Injured passengers and the defence of illegality

Abstract

The scope of the defence of illegality in the law of tort is often controversial and difficult. This paper examines the issues in the specific context of negligence claims for personal injury suffered by a passenger against a driver with whom he was engaged in an illegal venture. This problem has been considered in a recent decision of the High Court of Australia and two decisions of the Court of Appeal in England. These cases are analyzed and several different approaches to the application of the illegality defence are identified. The proposition that it is impossible to identify the driver’s standard of care in such cases is rejected. The notion that the scope of the defence of illegality can be determined by considering whether to decline to apply it would lead to ‘incongruity’ within the law has attracted support in Australia and Canada. Nevertheless the paper argues that the apparent utility of the test as a relatively straightforward means of determining when claims should fail is deceptive, and that it is unworkable in cases of any complexity. The proposition that causation can provide a necessary but not sufficient condition for the application of the illegality defence in the type of case under consideration, however, is welcomed. But it is also concluded that some reference to intuitive perceptions as to the gravity of the parties’ illegal adventure will often be inescapable in order to avoid applying the defence to less serious cases in which its application would be unjust.