abstract and general rule of conduct. It is not the duty to God and neighbour of the catechist's question. It is a concept of the law, a duty to a person, which he can enforce by remedy at law. Lord Atkin's famous generalizations need some qualifications and require some exceptions. For instance, negligent misstatements are now actionable, but the duty of care in that field depends, it has been held, not simply on foreseeability of harm but on a special relationship between the parties. If a special relationship be in some cases a prerequisite of a duty of care, it seems to me that in other cases a special relationship can exclude a duty of care. It is as well to remember, when Donoghue v. Stevenson [3] is invoked, that Lord Atkin there said:

But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy [4] . I add to that two sentences from Salmond on Torts, 15th ed. (1969), p. 257, which I think correctly reflect the present state of the law: The courts are still free to hold that the plaintiff's interests are not in all the circumstances of the case entitled to be protected against the defendant's conduct. For reasons of policy there are limits to the actions of negligence. 1. [1947] 1 K.B. 641, at p. 654. 2. (1969) 43 A.L.J.R. 131. 3. [1932] A.C. 562. 4. [1932] A.C., at p. 580.

The appellant and the respondent were companions in crime. Were they "neighbours" in Lord Atkin's sense? Put in that way the question is: Was the one under a duty, enforceable at law, to take care not to harm the other? I prefer to ask was there a right than to ask whether public policy has intervened to deprive the would-be plaintiff of a remedy. In the passage I quoted above, Lord Asquith remarked on "the surprising dearth of authority" - of cases of one criminal suing his companion. Perhaps it is not so surprising. It may shew only that no one ever supposed a court would listen to such a complaint - or perhaps it is that honour among thieves made resort to courts unnecessary or that it seemed to them wise to stay away. The absence of much judicial consideration of the topic in England is a justification, if any justification be needed, for my giving special consideration in this case to academic writings. Moreover the English law reports, if they do not yield much in the way of direct authority, do provide some convincing dicta on suppositive facts. Scrutton L.J. said, in Hillen v. I.C.I. (Alkali) Ltd. [1] , that "it would be true that a burglar could not sue the houseowner for a defect in the staircase known to the householder but not to the burglar". Today a trespasser is not without remedy against an occupier who, knowing that his presence was extremely likely, acted negligently and thereby caused him harm. But I doubt whether a person who combined the characters of trespasser and burglar could complain of the condition of the occupier's premises even if visits by burglars were known to be extremely likely. Why could he not complain? Simply I think because burglars are not to be regarded as the "neighbours" of the occupier of the premises which they break and enter. If the honest householder has no duty of care for burglars who come upon his premises, can it be that if two come there together each has a duty of care for the other in the conduct of their nefarious enterprise? I think not. Lord Asquith's illustration of the two safe-breakers is in point. I may add another hypothetical case. Suppose A and B set out to murder C: B was to hold him while A stabbed or shot him. In the course of carrying out their purpose A, by carelessly handling the knife or firearm, wounds B, instead of killing C their intended victim. Can B get damages from A for negligence? I think not. Why not? Because A owed no duty to his accomplice B of care in doing an act which, using Lord Asquith's phrase, was "a step in the execution of the common illegal purpose". The present case seems to me the same in principle.

In the United States the topic has had much discussion in a wide variety of circumstances. The general rule has there been stated to be that for an injured man to be disqualified from bringing an action for tortious injury by reason of his participation in crime:

His injury must have been suffered while and as a proximate result of committing an illegal act. The unlawful act must be at once the source of both his criminal responsibility and his civil right. The injury must be traceable to his own breach of the law and such breach must be an integral and essential part of his case. Where the violation of law is merely a condition and not a contributing cause of the injury, a recovery may be permitted: Meador v. Hotel Grover [1] ; cited in Holcomb v. Meeds [2] ; and see Manning v. Noa [3] . 1. (1942) 9 So. 2d 782, at p. 785. 2. (1952) 246 Pac. 2d 239, at p. 244. 3. (1956) 76 N.W. 2d 75; 77 A.L.R. 2d 955.

