The defence of joint illegal enterprise.

• Jurisdiction: Australia
• Date: 01 August 2010
• Author: Goudkamp, James

[The High Court has reserved judgment in an appeal against the decision of the Western Australian Court of Appeal in Miller v Miller (2009) 54 MVR 367. This appeal calls into question the defence of joint illegal enterprise, which is an answer to liability in the tort of negligence. It is with this appeal that this article is concerned. Two main arguments are presented. The first is that the defence is framed in a highly unsatisfactory way. It is governed by nonsensical rules, many of which are inconsistent with fundamental principles of tort law. Accordingly, should the High Court retain the defence, it is submitted that it should reformulate it so that it blends in with the legal environment in which it resides. The second and more fundamental argument is that the defence should be abolished. It is a stain on the law of torts. Not only are there no convincing arguments in support of it, but there are powerful reasons against its existence.]

CONTENTS I Introduction II The Joint Illegal Enterprise Defence in Brief III The Distinctiveness of the Joint Illegal Enterprise Defence IV The Facts and Decisional History of Miller A The Facts B The Decision of the Trial Judge C The Decision of the Court of Appeal D Did the Court of Appeal Reach the Correct Decision? V The Significance of the Court of Appeal's Decision in Miller A Convictions and Criminal Law Defences B Withdrawal C The Irrelevance of the Demise of Proximity VI Doctrinal Difficulties with the Joint Illegal Enterprise Defence A The Allocation of the Onus of Proof B The Joint Illegal Enterprise Defence Is Confined to the Tort of Negligence C The First Stage of the Test D The Second Stage of the Test 1 'Impossible' or 'Not Feasible' to Set a Standard of Care 2 The Dangerousness of the Parties' Activity 3 Could the Plaintiff Have Reasonably Expected the Defendant to Exercise Proper Care? E Withdrawal F Does the Joint Illegal Enterprise Defence Defy the Sequence in Which Issues in an Action in Negligence Should Be Addressed? G Conclusion VII Can the Joint Illegal Enterprise Defence Be Justified? A Deterring Criminal Conduct B Punishment C Preventing Wrongful Profiting D Upholding the Dignity of the Courts E Not Condoning Breaches of the Criminal Law F Distributive Justice G Forfeiture H Summary VIII The Statutory Illegality Defences and Their Relevance to the Appeal in Miller A An Outline of the Statutory Illegality Defences B Relevance of the Statutory Illegality Defences to the Appeal in Miller IX Should a Plea of Illegality Ever Be Admitted as a Defence? X Conclusion INTRODUCTION

In Smith v Jenkins ('Smith'), (1) the High Court recognised a defence of joint illegal enterprise to liability in the tort of negligence. It affirmed the existence of this defence in a series of cases, the most recent and important of which is Gala v Preston ('Gala'). (2) The correctness of this line of authority, which has proved highly influential in several other jurisdictions, (3) is presently being reconsidered by the High Court in an appeal against the decision of the Western Australian Court of Appeal in Miller v Miller ('Miller'). (4) It is with this appeal that this article is concerned. It makes two central claims. First, in the event that the Court retains the joint illegal enterprise defence, it should perform radical surgery on it so as to render it less offensive to fundamental principles of tort law. The second contention is that the Court should break with its previous decisions recognising the defence--all of which are contaminated by serious confusion--and consign the defence to legal oblivion. It serves no useful purpose and is pregnant with the potential to produce significant injustice.

II THE JOINT ILLEGAL ENTERPRISE DEFENCE IN BRIEF

It is convenient to provide a short introduction to the joint illegal enterprise defence in order to set the scene for the analysis that follows. The defence, which is only available in proceedings in negligence, will be enlivened when the following two-stage test is satisfied:

(i) the plaintiff suffered damage while engaged in a criminal (5) enterprise with the defendant; (6) and

(ii) the nature of the enterprise is such that it would be 'impossible' or 'not feasible' to ask how the reasonable person in the defendant's position would have acted.

If the joint illegal enterprise defence is engaged, no duty of care will arise. This test did not emerge Pallas-like from the decision in Smith. Rather, it evolved gradually, and was eventually settled by the High Court in Gala.

