Captain v Wosomo[2017] QSC 86

SUPREME COURT OF QUEENSLAND

1. In the early hours of 8 February 2013, the plaintiff was the front seat passenger in a vehicle being driven by the first defendant (“the defendant”). The plaintiff was 14 years nine months old; the defendant was 16. Two other boys were in the back seat of the vehicle, which was a dual cab Toyota Hilux utility.

2. At about 1.40 am^[1], the vehicle crashed into a light pole in Gulliver Street, Aitkenvale, just off the intersection with Ross River Road.

3. The plaintiff sustained severe head injuries. He has been left significantly disabled, and requires 24 hour care and attention.

4. The defendant, the plaintiff, and the other two boys had stolen the car from its owner’s driveway a short time before the incident.

5. Pursuant to an order made on 4 August 2016, the hearing before me was for the purpose of determining liability.

6. Counsel for the plaintiff conceded the potential application, on the facts of this case, of s 45 (“Criminals not to be awarded damages”) of the Civil Liability Act 2003 (Qld) (“CLA”) but argued that:

1.  by the time of the incident, the plaintiff had effectively withdrawn from the joint criminal activity;

2.  alternatively, if the plaintiff does fall under the exclusion in s 45(1), the Court should be satisfied that, in the circumstances of this case, the application of that exclusion would operate harshly and unjustly, and the Court should order an assessment of damages.

7. Counsel for the defendant joined issue with both of those arguments, but also advanced the anterior position, namely that, in the circumstances of this case, there was no duty owed by the defendant to the plaintiff, and accordingly consideration of s 45 did not arise.

8. Further, there were other defences raised and a question of contributory negligence arising from the fact that the plaintiff was not wearing a seatbelt.

The incident

9. The plaintiff’s disabilities are such that he could not give evidence.

10. The only witness called for the plaintiff was Ollingsward Gisu. He was one of the passengers in the back seat of the vehicle. Whilst he did not give his age in evidence, he did say that he was older than the plaintiff. He appeared to be about the same age as the defendant.

11. The defendant was called to give evidence. During the plaintiff’s case, I was also played the video recording of the defendant’s police interview on 12 February 2013.

12. Neither Mr Gisu nor the defendant was a particularly reliable witness. Both were clearly intimidated by the courtroom setting, and each had varying degrees of difficulty in recalling and recounting details of the events of the evening in question.

13. Despite those difficulties, it is possible to piece together from their evidence, and from the statements given by various persons to police, from the statements of the police investigators, and from the maps and photographs which were tendered, a sufficient recitation of what occurred on the evening.

14. Earlier in the evening on 7 February 2013, the defendant and a group of boys including Mr Gisu, but not including the plaintiff, had been at the defendant’s auntie’s house. This group of boys left the auntie’s house to go to a service station shop to buy cigarettes and soft drinks. They then returned to the auntie’s house.

15. Some time later, this group of boys left the auntie’s house to walk one of the boys, Ryan Billy, to his home. Before they arrived at that boy’s home, they ran into the plaintiff. The plaintiff was out with another boy, and was being “doubled” on that boy’s bicycle. The plaintiff insisted on going with the defendant and his group – he wanted to “hang around” with them.^[2]  This group of boys then walked to Ryan Billy’s house and dropped him off there.  The defendant said that, before doing this, the group had spent some time sitting outside the municipal library to access the free Wi-Fi. 

16. In any event, after leaving Ryan Billy at his house, the remaining four boys then walked to the corner of Rogers Street and Cahill Street and started talking about stealing a car. It is not possible, on the evidence, to identify which of the boys instigated this discussion, but I am satisfied that all of the boys, including the plaintiff and the defendant, took part in this discussion and formulated a plan to look for a car to steal.

17. The group of boys walked on, looking for opportunities to gain access to properties or cars. When they reached the house at 32 Rogers Street, they found the subject vehicle in the driveway. Some of the boys went underneath the highset house. The defendant searched the vehicle and found the keys in the ignition. He called to the other boys, and told them he had found the keys.