But this formulation by which the critical question is whether the unlawful act has a causal connexion with the harm suffered and "proximately contributed" to it is not to my mind satisfactory. The question gets bogged down in phrases about causal relations, "proximate cause", "causa causans", "causa sine qua non", "novus actus". (It is perhaps worth interpolating that the word "causa" has here a meaning which, obviously, is quite different from "causa" in the phrase "turpis causa".) I need not enter upon a discussion of the vexed vocabulary of causation as a concept of the law. To do that would be only to go over again ground which I have covered at some length in other cases, especially in National Insurance Co. of New Zealand Ltd. v. Espagne [4] . I merely mention in addition the discerning discussion of the topic with recent references now appearing in Winfield on Tort, 8th ed. (1967), commencing at p. 80. I add to them the remark by Lord Parker C.J. in delivering the judgment of the Court of Criminal Appeal in Reg. v. Anderson; Reg. v. Morris:

Considered as a matter of causation there may well be an overwhelming supervening event which is of such a character that it will relegate into history matters which would otherwise be looked upon as causative factors [5] . 1. (1961) 105 C.L.R. 569, at pp. 590-596. 2. [1966] 2 Q.B. 110, at p. 120.

The idea his Lordship thus expressed is acceptable to lawyers, however questionable it must seem to logicians and for metaphysics. The plaintiff said, or would have said had he used Lord Parker's words, that the negligence of the defendant causing the accident had relegated into history the illegal conduct of the taking and using the car. This view was in substance accepted by the learned trial judge. He said:

The question of the ownership of the car, and how the defendant came to be driving it, and how the plaintiff happened to be in it, are all matters which are prima facie irrelevant to his cause of action. And later he said: After all, the real gist of the plaintiff's action is the negligence of the defendant. The illegal use of the car plays no part in the cause of action save as a sine qua non. This conclusion may be inevitable if the whole test of the bearing which criminal conduct has on tortious liability be a purely causal relationship. But is that the right test?

Canadian courts have several times met the question that arises in this case, once in a very similar factual situation: Rondos v. Wawrin [1] . There two boys took a car belonging to the father of one of them without his authority. An accident occurred. It was said that the boys had guilty consciences and the one driving took his eyes off the road when the other warned him that he thought a police car was overtaking them. Could one boy who was hurt maintain an action against the other, the driver, based on his negligence? The trial judge held he could, as the illegality of the possession of the car was not a contributing factor to the occurrence of the accident: the accident might, he said, have occurred in the same way if the boy had been driving the car with his father's consent. The Manitoba Court of Appeal, holding that the maxim ex turpi causa non oritur actio provided a defence to the action, reversed this decision.

1. (1967) 66 D.L.R. (2d) 272; (1968) 68 D.L.R. (2d) 658.

It may be accepted that whether an action for negligence can be brought by one criminal against another depends upon whether the negligence was so related to their unlawful conduct that the tort can be said to arise out of the crime - but only in a general sense, not in the special causal sense that the peculiar phrase "an accident arising out of and in the course of employment" has gained by the cartload of cases under workmen's compensation statutes. The question is whether the harm arose from the manner in which the criminal act was done. That question is not one of cause and consequence which can be answered in the old jargon of scholastic logic. Rather it is one of connexion and relationship and involvement. For that the modern jargon of remoteness and proximity is more useful. At one end of the scale are cases when the same facts constitute both a crime and the tort. This is not that case. At the other end of the scale are cases when the tort is not related except in point of time to the crime. This is not that case. Here the harm done was not remote from the carrying out of the illegal enterprise. It resulted from the careless manner in which the defendant carried out his part in it.

Lord Lyndhurst expressed basic doctrine when, speaking as Chief Baron, he said in Colburn v. Patmore:

I know of no case in which a person who has committed an act, declared by the law to be criminal, has been permitted to recover compensation against a person who has acted jointly with him in the commission of the crime. It is not necessary to give any opinion upon this point; but I may say, that I entertain little doubt that a person who is declared by the law to be guilty of a crime cannot be allowed to recover damages against another who has participated in its commission [1] . That doctrine, given more particularity for the present case, can I think be formulated as a rule as follows: If two or more persons participate in the commission of a crime, each takes the risk of the negligence of the other or others in the actual performance of the criminal act. That formulation can be regarded as founded on the negation of duty, or on some extension of the rule volenti non fit injuria, or simply on the refusal of the courts to aid wrongdoers. How it be analysed and explained matters not. But to its application exceptions are to be admitted. To these I now turn to ask whether this case is one of them. 1. (1834) 1 Cr. M & R. 73, at p. 83 [149 E.R. 999, at p. 1003].

