The recent decision of the High Court of Australia in the case of Miller v Miller (Miller)1 dealt with the

defence of joint illegal enterprise in answer to an action of negligence. This paper aims to discuss this defence and its evolution through case law. The facts of the case will then be examined as well as the factors relevant to reaching its decision and the effects that this case has had on previously determined case law.

1. Illegality and Negligence.

Before the effects of Miller2 can be discussed, it is essential to examine the way in which the courts approach illegality and negligence. The court deemed Henwood v Municipal Tramways (Henwood),3 Smith v Jenkins (Smith),4 Jackson v Harrison (Jackson)5 and Gala v Preston (Gala)6 as the most on point cases, however neither party submitted that the applicable principle or principles... engaged... was authority stated in any of those cases.7 When examining these cases, the court held the view that that each party sought to have the courts restate the relevant principles.8

Illegality can take two forms: unilateral illegality where the plaintiff engages in an act contrary to law alone; and joint illegal enterprise where the plaintiff engages in an act contrary to law with one or more other parties. a) Unilateral Illegality. In Henwood,9 a tram passenger leaned out of the carriage over a guard rail in order to alleviate a sudden onset of nausea thus breaching a by-law prohibiting such an action. In doing so, he struck his head on two steel poles sustaining injuries resulting in his death.10 It was for the court to decide whether the illegal activity of the plaintiff in breaching the by-law was enough for the defendants not to be held liable for negligence. Dixon and McKiernan JJ11 pointed out that there was a direct connection between the illegal act and the injury. However they were also in the view that the plaintiffs should succeed in their claim on the footing that it was not a part of the purpose of the law

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[2011] HCA 9. Ibid. 3 (1938) 60 CLR 438. 4 [1970] HCA 2. 5 [1978] HCA 17. 6 [1991] HCA 18. 7 Miller v Miller [2011] HCA 9. 8 Ibid. 9 (1938) 60 CLR 438. 10 Henwood v Municipal Tramways Trust (1938) 60 CLR 438. 11 Ibid, 458; Miller v Miller [2011] HCA 9, 7.

against which the plaintiff offended to disentitle a person doing the prohibited act from complaining other partys neglect or default without which his own act would not have resulted in the injury.12 b) Joint Illegal Enterprise. The defence of joint illegal enterprise is determined by a two stage test outlined in Gala13. 1. That the plaintiff suffered damage while engaged in a criminal enterprise with the defendant and; 2. The nature of the enterprise is such that it would be impossible or not feasible to ask how a reasonable person in the defendants position would have acted.14 In determining the two stage test, the courts superimposed the concept of proximity into the existing law.15 While this concept is now no longer used,16 it does not automatically deem cases using this concept are no longer binding.17 In Smith18 the respondent was injured through the negligent driving of the appellant. It was unanimously held that a plaintiff could not recover damages from the driver of the motor vehicle which both plaintiff and defendant were illegally using at the time of the accident. Barwick CJ19 concluded that there was no duty of care owed by one illegal user to another; Kitto J20 stated that the actual act done negligently was itself the criminal act21 and thusly legally inseverable.22 In Jackson,23 the illegal conduct was driving while disqualified, an act in which the respondent was complicit.24 Both parties suffered injuries when the vehicle swerved across the roadway and collided with vehicles stationary on the unsealed verge of the roadway.25 The majority held that the respondent was entitled to claim damages. Jacobs and Aickin JJ agreed that illegality may add factors

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(1938) 60 CLR 438. [1991] HCA 18. 14 Gala v Preston [1991] HCA 18. 15 James Goukamp, The Defence of Joint Illegality (2010) 34 Melbourne University Law Review 425, 427. 16 Initially considered an essential element of the existence of duty of care, the High Court rejected proximity following critics of it. See Hill v Van Erp (1997) 188 CLR 159. See also McHugh Js ruling in Joslyn v Berryman [2003] HCA 34. 17 Imbree v McNeilly [2008] HCA 40. 18 [1970] HCA 2. 19 Smith v Jenkins [1970] HCA 2,400; Miller v Miller [2011] HCA 9, 15. 20 Smith v Jenkins [1970] HCA 2. 21 Ibid. 22 Smith v Jenkins [1970] HCA 2. 23 [1978] HCA 17. 24 Ibid. 25 Jackson v Harrison [1978] HCA 2.

to the relationship of the parties serving to either modify or extinguish a duty of care.26 The overarching principle emerging from this case appears to be a plaintiffs case would only fail when the joint illegal enterprise in which he and the defendant were engaged was such that the court could not determine the particular standard of care to be observed.27 In Gala28 the plaintiff, defendant and two others stole a car after consuming vast quantities of alcohol. The purpose of their trip was to commit break and enter offences. The plaintiff sued the defendant after the car struck a tree. It was held on appeal that due to the illegality of the conduct and the purpose of the stealing and using of the vehicle, no duty of care was owed.29

2. The Facts of Miller v Miller and its Progression through the Courts.
a) The Facts.30 On the morning of 17 May 1998 the appellant stole a car in order for her sister to drive them and a younger relative home. All three were intoxicated. As they were leaving the car park, their uncle witnessed them leaving and told them that he would drive them home. He was unlicensed, aware that the vehicle was stolen and also intoxicated. Five other people then got into the sedan resulting in it being grossly overloaded.