It is necessary to say a few words about Gala since it is the leading authority on the defence. The parties in Gala and two other men stole a motor vehicle after consuming massive quantities of alcohol (the defendant drank around 40 scotches and the others each imbibed an equivalent amount of beer). They set off in the vehicle towards a city in which they planned to commit breaking and entering offences. The defendant drove. En route, he fell asleep and the uncontrolled vehicle struck a tree. The plaintiff was seriously injured in the collision. The High Court unanimously held that the defendant did not owe the plaintiff a duty of care by virtue of the illegal venture in which they were engaged. A plurality consisting in Mason CJ, Dearie, Gaudron and McHugh JJ reached this conclusion by applying the two-stage test set out above. (7) Brennan J, Dawson J and Toohey J delivered separate reasons. Brennan J held that no duty should be recognised on the ground that finding a duty would impair the normative influence of the criminal law. (8) Dawson J (9) and Toohey J (10) thought that public policy militated against the erection of a duty.

A significant feature of the plurality's reasons in Gala is the recourse made in them to the concept of proximity (11) (Toohey J did not draw upon it while Brennan J (12) and Dawson J (13) expressly disclaimed reliance on it). At the time, it was thought that proximity was a touchstone for the existence of a duty of care. The logic embraced by the plurality was that if it was not 'possible or feasible' (14) to set a standard of care due to the illegal enterprise in which the parties were engaged, the relationship between the parties would lack the proximity required to generate a duty. Subsequently, the High Court, persuaded by trenchant criticism of the concept of proximity, (15) rejected it as a determinant for the existence of a duty. (16) This rejection prompted McHugh J to remark in Joslyn v Berryman that 'it may [now be that the Court] ... would no longer follow the reasoning in ... Gala.' (17) The status of the joint illegal enterprise defence is, therefore, somewhat uncertain.

III THE DISTINCTIVENESS OF THE JOINT ILLEGAL ENTERPRISE DEFENCE

The joint illegal enterprise defence is a distinct tort law defence. Unfortunately, however, it is sometimes suggested that it is analogous to, or a variant of, the plea of voluntary assumption of risk. (18) It is true that, when applicable, both defences deny the existence of a duty of care. (19) But they are different in numerous important respects. First, the defence of voluntary assumption of risk, unlike the joint illegal enterprise defence, does not require proof that the plaintiff committed an offence. Secondly, the application of the voluntary assumption of risk defence is not contingent upon evidence that the parties worked together to achieve some common goal. Thirdly, the voluntary assumption of risk defence, unlike the joint illegal enterprise defence, incorporates a subjective element (relevantly, it asks whether the plaintiff consented to the risk of injury). Fourthly, the joint illegal enterprise defence is sensitive to the blameworthiness of the plaintiff's acts (only relatively serious offending enlivens it (20)) whereas the voluntary assumption of risk defence is not. Fifthly, in some jurisdictions, the voluntary assumption of risk defence is unavailable in actions arising out of the use of a motor vehicle (21) whereas most of the cases in which the joint illegal enterprise defence applies are motor vehicle cases.

It is worth quickly noting that the joint illegal enterprise defence and the provision for apportionment for contributory negligence are also different legal creatures. The most obvious difference is that only the joint illegal enterprise defence prevents liability from arising. The apportionment provision merely provides for the plaintiff's damages to be reduced. (22) The two rules also part company in that the joint illegal enterprise defence is not triggered unless the plaintiff commits a criminal offence whereas the apportionment provision is not similarly constrained. What matters for the purposes of the apportionment provision is a lack of reasonable care by the plaintiff that contributes to his or her damage rather than participation in criminal conduct. (23)

IV THE FACTS AND DECISIONAL HISTORY OF MILLER A The Facts (24)

In the early hours of 17 May 1998, the plaintiff (the appellant before the High Court) was loitering in a car park outside a nightclub with her sister and her cousin. All three were intoxicated. They were tired and wanted to go home. But they had missed the last train and had insufficient money to pay for a taxi. Their predicament prompted them to steal a motor vehicle. While leaving the car park in the vehicle, they encountered the defendant (the respondent). The defendant, who was 27 years of age at the time, was something of a father figure to the plaintiff, (25) who was then 16 years old. He insisted on driving the plaintiff to her home in the vehicle. The defendant had been drinking and was unlicensed and was aware that the vehicle had been stolen. Once the defendant assumed the driver's seat, five of his friends piled into the vehicle, thereby bringing the total number of occupants to nine. The vehicle, a sedan, was only licensed to carry five persons and was consequently grossly overloaded. The defendant began...