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Joint Illegal Enterprise associated with driving under the influence of drugs may be more commonly open as a defence than once thought

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Author: Rihab Abdul-Rahman

Judgment date: 15 March 2022

Citation: Raad v Cossey [2022] NSWDC 59

Jurisdiction: District Court of New South Wales

Before: Cowdroy AO QC ADCJ

 

Principles:

  • A driver and a passenger who are both under the influence of drugs and are aware of each other’s use, are considered to engage in joint illegal enterprises.
  • It would be incongruous to recognise the existence of any duty of care owed by the driver to the passenger in the event the passenger was aware of the driver’s drug use prior to entering the vehicle.

 

Background:

The Plaintiff brought proceedings for negligence against the Defendant arising out of a single motor vehicle accident which occurred on 8 September 2011 where the Defendant was the driver and the Plaintiff was the passenger.

The Plaintiff alleges that the Defendant was driving the vehicle at high speed as it entered a bend. The vehicle veered off the roadway, striking a guard rail and then colliding with a fence, a boat and a house. The Plaintiff claims to have suffered injuries as a consequence of the negligence of the Defendant.

The Defendant challenged whether a duty of care was owed by her because of the circumstances leading up to the accident. In the alternative, the Defendant argued that the claim was defeated because the Plaintiff’s contributory negligence should be assessed at 100%.

 

Joint Illegal Enterprise

The court noted the following circumstances relevant to the defence:

  1. The arrangements made between the Plaintiff and the Defendant concerning which of them would drive the vehicle (as neither party held a driving licence);
  2. The supply of drugs by the Plaintiff to the Defendant in the hours prior to their journey;
  3. The fact that both parties consumed drugs together prior to their journey;
  4. The fact that the Defendant stopped the vehicle during the journey and informed the Plaintiff that she was unfit to drive;
  5. The fact that the Plaintiff urged the Defendant to continue to drive despite knowing or being aware of her unfitness to drive; and
  6. The Plaintiff’s consumption of drugs in the vehicle whilst he was being driven by the Defendant.
  7. The significant impairment of the Defendant’s ability to drive the motor vehicle safely brought about by her consumption of illicit drugs.

 

In finding that the defence had been made out, the Court noted that the relevant test is whether two or more people have reached an understanding or arrangement amounting to an agreement to commit an offence and an offence is committed pursuant to that agreement: McAuliffe v R (1995) 183 CLR 108.   Here, there was use of a motor vehicle being driven by a person who the Plaintiff knew, and the Defendant/driver knew, were unlicensed,  both were under the influence of illicit drugs and the vehicle was being used for the purpose of transporting illicit drugs. His Honour observed, at [162]: Notably, the act of driving was not criminal in its purpose; rather, it was the enterprise involving criminality which was sufficient to disqualify the plaintiff from recovering damages. In consequence, no duty of care was owed by the Defendant to the Plaintiff.

Contributory Negligence

The Court considered that the culpability of the Plaintiff was high. In addition to his knowledge that the Plaintiff had consumed drugs over a substantial period, had supplied her with drugs in the hours before her driving; and knew that she had no licence to drive, the Plaintiff was negligent to a high degree in travelling in the vehicle as a passenger knowing all the circumstances. Moreover, the Plaintiff urged the Defendant to resume driving after the Defendant stopped the car and informed him that she was incapable of driving.

The Court rejected the Defendant’s argument that contributory negligence should be assessed at 100%. His Honour observed that such claim ignores the fact that the Defendant was in part to blame for the accident, as she was the driver, albeit unqualified to drive and under the influence of drugs. The Court found that the following considerations warranted apportionment of 70% contributory negligence on the part of the Plaintiff:

  1. The Plaintiff knew that the Defendant did not have a driver’s licence;
  2. The Plaintiff allowed the unlicensed driver to drive his vehicle;
  3. The Plaintiff was aware, or ought to have aware that the Defendant was intoxicated by drugs;
  4. The Defendant had made it plain to the Plaintiff that she was not capable of driving after stopping the Plaintiff’s vehicle during the journey; and
  5. The Plaintiff urged the Defendant to continue to drive after it was conveyed to him that she was under an impairment to drive.

 

Final Result:

The Court entered judgment for the Defendant on the grounds that no duty of care was owed by the Defendant to the Plaintiff.  In the event this finding was wrong, the Court concluded that any damages recoverable by the Plaintiff should be reduced by 70% for her contributory negligence.

Why this case is important:

This case illustrates the availability of the defence of joint illegal enterprise in a broad range of scenarios where parties are engaged in unlawful conduct.  A person participates in such enterprise either by committing the crime itself or by being present at the time of the crime is committed, with knowledge that the crime is being committed, by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit such crime. It is established that even the presence of that person at the time of the crime is committed and readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise.

The case also reminds us that findings of 100% contributory negligence in motor vehicle claims are exceedingly rare. This is because the court must undertake a comparison of culpability. This involves an assessment of the degree of departure from the standard of care of a reasonable person, and of the importance of such acts in causing the damage. The task of comparing culpability will, in most cases, identify some degree of negligence on the part of the defendant.

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