Criminal acts and civil liabilities: where does one stop and the other begin?

A passenger involved in stealing a car was found to be owed a duty of care after the driver lost control of the vehicle and crashed into a pole. Miller v Miller [2011] HCA 9

Facts

The 16 year old plaintiff had been out drinking with her sister and cousins. After discovering the last train had gone and she had run out of money, she decided to steal a car to drive home. The defendant, one of her cousins, offered to drive the plaintiff and her friends home in the stolen car. The defendant began driving recklessly, speeding and running red lights, and the plaintiff asked on two occasions to be let out of the vehicle. The defendant refused these requests and shortly afterwards lost control of the vehicle and crashed into a pole, killing one passenger and rendering the plaintiff a tetraplegic. The plaintiff made a claim for damages arising from the negligence of the driver.

Duty of care

The existence of a duty of care was considered in light of section 371A of The Criminal Code (WA). This section provided that a person using a motor vehicle without the consent of the owner was said to have stolen that vehicle. The defendant argued that under common law principles, two people engaged in a joint illegal enterprise did not owe each other a duty of care. The courts had to decide whether the plaintiff’s involvement in an illegal activity meant that no duty of care existed between the plaintiff and the defendant and that the plaintiff was therefore precluded from a damages award.

At first instance, the District Court of Western Australia held the defendant owed the plaintiff a duty of care. The plaintiff’s damages were reduced by 50% for contributory negligence. The defendant appealed to the Court of Appeal of the Supreme Court, which overturned the decision of the primary judge and held that no duty of care was owed. The plaintiff then appealed to the High Court of Australia.

The ultimate question to be determined by the High Court was whether it would be inconsistent for the law to prohibit the claimant from stealing a vehicle, yet allow her to recover damages from injuries arising out of the course of stealing the car.

High Court’s ruling

The High Court held that whilst the plaintiff was initially involved in the criminal activity of stealing the car, she was not a party to the criminally dangerous driving that occurred after the car had been stolen. She asked to be let out on two occasions when she realised that the driver was engaging in reckless “joy riding” behaviour. The illegality of her intentions in stealing the car only extended to the short drive home, not to the defendant’s dangerous driving.

In their reasoning, the High Court judges highlighted that although there were circumstances where joint criminal behaviour would negate the existence of a duty of care, preclusion from recovering civil damages should not be automatically assumed as it would depend on the circumstances of each case. The discriminating issue in this case was that the plaintiff had made reasonable attempts to withdraw from the unlawful activity before the commission of the subsequent specific offence rather than the initial crime.