Driver did not owe passenger duty of care in illegal street race, judge rules
His Honour Judge Smith SC has determined that a driver did not owe his passenger a duty of care in circumstances in which the passenger was a voluntary participant in an impromptu illegal street race.
In Taylor v Hall  NSWDC 321, the plaintiff was a 24-year-old female who sustained significant orthopaedic injuries as a result of an accident that occurred in the early hours of 5 April 2016 on a semi-rural back road in Aberdeen, New South Wales. The plaintiff was a front seat passenger of a vehicle driven by the defendant when he lost control of the vehicle at high speed and collided with a tree.
Prior to the accident, the defendant, plaintiff and another passenger had driven from a mutual friend’s home to the outskirts of Aberdeen where their friend’s vehicle had broken down.
Following repairs to the broken down vehicle the group returned to their vehicles and commenced their return journey. During the course of that journey, the drivers reached speeds of up to 180 km/h in close proximity to each other. The driving of the vehicles was described at various times in the evidence as a ‘rally’, a ‘race’ and ‘cat and mouse’.
In excess of 8 km from the breakdown location, the vehicles were travelling on a straight, narrow stretch of the road at very high speed when the driver of the second vehicle attempted to overtake the defendant, causing the defendant to move his vehicle to the left to avoid a collision. The defendant lost control of the vehicle and collided heavily with a tree, as a result of which the vehicle caught fire. The defendant, plaintiff and other passenger fled the scene of the accident in the second vehicle. They did not report the accident to police or emergency services.
The defendant did not seek medical treatment for injuries he sustained in the accident. The plaintiff was taken to hospital by the driver of the second vehicle but initially reported her injuries were sustained due to a fall. She only conceded her involvement in a motor vehicle accident when confronted by hospital staff due to evidence of seat belt bruising.
The defendant also initially gave a false report concerning the circumstances of the accident, informing police the accident was caused when he swerved to miss a kangaroo. He was subsequently charged with dangerous driving under section 52A(c) Crimes Act 1900, to which he plead guilty.
It is fair to say that both parties had credibility issues and the trial judge’s findings on credit were critical to the liability determination.
The plaintiff brought proceedings pursuant to the Motor Accidents Compensation Act 1999. The defendant denied he owed the plaintiff a duty of care. The Defence relevantly stated:
‘Further, and in answer to the whole of the Statement of Claim, the defendant denies that he owed the plaintiff a duty of care on the basis that at the time of the accident the plaintiff and defendant were engaged in a joint illegal enterprise.
Particulars of joint illegal enterprise
- Voluntarily participating in an illegal race between the defendant’s vehicle and the vehicle driven by Steven Herbert on and about Dartbrook Mine Access Road contrary to section 115 Road Transport Act 2013.
- Complicity in the dangerous driving of the defendant’s vehicle contrary to section 52A(3)(c) Crimes Act
- Complicity in the driving of a motor vehicle on a road furiously, recklessly or at a speed or in a manner dangerous to the public contrary to s.117 of the Road Transport Act
Further and in answer to the whole of the Statement of Claim, the defendant denies liability on the basis of the doctrine of ‘volenti non fit injuria’ and says that at the time of the accident the plaintiff was a voluntary participant in motor racing within the meaning of section 140(3)(b) Motor Accidents Compensation Act 1999.
Further and in the alternative, the defendant says that if he is found to have breached a duty of care to the plaintiff, that the plaintiff was contributorily negligent.
Particulars of contributory negligence
- Voluntarily travelling in a vehicle being driven recklessly, dangerously and/or at high speed.
- Failing to alight from the vehicle after it had been driven recklessly, dangerously and/or at high speed in the hours prior to the accident.
- Failing to direct the defendant to stop and/or slow down.
- Failing to direct the defendant to allow her to alight from the vehicle.
- Failing to take sufficient care for her own safety.’
Section 115(1) Road Transport Act 2013 (RTA) prohibits a person from organising, promoting or taking part in, inter alia, ‘any race between vehicles on a road’ without approval and imposes a maximum penalty of 30 penalty units (in the case of a first offence) or 30 penalty units or imprisonment for 9 months or both (in the case of a second or subsequent offence). The phrase ‘any race’ is not defined in the Act.