Does liability depend upon the kind of crime in the course of which the tort occurred?

It was said for the respondent that the illegality of taking and using the motor car in which the plaintiff and the defendant were jointly engaged was an escapade rather than a serious crime; and that burglars, safe-breakers and would-be murderers were so different from some minor offenders that the same consequences should not ensue. This proposition was adverted to by Sugerman J. in Godbolt v. Fittock [2] . That was a case of the use by two thieves of a motor vehicle belonging to one of them for the purpose of their stealing cattle. One was driving the truck when they were making off with stolen cattle aboard. The other, his partner in the enterprise, was with him. By the negligence of the driver the vehicle ran off the road. The other thief was hurt. He sued his fellow claiming damages which they no doubt hoped that an insurance company would make good. The Supreme Court of New South Wales, on appeal from the District Court where the action was tried and judgment given for the defendant, held that one thief cannot sue the other for personal injury caused by negligence in the manner of their thievery. The case thus resembles that of the hypothetical burglars or safe-breakers. It seems to me to have been rightly decided, although it is not necessary for the decision of this case to say so. My purpose in referring to it is to notice the remark of Sugerman J.:

In view of the width and complexity of the whole subject, of which the facts of the present appeal illustrate only one aspect, I should not wish in dealing with this appeal to state any principle which is wider than is necessary for its decision. The present is a case of criminality in its stricter and more limited sense. Not every case in which the parties have acted together, in one sense or another, in a manner which is illegal, for example in mutual disregard of some statutory regulation of conduct, is necessarily subject to the same considerations of public policy or governed by the same principles. See, for example, the cases to which we have been referred, of breaches of traffic regulations [1] . I appreciate the significance of that, though how one distinguishes "criminality in its stricter and more limited sense" from other criminality is not clear. Various criteria were put forward in the course of the arguments that we heard. One, derived apparently from an article in the Melbourne University Law Review (vol. 4, p. 534), was to put breaches of statutory rules into one category and "violations of the criminal law" in another. But that distinction cannot be valid. In those Australian States where Criminal Codes are in force all crimes are statutory: and in all States many serious offences, among them those derived from the Offences against the Person Act, 1861, of the United Kingdom, are statutory in origin. It seemed that we were being invited to revive the distinction between mala prohibita and mala in se. Other distinctions were suggested too - between indictable offences and offences punishable summarily; between felonies and misdemeanours - but none of them meets the difficulty. 1. [1963] S.R. (N.S.W.) 617, at p. 623. 2. [1963] S.R. (N.S.W.), at p. 623.

It is not really necessary to decide this case by asking what would be the result if the facts were different. Hypothetical cases of negligence during the commission of minor offences, including breaches of traffic regulations - such as exceeding speed limits, driving an unregistered motor car or a motor car without number plates or lights, and so forth - were impressed upon us. It might be enough for me to say only, following the example of Sugerman J. in the judgment I have referred to, that these cases may be left to be decided when they arise. But I do not think they provide useful analogies to the present case, and perhaps I should say why they do not. There are distinctions between the offences of using a car without the owner's consent and using a car without a number plate or a car not registered or not covered by insurance. In the one case the emphasis of the offence is on the conduct of the user of a thing; in the other it is rather on a quality of the thing used. But, except in cases where the accident occurred simply because of the quality of the thing, as for example a car driven without lights, that distinction seems to have little bearing on liability for negligence. What Walsh J. said in Andrews v. Nominal Defendant [1] is pertinent to this. His Honour distinguished Christiansen v. Gilday [2] , a case that is instructive for present purposes, saying:

If the ship had been seaworthy the accident would not have occurred. If the car which caused injury to the present plaintiff had been insured the accident would none the less have occurred [1] . However, the distinction between the present case and traffic offences is, I consider, wider than that, and more fundamental. Without wishing to express approval of every word in the judgments in the Supreme Court of New South Wales in Bondarenko v. Sommers [3] , I note with agreement that Jacobs J.A. said: The illegal act complained of was the taking and using of a motor vehicle and it is the using of the motor vehicle which is complained of as having been done negligently. Thus the actual act complained of as done negligently is itself the criminal act in which both plaintiff and defendant were engaged [4] . 1. (1965) 66 S.R. (N.S.W.) 85, at p. 95. 2. (1948) 48 S.R. (N.S.W.) 352. 3. (1965) 66 S.R. (N.S.W.) 85, at p. 95. 4. (1968) 69 S.R. (N.S.W.) 269. 5. (1968) 69 S.R. (N.S.W.), at p. 277.

