Although not concerning medical negligence cases, this case is of interest.

In this recent Court of Appeal decision (delivered 6 Nov 09), the Court found that a driver of a stolen car did not owe any duty of care to a passenger in such vehicle, who was aware of the fact the car was stolen.  The Court found the driver and passenger were engaged in "a joint criminal enterprise" and so no duty to take care arose.

Consequently, when the driver drove negligently colliding with a pole causing injury, the passenger, who at the time was a 16 year old girl, could not recover compensation for her injuries.  The passenger’s injuries were serious and another passenger in the vehicle died from their injuries.  

The passenger was in a relationship in which she regarded the driver as akin to her ‘uncle’ and at trial evidence had been lead indicative of the driver’s insistence that the passenger remain in the vehicle, when she had asked to be dropped off.  She had made this request when the driver, after initially driving safely, had started to speed and drive more dangerously.

I would have thought, with respect, that this final point would have removed any ‘joint criminal enterprise" finding.  The passenger wished and requested to be let out of the car.  Had her request been followed, the joint illegal conduct (driving the stolen car) would have come to an end and she would not have been in the car at the time of the collision.  This point was recognised and commented upon by Buss JA.  I am surprised it wasn’t emphasised more by the passenger.

Newnes JA, the other member of the Court based his conclusions on a view that:

"the respondent could not reasonably have expected that the appellant would drive the vehicle according to the ordinary standard of care

With respect, this seems to me to make a great leap.  Why was the fact the passenger’s ‘uncle’ was driving a stolen car, necessarily reason to assume he would not drive safely and would put the occupants of the vehicle at risk by dangerously driving?  Also, what is the relevance to this of the fact, as stated above, that the passenger had requested to be let out as soon as the driver started to drive unsafely?  Doesn’t this say anything of her expectations?

This decision reversed the trial judge’s conclusion in favour of the passenger.

No doubt a shortcoming on my part, but with the greatest of respect, I can’t understand the reasons for this conclusion.  McLure JA and Buss JA suggest the foundation for such view is that given the illegality of the enterprise it is not possible to ascertain an appropriate standard of care to be expected [R3] + [R81].    

Buss JA stated [R82]:

It is not feasible or appropriate for the law to endeavour to fix a standard of care by taking into account and evaluating the incidents of the criminal enterprise upon which the appellant and the respondent were jointly engaged

I for one am not sure why this wasn’t feasible or appropriate.

Clearly a tough stance for our highest court.