Did you know: Illegality does not always equal liability.
Even though an individual may be engaging in illegal behaviour, if another party acts negligently and breaches their duty of care they can be liable for the damages suffered by the individual acting unlawfully.
In the High Court case of Henwood v Municipal Tramways Trust (SA) [1938], the Plaintiffs were the parents of a man who died after hitting his head on two steel posts while illegally leaning out of a tram window. The parents claimed that the Municipal Tramways Trust was negligent, whilst Tramways Trust argued that as the by-law stated no passenger “shall project or lean his head… out of any window in any tram” the deceased breached the law and was therefore at fault for his injury.
The Court determined that there is no rule that prevented the Defendant from being held liable for injuries caused by their negligence just because the deceased was breaking the law at the time.
There is no general rule that someone involved in an unlawful act cannot claim injury said to be caused by others. The duty of care is not erased as a result of unlawful behaviour, though the exact nature of this duty depends on the specific circumstances of the case. A plaintiff would still need to establish that the duty of care arises – whether it be by way of contract (as was found in Henwood) common law, or statute law. The general principles of negligence – i.e., the risk was foreseeable, not insignificant, and a reasonable person would have taken precautions against the risk of harm all need to be assessed in the circumstances. The point of the matter is that an unlawful act does not bar an individual from establishing these elements. A plaintiff in a motor accident could be an unlicensed burglar on their way to commit a crime; however, none of these circumstances affects the other road users’ duty of care to not cause a collision.
A similar approach was adopted by the Supreme Court of Victoria in Mills v Baitis [1968] where the Plaintiff, Mills, sought damages for loss of income following a transport accident. Prior to the accident, Mills earned his income working as a car mechanic from a garage located at the rear of his residence; however, this operation breached local council regulations as the property was situated in a residential zone where commercial activity was prohibited. The Defendant argued that Mills was not entitled to damages for loss of income considering his income was derived from “illegal” activity. The Court rejected this argument, noting if the Plaintiff’s wrongdoing did not contribute to the harm caused by the Defendant, the law is less likely to deny the Plaintiff compensation.
So, what’s the takeaway? The law doesn’t hand out free passes to careless defendants just because the plaintiff wasn’t exactly a model citizen. In tort law, it’s not a case of “two wrongs make a right”, depending on the circumstances it could be more like “two wrongs still mean someone’s paying damages”.
The content of this article is intended to provide a general guide to the subject matter. Specific advice should be sought about your specific circumstances.