With respect for their Honours' opinions, I am unable to see the present case as Starke J. did or to reach the conclusion that Adam J. did in Boeyen v. Kydd [5] . To ask whether a statute which creates an offence exhibits an intention to deprive one offender of a right of action against the other is I consider to invert the proper inquiry. Rather, the inquiry should be whether the statute is to be read as abrogating the basic rule as I have stated it, that there is no right of action by one criminal against another for negligence. However, the result is the same if one takes the view - which I do not - that in juristic analysis the effect of illegality is, from considerations of public policy, privative, a taking away of a right. Whichever way it be approached, the question is not whether a statute creating an offence also denies a remedy. Rather it is whether it preserves a remedy which otherwise would be gone, or - as I think it is correct to say - recognizes an exception to the rule that a criminal cannot have the aid of the law in his complaint against his fellow. Either way, the answer must be found in the terms and the subject matter and the purpose of the statute. In the case of the traffic laws, their primary purpose being to promote safety on the roads, the answer may well be that rights of action for negligence in the use of vehicles subsist alongside the penal provisions. Whether that be so or not, I consider that breaches of safety laws and traffic regulations are far removed from the crimes of stealing or of unlawfully taking or using a motor car. There, what I take to be the primary rule about negligent acts done in the conduct of a joint criminal enterprise has not I consider been displaced.

The facts and the cases bearing on the question for decision are discussed in some detail in the judgment of my brother Windeyer. I agree with him that the appeal should be allowed and wish only to make a few observations which seem to me to reinforce the conclusion to which he has come.

Stated shortly the question that arises is whether a person who is engaged with another in committing a crime, in the present case that of illegally taking and using a motor car, is entitled to maintain an action against that other if the latter acts carelessly in executing his part of the criminal enterprise and thereby causes injury to the former. In my opinion, he cannot do so, and for the reason, I think, that the law does not recognize the relationship between two criminals who are jointly engaged in carrying out a criminal venture as being one which gives rise to a duty of care owed by the one to the other in the execution of the crime. It would, I think, be an odd state of affairs if in a case such as that put by Lord Asquith in National Coal Board v. England [1] a court was called upon to consider and decide the standard of care to be expected, in particular circumstances, of a prudent safe-breaker or whether in the case suggested by Scrutton L.J. in Hillen v. I.C.I. (Alkali) Ltd. [2] the smuggler who had not warned his confederates of a defect in the rope which they were using in the course of hiding smuggled goods had acted with the degree of care to be expected, in the circumstances, of a reasonably careful smuggler. Further, let it be supposed that in the present case, in return for a promise by the plaintiff to assist him in illegally taking and using the car, the defendant had promised to use the car to drive the plaintiff to some destination to which he wished to go. Suppose further that in the course of carrying out that promise, the defendant had driven the car negligently and thereby injured the plaintiff and that the latter had sued the defendant in tort and also in contract, basing the latter claim upon an implied contractual obligation to drive carefully. There is no doubt that the claim in contract would fail. Yet, if the judgment appealed from be correct, the claim in tort would succeed. I cannot think that the common law permits such an absurd result. The answer to the plaintiff's claim is, I think, that the law does not recognize that those who are taking part in a joint criminal venture are "neighbours" in the sense in which Lord Atkin used that word in Donoghue v. Stevenson [1] .

1. [1954] A.C. 403, at p. 429. 2. [1934] 1 K.B. 455, at p. 467. 3. [1932] A.C. 562. Walsh J.

The learned Judge who heard the action in which this appeal is brought found that the respondent suffered injury caused by the careless driving of a motor vehicle by the appellant. He found that before, and at the time of, the accident both the appellant and the respondent, with others, were illegally using the vehicle. He found they were acting in concert or in a joint adventure. They were both committing an offence under s. 81 (2) of the Crimes Act 1958 of the State of Victoria. Section 81 (2) provides:

Any person who takes or in any manner uses or attempts to take or in any manner use any motor car without the consent of the owner or person in lawful possession thereof shall be guilty of a misdemeanour and shall be liable for a first offence to a fine of not more than One hundred pounds or to be imprisoned for a term of not more than twelve months or to both such fine and imprisonment, and for a second or any subsequent offence to be imprisoned for a term of not more than five years.