Initially the respondent obeyed the speed limit, however after a time, he began to speed and run red lights. Concerned for her safety, the appellant asked the respondent to slow down, following this with two requests for the driver to stop and let her out of the vehicle. The respondent ignored her requests and continued driving, ultimately losing control of the vehicle and hitting pole. The accident resulted in the death of one passenger and the appellant being rendered a tetraplegic.

The District Court of Western Australia held that the defence of joint illegal enterprise did not apply and a duty of care was owed to the appellant.31 However this was overturned upon appeal.32 The High Court of Australia has since allowed the appeal, thus the driver owed a duty of care to the appellant.33

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Ibid. th Duncan Holmes, Butterworths Student Companion (LexisNexis Butterworths Australia, 6 ed, 2003) 69. 28 [1991] HCA 18. 29 Above n 28, 49. 30 This summary of the case is taken from Miller v Miller [2011] HCA 9. 31 Miller v Miller (2008) 57 SR (WA) 358. 32 Miller v Miller [2009] WASCA 199.

3. The Decision.
The factors relevant to the High Court in reaching this decision: Ex turpi causa non oritur actio34 and its place in tort law.35 Does the illegality of the plaintiffs conduct prevent the recovery of damages?36 Policy considerations.37 Statutory considerations.38

b) Ex Turpi Causa Non Oriture Actio. Whether this maxim has a place in torts has been questioned by courts and academics alike.39 In Smith,40 in a lengthy examination of ex turpi, Windeyer J concluded that the maxim did not relate to tort law41 and had been taken into territory in which it did not belong.42

c) Plaintiffs illegal activity and the recovery of damages. Illegality in itself will not automatically give rise to an action in negligence failing. As observed by the majority in Miller,43 Pollock stated that there was no such general rule of law stating that a man cannot sue for injuries suffered at a time where he himself was a wrongdoer unless some unlawful act or conduct on his own part is connected with the harm suffered by him as part of the same transaction.44 The issue of the plaintiffs illegality also raises issues of causation and contributory negligence.45 As determined in Henwood46 causation alone does not provide a satisfactory principle by which to
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[2011] HCA 9. Translated as a person who suffered damage at the hands of another while acting in an unconscionable manner should be deprived of legal remedy. 35 Miller v Miller [2011] HCA 9. 36 Ibid. 37 Ibid [12]- [15]. 38 Miller v Miller [2011] HCA 9. 39 Margaret Fordham, The Role of ex Turpi Causa in Tort Law (1998) December 1998 Singapore Journal of Legal Studies 238. 40 [1970] HCA 2. 41 Ibid. 42 Smith v Jenkins [1970] HCA 2. 43 [2011] HCA 9. 44 Pollock, The Law of Torts, (1887) at 150 in Miller v Miller [2011] HCA 9. 45 While found to be contributory negligent at first instance, the reasoning by which the Supreme Court of Appeal and High Court reached their decision deemed her not be, therefore contributory negligence is not relevant to this discussion. 46 (1938) 60 CLR 438.

resolve the issue.47 To resolve this issue the courts determined that where the harm was suffered in the course of a joint illegal enterprise rather than unilateral illegality attention would need to be focused upon whether the illegal act materially caused the injuries by increasing the risk of injury.48

d) Policy Considerations. To address the policy considerations, the courts identified what they were and how and why there were engaged in the case.49 The overriding policy consideration is the coherence of the law.50 These considerations were summarised as: the principles applied in relation to the tort of negligence must be congruent with those applied in other areas of civil law; Would it be incongruous for the law to punish a party for criminal conduct, yet allow the recovery of damages in the civil court for harm suffered as a result of that criminal conduct?

i)

Illegality and Civil Law

It has been stated that *n+o Court will lend its aid to a man who founds his... action on an... illegal act.51 This issue becomes less clear where there are not any statutory provisions expressly declaring an illegal act or how illegality may arise. It becomes an issue of statutory interpretation, requiring the consideration of:
circumstances relevant upon a question of statutory interpretation, including the nature, scope and terms of the statute, the nature of the evil against which it is directed, the nature of the conduct prescribed and the pre-existing state of the law.
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ii)

Punishing in Criminal Courts and the Awarding of Damages in Civil Courts.

