Held defendant driver of a stolen car did not owe a

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Held: Defendant driver of a stolen car did not owe a duty of care to the plaintiff passenger since the joint illegal enterprise of stealing the car negated the existence of the duty of care. Mason CJ, Deane, Gaudron and McHugh JJ: at 253, in cases where parties are involved in a joint criminal activity, the court has to consider the ‘appripriateness and feasibility of seeking to define the contect of a relevant duty of care,’ At 255: In the circumstances of the case to conclude that Gala should have observed that ordinary standard of care to be expected ot a competent driver would be to disregard the actual relationship between the parties and to seek to define a more limited duty of care by reference to the exigencies of the particular case would involve a weighing and adjusting of the conflicting demands of the joint criminal activity and the safety of the participants which is inappropriate for the courts to entertain or engage.” Majority turns to “back up test” can standard of care owed be taken int account by legal conduct? 1. Does normal standard of care apply here? Majority says P could not have reasonably expected D to meet that standard and drive in a careful manner. Cannot set alternative standard without taking into account the illegal activity. QUOTES: a. ‘there is no a priori reason why the illegality of a particular enterprise or activity should automatically negate the existence of a duty of care’: Gala v Preston per Mason CJ, Deane, Gaudron and McHugh JJ b. ‘The criminal enterprise was such that it was not possible to determine a standard of care for such a course of criminal activity [in Jackson v Harrison ].’: Gala v Preston per Mason CJ, Deane, Gaudron and McHugh JJ c. ‘if it is impossible or not feasible to do so [determine an appropriate standard of care], no duty of care arises.’: Gala v Preston per Mason CJ, Deane, Gaudron and McHugh JJ d. ‘the civil law cannot condone breaches of the criminal law’: Gala v Preston per Brennan J (agreeing as to outcome, dissenting as to reasoning) Jackson v Harrison: o The illegality was jointly driving car while unlicensed o Defence here was unsuccessful STATUTE:
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S 14G: courts consider whether the plaintiff engaged in an illegal activity but only in relation to a ‘claim for damages in respect of death or personal injury brought by a person (the plaintiff) against another person (the defendant) alleging negligence.’ S14 (g) WA: In determining whether bod, court have to consider whether P engaged in illegal conduct. Relevant only if illegality does not prevent doc from existing. Is a tension between s 14(g) and CL: in cases where statutory intention not decisivie and in cases of joint legal activity a duty of care wont be recognised if only way to determine standard if u take into account illegal conduct. This is in tension with 14(G) as it requires courtst to consider Ps illegality.
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