It appears, therefore, that when injured the respondent was committing an offence against the criminal law, that the appellant was jointly and in concert with the respondent committing the same offence, and that the driving of the vehicle by the appellant was an act which itself constituted an offence against that law. It was not merely an act which followed or accompanied the commission of an offence. The offence was a serious and not a minor one.

There has been a sharp division of judicial opinion in cases which have come before the Courts of New South Wales and of Victoria, in which the question of the right of an injured person to recover damages in such or in similar circumstances has arisen. In New South Wales the defendant has been held entitled to succeed in an action of negligence upon a defence that the injuries for which the plaintiff sued were suffered in the course of a criminal enterprise or activity in which he was engaged jointly with the defendant. It was so held by Ferguson J. in the unreported case of Morris v. Smith (mentioned in Godbolt v. Fittock [1] ), by a District Court judge in Sullivan v. Sullivan [2] , by a Full Court of the Supreme Court in Godbolt v. Fittock, and by the Court of Appeal Division of that Court in Bondarenko v. Sommers [3] . In Victoria the opposite conclusion was reached by Adam J. in Boeyen v. Kydd [4] and by Starke J. in the present case [5] . The matter was discussed also in the cases of Andrews v. Nominal Defendant [6] and Baitis v. Mills [7] .

1. [1963] S.R. (N.S.W.) 617, at p. 619. 2. (1961) 79 W.N. (N.S.W.) 615. 3. (1968) 69 S.R. (N.S.W.) 269. 4. [1963] V.R. 235. 5. [1969] V.R. 267. 6. (1965) 66 S.R. (N.S.W.) 85. 7. (1968) 17 L.G.R.A. 242; [1968] V.R. 583.

The task of the Court in the present case is to decide whether or not the conclusion to which the learned trial Judge came upon the facts which he found was correct. I do not think that I should attempt to state a set of rules by which all cases may be decided in which it is sought to defeat a claim on the ground that the plaintiff has been guilty of some breach of the law associated in some way with the injury of which he complains. Such cases may vary greatly both in respect of the nature of the breach of the law alleged against the plaintiff and in respect of the relationship of that breach with the occurrence of the injury, whether considered in terms of causation or otherwise. I do not think there is a single rule by which, in all cases, the question raised by a plaintiff's commission of an illegal act, or his participation in it, is to be answered. In some cases the correct approach may be to inquire whether "it is the intention of a given statutory provision to make the doing of the act penalized a ground of disqualifying the offender from recovering for negligence or other tort". (See Henwood v. Municipal Tramways Trust (S.A.) [8] .) But, in other cases, I think the inquiry is not whether the offender is disqualified from obtaining from the Court a remedy in respect of a wrong which is assumed to have been done to him by the defendant, but it is whether, in the circumstances, he will be treated as having suffered any civil wrong which is recognized by the law.

I should have thought that where a person is to be deprived of a basic right, in this case a cause of action, a clear intention so to deprive him should appear from the form of the legislation before public policy should be said to deprive him of his right [1] . The assumption made by his Honour is that the respondent had a "basic right" and had a cause of action and that the question was whether or not public policy should be said to deprive him of it. On that assumption I think that the quoted statement of his Honour was correct. But the assumption requires further examination. 1. [1969] V.R., at p. 275.

I think it is correct to say that a person has a common law cause of action only if the common law, as it has been developed and as it is understood at the time when the claim is brought, recognizes that that cause of action is available in the events which are proved to have occurred. The question whether or not a given set of facts gives rise to a cause of action at common law can sometimes be a matter of much conflict of judicial opinion. When there is a dispute on the question whether or not the common law recognizes that a cause of action is available upon a set of facts proved or alleged, it must be resolved by examining such earlier judicial decisions and dicta as appear to be relevant, and by coming to that conclusion which is judged to be in line with the course which the law has taken and to be appropriate to its orderly development.

