The Illegality Defence in the Law of Negligence after Miller v. Miller

James Goudkamp, 'The Illegality Defence in the Law of Negligence after Miller v Miller' (2011) 7 Australian Civil Liability pp.130-132.

5 Pages Posted: 1 Mar 2016

See all articles by James Goudkamp

James Goudkamp

University of Oxford - Faculty of Law

Date Written: 2011

Abstract

In 1991, the High Court delivered judgment in Gala v Preston. This landmark case concerned the defence of illegality to liability arising in the tort of negligence. It established that parties to a joint illegal enterprise do not owe duties of care inter se if the nature of the enterprise is such that it would be "impossible" or not "feasible" to ask how the reasonable person would have acted in their circumstances. The High Court recently reconsidered the defence in Miller v Miller. This was the first opportunity since Gala that the court has had to address this defence directly. The High Court replaced the principle in Gala with a test based on the legislature's purpose in creating the offence that the plaintiff committed. This article delineates that approach and identifies some difficulties with it.

Keywords: tort, defences, illegality, statutes

JEL Classification: K13

Suggested Citation

Goudkamp, James, The Illegality Defence in the Law of Negligence after Miller v. Miller (2011). James Goudkamp, 'The Illegality Defence in the Law of Negligence after Miller v Miller' (2011) 7 Australian Civil Liability pp.130-132., Available at SSRN: https://ssrn.com/abstract=2740306

James Goudkamp (Contact Author)

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
221
Abstract Views
1,065
rank
176,315
PlumX Metrics