In regard to the perceived inconsistencies that lie within the punishing of a party for criminal conduct, yet awarding damages for injuries sustained during that conduct, the majority articulated

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Henwood v Municipal Tramways Trust (1938) 60 CLR 438 as cited in Miller v Miller [2011] HCA 9. Miller v Miller [2011] HCA 9. 49 Ibid. 50 Ibid. 51 Holman v Johnson [1775] EngR 58. 52 Kitto J in Sovar v Henry Lane Pty Ltd [1967] HCA 31 cited in Miller v Miller [2011] HCA 9.

that it is by reference to the relevant statute, and identification of its purposes, that any incongruity or lack of coherence denying the duty of care will be found.53 Furthermore:
The refusal to find a duty of care between those complicit in the offence follows from the... identification of the way in which the statutory proscription of illegal use of a vehicle seeks to promote road safety. The offence is illegally taking and using a vehicle is dealt with as it is because of its association with reckless and dangerous driving. The statutory purpose of a law proscribing dangerous or reckless driving in not consistent with the offender owing a co- offender a duty to take reasonable care. [This is in] accord with the way in which the courts approach... illegality in contract... and trusts... [T]he root principle that is engaged is... sufficiently captured by any of the expressions incongruity, contrariety or lack of coherence.
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e) Statutory Provisions The respondent, in criminal proceedings, pled guilty to dangerous driving causing death, dangerous driving causing grievous bodily harm and driving under the influence of alcohol. The illegal taking and using of the motor vehicle was carried out by both parties.55 S 371A of the Criminal Code (WA), dealing with the illegal taking and using of a motor vehicle56 was identified as the relevant statutory provision to be considered in this case.57 In looking to the history of this offence, it was noted that while originally a relatively minor offence, the law had evolved over time making it a serious crime equated with theft, and when associated with dangerous driving, leads to aggravated forms of the offence.58 Of importance was s 8 of the Code which provides:
(1) When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence. (2) A person is not deemed under subsection (1) to have committed the offence if, before the commission of the offence, the person
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Miller v Miller [2011] HCA 9, [74]. Ibid [101] [102] 55 Ibid. 56 (1) A person who unlawfully (a) uses a motor vehicle; or (b) takes a motor vehicle for the purposes of using it; or (c) drives or otherwise assumes control of a motor vehicle, without the consent of the owner or the person in charge of that motor vehicle, is said to steal that motor vehicle. 57 Miller v Miller [2011] HCA 9. 58 Miller v Miller [2011] HCA 9.

(a) (b)

withdrew from the prosecution of the unlawful purpose; and by words or conduct, communicated the withdrawal to each other person with whom the common intention to prosecute the unlawful purpose was formed; and
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(c)

having so withdrawn, took all reasonable steps to prevent the commission of the offence.

The majority held the view that as the appellant had twice asked to be let out of the vehicle prior to its running off the road, she had communicated in words her withdraw from the unlawful conduct.60 They also noted that there were no reasonable steps she could take to prevent the continued illegal use of the vehicle.61 Thus, as the appellant has withdrawn from the illegal conduct (the illegal taking of the vehicle, the result of which dangerous driving was a probably consequence) prior to the collision the respondent owed her a duty of care at the time of the impact.62

4. The Effects of Miller v Miller.

In reaching its decision in Miller,63 the courts have affirmed the principles outlined in Gala,64 Smith65 and Henwood66. This is the first decision that clearly outlines the principles of and elements required to prove a defence of joint illegality. It has established that where the joint illegality relates to the unlawful use of a vehicle by driver and passenger, no duty of care is owed and an action in negligence will fail.67 Miller68 also clearly highlights that the purpose of the legislation deeming the conduct to be illegal must be looked at. Once determined, whether this purpose imputes a duty of care not be owed must be decided. Withdrawal from the illegal conduct will determine a duty of care is owed. Miller69 is the leading authority for the defence of joint illegality, the withdrawal from the illegal conduct and need for statutory interpretation when determining a duty of care. As Heydon J stated in his dissenting judgement, the decision of the majority that s 8(2) applies in the present circumstances is the ratio decidendi of this case... It will bind every court in the country in the law of tort and the criminal law.70

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Criminal Code (WA). Miller v Miller [2011] HCA 9, [104]. 61 Ibid. 62 Ibid, [106]. 63 Ibid. 64 [1991] HCA 18. 65 [1970] HCA 2. 66 (1938) 60 CLR 438. 67 Amanda Stickley, The Defence of Joint Illegal Activity Must be Looked at in Context (2011) 31 Qld Lawyer 78, 81. 68 [2011] HCA 9. 69 Ibid. 70 Miller v Miller [2011] HCA 9 [119].