The question here is: Does the common law give a cause of action in negligence to the respondent against the appellant in the circumstances proved in this case? The answer to be given is not definitely settled by authority. But some indications may be found of the path to be followed in seeking an answer. It is helpful to refer in the first place to Henwood v. Municipal Tramways Trust (S.A.) [2] . In that case there was no criminal activity jointly undertaken and carried out by the parties. The claim related to the death of a man who was in breach of the law. There was a direct connexion between his illegal act and the injury which caused his death. It was held that his dependants were entitled to succeed. Latham C.J. said that

that there is no general principle of English law that a person who is engaged in some unlawful act is disabled from complaining of injury done to him by other persons, either deliberately or accidentally. He does not become caput lupinum [3] . I accept that a plaintiff is not necessarily out of Court because he was committing an unlawful act when he was injured. But I think it should also be accepted that in some circumstances a person injured whilst engaged in unlawful acts has no right of action for that injury. That view finds support in judicial statements made over a long period of time. It has been asserted, both in judgments and in academic writings, that a right of action should be denied to some such persons. They include the burglar and the smuggler discussed by Scrutton L.J., when considering the liability of an occupier of premises, in Hillen v. I.C.I. (Alkali) Ltd. [1] . They include the burglar whose companion is negligent in the handling of explosives, to whom Lord Asquith referred in National Coal Board v. England [2] . I do not think that the answer to the question whether or not the respondent was entitled to succeed in his action is to be found by postulating a general rule that a right of action is conferred upon every person who sustains by the negligent act or omission of another an injury which is reasonably foreseeable by that other and by then considering whether the respondent should be deprived of his right of action. In my opinion it has been recognized that there are situations in which no such right of action is given and, therefore, the assumption of the existence of the general rule to which I have referred is not warranted. I think that some reasons which have been given for the proposition that in certain situations there is no right of action are open to question but, nevertheless, the proposition itself is a valid one which has been recognized as part of the common law. It may be that it is erroneous to treat it as dependent upon the maxim ex turpi causa non oritur actio. Again, it does not seem satisfactory to regard it as based simply upon the reluctance of the law to give any encouragement to crime. But the rule that in some situations of criminal activity no right of action in negligence is given to one participant against another is not proved to be untenable by showing that some reasons given in support of it are open to objection. In my opinion this rule has been recognized and ought to be recognized as being a part of the common law governing the action of negligence. 1. (1938) 60 C.L.R. 438. 2. (1938) 60 C.L.R., at p. 446. 3. [1934] 1 K.B. 455, at p. 467. 4. [1954] A.C. 403, at p. 429.

The foregoing opinion is important as a starting point in the resolution of the problem before the Court. It indicates the nature of the question to which attention is to be directed. The question is not whether a plaintiff, in whom a right of action is assumed to have vested, is to be allowed to enforce it or is to be held to be disqualified from doing so. The question is whether or not upon the facts found by the learned trial judge the plaintiff in this case had a right of action for damages for negligence against the defendant. If it be accepted that there are some situations involving criminal activities in which a person injured by the carelessness of another is not given a right of action in negligence against that other, the question to be answered is whether or not the parties to this action were in a situation to which that rule applies. In considering that question I have derived assistance from observations made in the recent decisions dealing with similar problems and to some of these I shall now refer.

In Boeyen v. Kydd [1] Adam J., who held that the plaintiff in that case was entitled to succeed, acknowledged that in some cases of criminality a claim to recover damages in tort would be rejected. He said:

