Does a duty of care exist to the Plaintiff if both the Plaintiff and the Driver were on illicit drugs at the time of the accident?

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".

Section 54 of the Civil Liability Act 2002 provides that damages are not recoverable for death or injury where the conduct of the plaintiff constitutes a serious offence. However, subsection 2 excludes operation of the provision where the conduct of the defendant constitutes an offence (whether serious or not). The question for the Court of Appeal was whether s54 displaces the common law defence of joint illegal enterprise. In finding that it does not, Basten JA explained:

[24] "Section 54, being directed to the existence of a duty of care, and in fact assuming the existence of such a duty, is not engaged at the very point at which the general law principles apply, namely denial of the existence of a duty….Section 54 has quite a limited area of operation and is unlikely to apply to most motor vehicle accidents. That being so, there is no reason to suppose that it was intended to exclude the operation of the general law principles in these areas."

Contributory negligence

The Court addressed the issue of contributory negligence which would otherwise have arisen had a duty of care existed. Basten and Leeming JJA agreed the Trial Judge's assessment of 25% was too low, increasing it to 50% because:

[127] "All four individuals had ingested crystal methamphetamine that afternoon, and had driven in order to obtain more of the drug. Ms Bevan was found to be their “ringleader”. It was she who had paid for the illicit drugs. It was she who provided the pipe by which they were consumed. True it is that Ms Bevan did not own the car nor was she driving it, but she was in a real sense the cause of the expedition to acquire more drugs. Senior counsel for the respondents proposed a finding of 50% contributory negligence, stating that “50% is frankly a finding that would err in generosity to the appellant.”

Why this case is important

For a defence of joint illegal enterprise to succeed, it is sufficient if the plaintiff's conduct was incidental to the criminal enterprise. Here, the use of a car to travel to and from the place of purchase of illicit drugs was an essential element in the enterprise. The possibility that the driver would, having consumed drugs, drive negligently, must have been foreseen. Arguably, the principle would not be invoked if the illegal activity was limited to a purpose and with consequences unconnected to the use of the vehicle, such as an assault.

Section 54 of the Civil Liability Act 2002 does not displace the common law principle and by reason of subsection 2, has doubtful application to motor accidents.

If this case was being considered in the context of the Motor Accidents Injuries Act 2017 the Plaintiff:

1. would be entitled to statutory benefits for at least 26 weeks pursuant to section 3.1(1);
   
   
2. would be entitled to statutory benefits after 26 weeks (subject to the "minor injuries test") because she was not 'mostly at fault' (given the assessment of 50% contributory negligence"); and
   
   
3. would not be entitled to damages because the owner and driver did not owe her a duty of care.

The serious driving offence exclusion in s 3.37 does not apply because, while the plaintiff was engaged in criminal activity, the plaintiff was a passenger and therefore not engaged in any activity which would result in a conviction for a driving offence.

*Basten JA, Leeming JA & McCallum JA