Smith v Jenkins

[1970] HCA 2

High Court of Australia|1970-07-01|Before: Walsh JJ, Kitto J

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Source facts

Court

High Court of Australia

Decision date

1970-07-01

Before

Walsh JJ, Kitto J

Source

Original judgment source is linked above.

Judgment (114 paragraphs)

[1]

High Court of Australia Barwick C.J. Kitto, Windeyer, Owen and Walsh JJ. Smith v Jenkins [1970] HCA 2

[2]

ORDER Appeal allowed with costs. Order of the Supreme Court of Victoria set aside and in lieu thereof order that judgment for the defendant with costs be entered in the action.

[3]

The respondent in this appeal sued the appellant in the Supreme Court of Victoria [Jenkins v. Smith [7] ] for damages for personal injuries caused as the respondent claimed by the negligence of the appellant in the management of a motor car. He recovered a verdict which the appellant seeks to have set aside. At the time of the receipt of the respondent's injuries the respondent was in a car being driven by the defendant. It may be taken that there was ample evidence before the judge who tried the case without a jury that the appellant was careless in the driving of the car and that the injuries of the respondent resulted from that carelessness. But both the respondent and the appellant were at the time unlawfully using the car, the property of another, contrary to the provision of s. 81 (2) of the Crimes Act 1958 of the State of Victoria. The driving of the car by the appellant, the manner of which is the basis of the respondent's complaint, was in the circumstances as much a use of the car by the respondent as it was a use by the appellant. That use was their joint enterprise of the moment. The appellant submits that in these circumstances an award of damages ought not to have been made in favour of the respondent.

[10]

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.

[43]

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.

[44]

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.

[58]

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.

[68]

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.

[87]

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] .

[98]

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.

[101]

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.