Smith v Jenkins [1970] HCA 2; (1970) 119 CLR 397
• Date: 6 February 1970
• High Court of Australia
• Barwick C.J., Kitto, Windeyer, Owen and Walsh JJ.
• Negligence; Public policy; Duty of care
The case Smith v Jenkins (1970) [HCA 2; (1970) 119 CLR 397] before the High Court of Australia centers on issues of negligence and public policy. The court examined whether a plaintiff engaged in illegal activity with the defendant could recover damages for personal injuries caused by the defendant’s negligence.
Key Facts (Smith v Jenkins)
Illegal Joint Activity: The plaintiff and the defendant were unlawfully using a motor vehicle without the owner’s consent, constituting a breach of Section 81(2) of the Crimes Act 1958 (Victoria).
Injury During Illegality: The plaintiff sustained injuries due to the negligent driving of the defendant while jointly engaged in the unlawful use of the vehicle.
Lower Court Ruling: The Supreme Court of Victoria awarded damages to the plaintiff for negligence.
Legal Issues
Duty of Care in Criminal Context: Does a duty of care arise between parties jointly involved in a criminal act?
Public Policy Concerns: Should courts deny assistance in enforcing claims where the underlying activity is illegal?
Decision (Smith v Jenkins)
The High Court allowed the appeal, holding that:
No Duty of Care: The relationship between the parties, being one of joint criminality, does not create a duty of care enforceable in law. The court emphasized that such relationships fall outside the protective scope of negligence law.
Public Policy: The court declined to provide remedies for harm arising directly from the execution of a criminal enterprise. Recognizing a duty of care in such circumstances would contradict public policy principles.
Rationale
The court relied on the principle that participants in a criminal act are considered joint wrongdoers and cannot seek indemnity or damages against one another for injuries caused during the execution of their criminal conduct.
The doctrine of ex turpi causa non oritur actio (“no action arises from a dishonourable cause”) applies, preventing recovery for injuries sustained in the course of illegal activity.
This decision reinforces the notion that public policy considerations limit the enforceability of claims arising from illegal acts, particularly when the alleged negligence is intertwined with the criminal enterprise.
References:
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1970/2.html
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