But, even in regard to torts, the illegal conduct of the plaintiff may provide a defence. It may happen that the illegal conduct on the part of the plaintiff is in substance the real cause of his own damage and then on general principles that plaintiff could not recover from any other party. There may be other cases in which the illegal conduct on the part of the plaintiff would bar him, e.g. on the ground of public policy where his illegal act is a step in the execution of an illegal purpose common to himself and the defendant - see per Lord Asquith in National Coal Board v. England [2] - or again where in the course of committing some joint crime with the defendant, he suffers a harm which may be regarded as a necessary or contemplated incident of the crime - see Platz v. City of Cohoes [3] . Thus, if two safe-breakers were engaged in exploding a safe and in the course of that operation one of them was injured, then even though there might be some want of care in the other, there might well be a defence on one or other of the foregoing principles. This case might well be brought within the general principle of volenti non fit injuria, the risk of such injury being treated as voluntarily undertaken by the plaintiff having regard to all the circumstances of the enterprise. But where a defence does not come within any of the well-recognized defences, such as contributory negligence or volenti non fit injuria, I would be very reluctant, in the absence of authority, to allow it on the basis of some supposed principle of the public policy [4] . I do not understand this to mean that in all the cases, to which his Honour referred by way of illustration, the real basis of the failure of the action would be, in his opinion, an application of the principle of volenti non fit injuria or of the principle of contributory negligence. He seems to indicate that the plaintiff will be barred from recovery, on the ground of public policy and independently of other well-recognized defences, first, where the illegal act is a step in the execution of an illegal purpose common to himself and the defendant and, secondly, where in the course of committing a joint crime he suffers a harm which may be regarded as a necessary or contemplated incident of it. In stating the first of these grounds for barring a plaintiff from recovery his Honour referred to the observations of Lord Asquith in National Coal Board v. England [1] . There his Lordship contrasted the case of the negligent handling of an explosive charge by one of two burglars whose common purpose was to open the safe by means of explosives with the case of the theft by one of them of the other's watch whilst they were proceeding to the scene of the intended crime. In the second of these cases his Lordship thought that an action in tort would lie, the theft being "totally unconnected with the burglary". It is clear that Adam J. did not regard either of the stated grounds as applicable to the case with which he was dealing. But if public policy provides a bar to recovery where the illegal act is a step in the execution of an illegal purpose common to the plaintiff and the defendant, it seems difficult to regard public policy as having no application to a case in which the illegal acts being committed by the plaintiff and the defendant at the time of the injury constitute the actual fulfilment of the illegal purpose which they had in common. It seems to me, with respect, that in the case with which his Honour was dealing the situation of the parties in regard to the execution of their illegal purpose corresponded more closely with the situation supposed in the first of Lord Asquith's illustrations than with that supposed in the second of them. In the passage which I have cited from his reasons Adam J. referred to the principle of volenti non fit injuria. But I do not think that this principle, as it has been expounded in Rootes v. Shelton [2] , can provide a satisfactory solution of the problem which this case presents. 1. [1963] V.R. 235. 2. [1954] A.C. 403, at p. 429; [1954] 1 All E.R. 546. 3. (1882) 89 N.Y. 219 [42 A.R. 286]. 4. [1963] V.R., at p. 237. 5. [1954] A.C. 403, at p. 429. 6. (1967) 116 C.L.R. 383.

In an article in Melbourne University Law Review, vol. 4, 534, at p. 551, it has been suggested, as a reason for the denial of a remedy in some exceptional cases to a participant in crime, that the courts might properly refuse to entertain an action, where evidence would be required of a kind which would endanger the dignity of judicial proceedings and tend to bring the courts into public disrepute. But courts are required constantly to hear evidence of criminal conduct no matter how vile and degrading it may be. The reception of evidence of that kind need not be regarded as an affront to the dignity of the court. It is true that it might be considered inconsistent with its dignity to entertain an action for a civil wrong, alleged to have been committed when both parties were engaged in such conduct and when it is invited at the suit of one of them to investigate the details of it for his benefit. However, I do not think that the essential reason for a rule by which the courts refuse to recognize a right of action in some cases of criminality is a shrinking by the court from the seamy facts of life or a scrupulous regard for its dignity and reputation.

In my opinion, however, such a rule should be accepted as part of the law which has been worked out and developed to govern the action of negligence. It is not essential, in my opinion, in order to justify the rule itself or to determine its applicability to this case, to discern some abstract principle of which the rule can be seen to be a logically necessary consequence and from which the affirmation or denial of its operation in this case follows inevitably. The process of declaring and applying the law does not always depend upon that method. In deciding whether or not in this case the respondent was entitled to succeed, a choice is required between different conclusions, to which different methods of approach and different attitudes towards the current requirements of the service by the law of community interests, which have been reflected in the judicial discussion of the problem, would lead.

I have come to the conclusion that upon the facts found by the learned trial Judge the respondent had no right of action in negligence against the appellant. I think that the rule to which I have referred applies to those facts to produce that result. The relationship of the parties and the act of which the respondent complains were such that no right of action based upon the manner in which that act was performed could arise.

