Illegal enterprise

In Quine v Keerasawat 27/10/14 [2014] WADC 150 per Herron DCJ, P was rendered a quadriplegic when the vehicle in which he was a passenger left the road and hit a tree. He had no recollection of the circumstances leading up to the accident. D, who was driving, denied owing P a duty of care alleging both were engaged in a joint illegal enterprise at the time of the crash and no duty was therefore owed to P. The defence pursuant to the Offenders (Legal Action) Act 2000 (WA) was also considered. His Honour found that P was so engaged and dismissed his claim on both grounds. D had stolen the car that day, although P was not involved in the theft. By reason of a series of inferences His Honour rejected P’s argument that he was unaware the vehicle was stolen. P had a record for car stealing and mixed with a crowd that stole cars. D left a gathering to “get a car” and returned with a vehicle no one had seen before. P and D had known each other for years. After the crash P was wearing latex gloves consistent with a desire not to leave fingerprints in the stolen car. The test in Miller v Miller (2011) CLR 446 was applied – P was complicit in the theft and was therefore not owed a duty of care. Unlike the P in  Miller v Miller he did not attempt to withdraw from the illegal enterprise prior to the accident.