A duty of care can arise between joint participants in an illegal enterprise

Miller v Miller [2011] HCA 9

The High Court has found that (pursuant to s8 of The Criminal Code (WA)) a participant in a joint illegal enterprise can be owed a duty of care if, prior to the accident, they withdrew from the illegal enterprise. The fact that a plaintiff was involved in a joint illegal enterprise does not automatically mean that no duty of care arises. The existence of a duty of care is dependent upon on the relevant legislation that governs the illegal acts.

Facts

The 16 year old plaintiff had been drinking and wandering the streets of a Perth suburb with her sister and cousins. She had no money to get home and the last train had left, so she decided to steal a car. She managed to start a car in a nightclub car park. The defendant, aged 27, offered to drive the plaintiff and, her cousin and sister home. He got into the driver's seat and several of his friends also got into the car, totaling nine passengers. Initially the defendant drove safely,