In the judgment of Sugerman J. in Godbolt v. Fittock [1] there is a passage with which I agree. It is to be read in its context and regard is to be had to his Honour's explanations of it and to his expressed intention not to state any principle which was wider than the decision of the case before him required. His Honour said:

In my opinion, when co-adventurers in a joint criminal venture of a nature comparable with that in question in the present appeal use a motor vehicle in the pursuit of their common purpose, damages are not recoverable by one, being a passenger, against another, being the driver, in respect of injuries suffered as a result of want of due care in driving on a journey which is directly connected with the execution of the criminal purpose. I use "directly" in a relative rather than in any absolute, sense [2] . It is to be observed that his Honour referred to driving on a journey which is directly connected with the execution of the criminal purpose. In the present case, which is different in this respect from that with which his Honour was dealing, the act of driving, instead of being merely connected with the execution of a criminal purpose, was itself the criminal act of illegally using the car and this criminal act the respondent also was committing by his presence in the car. 1. [1963] S.R. (N.S.W.) 617. 2. [1963] S.R. (N.S.W.), at p. 624.

His Honour limited himself to a statement of a rule considered to be applicable to co-adventurers in a joint common enterprise, of a nature comparable with that to which the case was concerned. The case now before the Court is one of a joint criminal enterprise and because of the different feature in it, which I have already mentioned, it is a stronger case than was Godbolt v. Fittock [1] for deciding that damages are not recoverable.

The case of Bondarenko v. Sommers [2] was entirely similar to this case. The reasons of Jacobs J.A. in that case do not at all points coincide with my own opinions. But I agree with some important statements made by his Honour. He said that there must be a relation between the criminal act and the act of negligence complained of. His Honour said that:

it is often the criminal relationship between the plaintiff and the defendant which is the starting point in the inquiry whether the crime bars the plaintiff from recovery for the defendant's breach of duty of care [3] . I should prefer to say that the criminal relationship is the starting point in the inquiry whether the criminal act, in respect of which the relationship exists, can be the basis of any right of action in negligence, rather than to regard the question as being whether the crime is a bar to recovery. But I agree with his Honour's statement that the existence of the joint criminal enterprise in respect of the very act of which the plaintiff complains as having been done negligently seems to me to lie at the foundation of the present defence [4] . In my opinion, no right of action in negligence is given by the law in respect of the carrying out by one of the participants in a joint criminal enterprise of the particular criminal act in the commission of which they are engaged. 1. (1968) 69 S.R. (N.S.W.) 269. 2. (1968) 69 S.R. (N.S.W.), at p. 276. 3. (1968) 69 S.R. (N.S.W.), at p. 277.

I think it is a sufficient explanation and justification of such a result to say that the relationship in which the parties have placed themselves is not one to which the law attaches a right of action for negligence. The refusal to recognize that right may be regarded, I think, as an application, in a particular situation, of the concept of public policy. Warnings have been uttered against misuse of that concept but it has held its place in law. It need not be applied with such rigidity that in every case in which the parties have been in some respect in breach of the law, the relationship between them must be regarded in the same way. In Godbolt v. Fittock, Sugerman J. said:

Not every case in which the parties have acted together, in one sense or another, in a manner which is illegal, for example in mutual disregard of some statutory regulation of conduct, is necessarily subject to the same considerations of public policy or governed by the same principles. See, for example, the cases to which we have been referred, of breaches of traffic regulations [1] . With this I agree. 1. [1963] S.R. (N.S.W.), at p. 623.

I think that a distinction of that kind is not invalidated merely because no precise formula is available for its application to all cases. In some cases of statutory offences, the statute will give a positive indication of the conclusion which should be reached. When there is no such indication the solution appropriate to different situations may be worked out by the familiar methods of application, adjustment and development of legal principle to meet the case in hand.

The final observation which I wish to make is that I agree with the view taken in Bondarenko v. Sommers [2] that in such a case as this the answer to the problem presented does not depend upon deciding whether or not the injury would have occurred if there had been no illegal enterprise. The presence of a causal relationship in that sense is not necessary for the application of the rule which I think is applicable in this case. The case of Andrews v. Nominal Defendant [3] was a very different one. The statements made in it concerning causal relationship, whether correct or not, are not relevant here.

1. (1968) 69 S.R. (N.S.W.) 269. 2. (1965) 66 S.R. (N.S.W.) 85.