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Author: Helen Huang
Judgment date: 5 September 2019
Citation: Bevan v Coolahan [2019] NSWCA 217
Jurisdiction: Supreme Court of New South Wales - Court of Appeal*
Principles
- Section 54 of the Civil Liability Act 2002 does not displace the common law principles governing joint illegal enterprise. By reason of subsection 2, the provision has doubtful application to motor accidents.
- For participation in a joint illegal enterprise to oust a duty of care, it is sufficient if the plaintiff's conduct was incidental to that enterprise.
Background
The Plaintiff was seriously injured when the vehicle in which she was a passenger, left the road colliding with a telegraph pole. There were four occupants of the vehicle and all had consumed cannabis and crystal methamphetamine. Having exhausted the supply of drugs earlier that night, they drove to a dealer from whom a fresh supply was obtained. After consuming the drugs in a carpark, they were on the return journey when the driver negligently lost control of the vehicle.
The Plaintiff sued both the driver and the owner of the car (who was also a passenger) for damages.
The Trial Judge dismissed the claim on the basis that all occupants were involved in a joint illegal enterprise, as a consequence of which, no duty of care was owed to the Plaintiff.
Decision
Duty of Care
The primary issue on appeal was whether the defence of joint illegal enterprise extends to circumstances where the illegality in question is removed from the very use of the vehicle, unlike the common scenario (as in Miller v Miller (2011) 242 CLR 446 ) where the vehicle was stolen.
The Court of Appeal (Basten and Leeming JJA) accepted the finding by the trial judge that a joint illegal enterprise existed:
[33]: "There was… a joint illegal enterprise involving the purchase, consumption and possession of crystal methamphetamine. The use of the car to travel to the place of purchase, and back home carrying some of the purchased drugs, having consumed the rest, was an essential element in the enterprise. The possibility that the driver would, after consuming drugs, drive negligently or dangerously, and thereby commit further offences, must have been foreseen in circumstances where the very act of driving under the influence of drugs was illegal".
McCallum JA, dissenting, would have allowed the appeal on the basis that illegality ought not to have displaced the duty of care. She explained:
[148] "… there was nothing unlawful in the plaintiff’s conduct in being a passenger in the car. The fact that she remained a passenger knowing that the driver had consumed drugs sounds in contributory negligence or assumption of risk but, not being unlawful, is not incongruous with the existence of a duty of care owed to her as a passenger".
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