The plaintiff did not file a Reply, but by way of submissions denied the vehicles were engaged in an illegal street race primarily on the basis that there was no evidence of an agreement between the drivers to race and their driving lacked the features normally associated with an organised contest (such as a pre-arranged start and stop place). The plaintiff submitted the fact the defendant’s vehicle passed the second vehicle on the journey was due to other driver stopping to perform ‘doughnuts’, rather than being indicative of a contest between the drivers. The defendant’s conduct in moving his vehicle to the left to allow the other vehicle to pass immediately prior to the defendant’s loss of control was, in the plaintiff’s submission, also not consistent with the drivers being engaged in a race.
The plaintiff further denied she was a voluntary participant in the manner of the defendant’s driving on the basis the relevant driving was spontaneous, occurred mere moments prior to the loss of control and she had asked the defendant to slow down, which he failed to do.
In a decision handed down on 2 July 2020, Smith J made the following key factual findings, each of was were contrary to the submissions put on behalf of the plaintiff:
- The defendant was engaged in a contest of speed with the second vehicle prior to the collision.
- The racing commenced shortly after the two vehicles commenced their return journey from their meeting point (a distance the parties agreed exceeded 8 km).
- The vehicles engaged in a number of overtaking manoeuvres.
- The two cars travelled side by side for a number of seconds immediately prior to the defendant’s loss of control.
- The vehicles were both being driven in a furious and reckless manner contrary to section 117 Road Transport Act 2013.
- Neither the plaintiff nor other passenger asked the defendant to slow down, change his manner of driving, nor requested the defendant stop the vehicle. Indeed both passengers were laughing.
Smith J accepted that the meaning of ‘any race’ for the purpose of section 115 Road Transport Act 2013 (RTA) should be given its ordinary meaning and that ‘while a pre-arranged start and stop place, a prize and rules may be indicia of a contest, they are not necessary to its existence’.
His Honour followed the decision in Director of Public Prosecutions v Belani (2005) 64 NSWLR319 in which Johnson J held the phrase ‘any race’ in the context of section 115 RTA includes an impromptu or unplanned race. There, the drivers’ conduct included accelerating, jostling for position, changing lanes without indicating, trying to get around one another and travelling at speeds well in excess of the speed limit.
Smith J noted that the illegal conduct on the part of the plaintiff may deny the existence of the usual duty of care a driver would owe to a passenger: Miller v Miller (2011) 242 CLR 446. He was not, however, persuaded that at the time of the accident the parties were engaged in a ‘joint illegal enterprise’. This was primarily due to the lack of any agreement between the parties (express or implied) to commit an offence. His Honour therefore did not accept that the criminal acts of the defendant in the manner of his driving of the vehicle could be attributed to the plaintiff. Such derivative liability would, in his Honour’s view, require more than mere willing participation in the defendant’s conduct by the plaintiff. In this regard, his Honour gave consideration to Il v The Queen (2007) 262 CLR 268.
In the absence of a common illegal purpose, Smith J also did not accept that the plaintiff was complicit in the dangerous driving of the vehicle contrary to section 117 Road Transport Act 2013. In his Honour’s view, there was insufficient evidence the plaintiff intentionally encouraged to defendant to take part or to continue to take part in the race. Mere participation did not amount to complicity.
However, Smith J was of the view that the principles in Miller concerning the impact of the illegal conduct of the plaintiff on the existence of a duty of care were still applicable. The joint judgment of the High Court in Miller (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) posited the issue as follows:
‘16. … Ultimately, the question is: would it be incongruous for the law to proscribe the plaintiff’s conduct and yet allow recovery in negligence for damage suffered in the course of, or as a result, of that unlawful conduct?...
73. … the answer must lie in whether it is incongruous for the law to provide that the driver should not be using the vehicle at all and yet say that, if the driver and another jointly undertake the crime of using a vehicle illegally, the driver owes the confederate a duty to use it carefully when neither should be using it at all’.
‘74. … if a statute had been contravened, careful attention must be paid to the purpose of that statute. It will be by reference to the relevant statute, and identification of its purposes, that any incongruity, contrariety or lack of coherence denying existence of a duty of care will be found.’
