39 c illegality complete defense prevents the d from

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(c) Illegality – Complete Defense (prevents the D from owing a duty of care) Wrongs Act 1958 (Vic) ss 14G Not automatically a defence, only sometimes a defence, in those cases where it is a defence it operates to prevent a duty of care arising. Burden of proof is on D to show that illegality negates the duty. Two types of cases: 1. Cases where P’s illegal conduct is independent of D’s negligence; and 2. Cases where P and D were jointly engaged in an illegal activity Case 1: Independent illegal conduct Is not necessarily a defence: Henwood Reason : Not all illegality is serious and therefore should not prevent the P from claiming negligence. Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438 (CB 541 and 542) Facts: P’s illegality consisted of putting head outside the tram. While leaning out, P hit his head on a pole and died. His parents sued the tram operator for negligence. The offered a number of reasons one of which is that the pole was too close to the tram. The D argued that the P’s illegal conduct was the cause. The court held that DoC was owed, the fact that the passenger broke the by law does not prevent a DoC from arising. Test Proposed: Where P acts independently illegally and there is a breach of statute or regulation. Where P breached a statute or regulation, the question is whether that provision was intended to prevent someone in breach of it from suing for negligence: Henwood , per Dixon & McTiernan JJ Essentially it is question of parliamentary intention. In this case Dixon and McTiernan held that the intention was to “protect them from their own folly”. What was the purpose behind the statute or regulation, was it to prevent the P from suing in negligence or some other purpose?. When is illegality a defence? 1. Illegality is sometimes not always a defence 2. Apply Henwood test. 3. If Henwood does not apply look at the seriousness of case. The more serious the more the court will be willing to make out illegality as a defence. 40
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Case 2: Joint illegal activity Two Questions: 1. What is the intention of the relevant statute? (When applicable) 2. Can the standard of care owed in the circumstances be determined only by taking into account the illegal nature of the parties’ activity? - Jackson v Harrison (1978) 138 CLR 438 If answer is yes to question 2 then illegality will be a defence. EG: Two robbing a bank, D is injured when P blows up a safe carelessly. Illegality is a defence. Question 2 – Considerations Gala v Preston (1991) 100 ALR 29 (CB 190) Facts: Two people steal a car while drunk. They crash, and the passenger sues in negligence. No statutory intention can be determined here with regards to negligence. A SoC could not be determined because it would involve taking into account P’s illegal activity and therefore illegality was a defense. Jackson v Harrison (1978) 138 CLR 438 Facts: D’s license was suspended. P knew D was driving without a valid license.
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