In Bevan v Coolahan  NSWCA 217 Lemming JA (with whom Basten JA agreed) observed that the question was to be addressed ‘at the level of duty, not the outcome of the legal analysis at the level of breach, causation and damages in any particular case.’
In this case, the defendant had submitted that the purpose of the offences created by ss.115 and 117 RTA was to regulate or control the manner in which a vehicle is driven for the protection of road users, and the public generally, from the consequences of motor vehicles being driven contrary to the various sections. It was therefore incongruous for the defendant to owe the plaintiff a duty of care in circumstances in which the plaintiff willingly participated in conduct which was in breach of those provisions. The plaintiff’s submissions in reply did not engage with the defendant’s denial of a duty of care based the ‘purpose test’.
On this issue, Smith J was of the view it was sufficiently clear from the Defence that the defendant asserted that as a result of plaintiff taking part in a race contrary to section 115 RTA the defendant did not owe the plaintiff a duty of care.
His Honour observed that street racing is an inherently dangerous activity and drivers racing ‘necessarily do not take the care that would ordinarily be their duty to take’. Smith J found that the plaintiff’s failure to ask the defendant to slow down or to let her out and her conduct in laughing while the vehicle was being driven dangerously and recklessly was sufficient to demonstrate her voluntary participation in that activity.
Applying Miller, and in accordance with the defendant’s submission, Smith J found the existence of a duty of care in these circumstances was indeed inconsistent with the purpose of the statutory prohibition on illegal street racing in section 115 RTA which was to enhance public safety and therefore determined that the defendant did not owe the plaintiff a duty of care.
Significantly, Smith J also found for the defendant on the alternative defence of ‘volenti non fit injuria’.
Section 140 Motor Accidents Compensation Act preserves that common law defence and states:
140 Defence of voluntary assumption of risk
(1) Except as provided by subsection (2), the defence of volenti non fit injuria is not available in proceedings for damages arising from a motor accident but, where that defence would otherwise have been available, the amount of any damages is to be reduced to such extent as is just and equitable on the presumption that the injured person or deceased person was negligent in failing to take sufficient care for his or her own safety.
(2) If a motor accident occurs while a motor vehicle is engaged in motor racing, the defence of volenti non fit injuria is available in proceedings for damages brought in respect of the death of or injury to:
(a) the driver of the vehicle so engaged, or
(b) a passenger in the vehicle so engaged, other than a passenger who is less than 18 years of age or who otherwise lacked capacity to consent to be a voluntary passenger.
(3) For the purposes of subsection (2), a motor vehicle is engaged in motor racing if it is participating in:
(a) an organised motor sports event, or
In light of his Honour’s findings of fact, the pre-conditions under section 140(2) were proven and the defence was therefore available to the defendant. Smith J noted that in accordance with Carey v Lake Macquarie City Council  NSWCA4, the defence required proof of three matters:
‘1. That the plaintiff perceived the existence of the danger;
- That he or she fully appreciated it;
- That he or she freely and voluntarily agreed to accept the risk’
His Honour found that, on her own evidence, the plaintiff was ‘well aware’ of the danger involved in the defendant’s driving and she ‘fully appreciated’ it. Her initial failure to disclose she had been involved in an accident to hospital staff and her failure to provide an explanation for this under cross-examination implied she knew she had been involved in a race.
Smith J found that obvious conclusion to be drawn from the plaintiff’s willing participation in the race is that she freely and voluntarily agreed to accept the inherent risk of physical injury which racing involved.
In the event the decision on primary liability is set aside on appeal, his Honour made a notional assessment of contributory negligence of 50% observing that the plaintiff had ‘plenty of time’ over the course of the period the defendant was driving a high speed to have complained about the speed and encouraged the defendant to slow down or stop and let her out.
This is one of few decisions in which Miller has been applied in relation to a motor vehicle accident. It is consistent with the authorities which indicate that the circumstances have to be ‘extraordinary’ or ‘special and exceptional’ for no duty to arise.
 Recently applied in Bevan v Coolahan  NSWCA217, a claim under the Motor Accidents Compensation Act 1999.
 At .
 McHugh J Josslyn v Berryman  HCA34.
See also: Nominal Defendant v Buck Cooper  NSWCA 280.
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