18. Without turning the engine on, the four boys (including, obviously, the plaintiff) pushed the vehicle down the driveway and out into the street. They then jumped into the car – the defendant in the driver’s seat, the plaintiff in the front passenger seat, Mr Gisu in the back seat behind the defendant, and the other boy, Joey, behind the plaintiff.

19. None of the boys put their seatbelts on.

20. The defendant started the car, and the vehicle proceeded down Rogers Street and turned left into Ross River Road. The vehicle then travelled along Ross River Road until it veered left into Gulliver Street. The vehicle traversed diagonally the lanes in Gulliver Street, and rammed into a light pole outside 7 Gulliver Street. The distance along Ross River Road from Rogers Street to the intersection of Gulliver Street is 595 metres.^[3]

21. In his police interview, the defendant said that he had tried to turn too late into Gulliver Street – that he was already past the traffic lights at that corner when he was told to turn left, that he was too slow turning left, and that he then drove into the light pole.

22. In evidence before me, the defendant said that as they were driving along Ross River Road, at a point after the intersection with West Street but before Gulliver Street, some of the boys told him to go left, and another said go right. He said he got confused “because everyone was just yelling into my ears”, he tried turning slightly left, and he lost control.^[4]

23. The defendant described accelerating along Ross River Road. He said he checked the speedometer when they were outside the Cathedral School. (That school is on Ross River Road at a point somewhat closer to the Gulliver Street intersection than Rogers Street.) He said at that point he was travelling 70 – 80 kilometres per hour. (In fact, the defendant said “miles”, but was obviously mistaken. I will take his reference to be to kilometres.) He said that when he got to the Gulliver Street intersection he was travelling at a speed of 80 – 85 kph. He said he was looking at the speedometer when he lost control of the vehicle. He said he was going so fast because he was “in shock” and “didn’t know what to do either”.^[5]

24. Mr Gisu estimated the vehicle’s speed when it reached the West Street intersection at 80 - 90 kph.

25. As to the reason for stealing the car, Mr Gisu agreed that the group of boys discussed in a general sense taking the car just to cruise around in it, to have a joyride, and as something to do for excitement.^[6]

26. The defendant said that he knew taking someone else’s property was wrong, but he did it because he “thought it was just going to be fun”, saying that they were “teenagers back then”.^[7]

27. There was a difference between Mr Gisu and the defendant as to what the passengers in the vehicle were saying to the defendant immediately prior to the crash.

28. Mr Gisu’s evidence was that just before the Gulliver Street intersection, he and other boys in the vehicle were yelling at the defendant to “slow down”. He identified that he and at least one of the other boys were yelling this, although his evidence could well have extended to including the plaintiff as well.^[8]  Under cross-examination, however, he referred only to he and Joey as being the ones yelling.^[9]  In any event, he was clear that the yelled message was “slow down”.  He denied that any of them had been yelling directions such as “turn left” or “straight ahead”.^[10] 

29. The defendant, however, denied that anyone had told him to “slow down”. He agreed that there was yelling in the car just before the crash, but said that the other boys were yelling directions at him. His evidence was that no-one yelled at him to go slow, and that all he heard was “left, right, straight”.^[11]

30. I prefer the evidence given on this point by Mr Gisu. Of the two, the defendant struck me as the more unreliable witness. He denied, for example, wearing gloves at the time of the incident, but there was unchallenged evidence before me^[12] from a witness who attended the scene of the crash (Mr Brasher) in which he confirmed seeing the defendant wearing what he described as cream coloured gardening gloves.  One of the attending police officers (Sergeant Sawtell) gave an unchallenged statement^[13] in which she described seeing the defendant take off a pair of white latex gloves and drop them into the foot well in front of the driver’s seat.  The defendant was also defensive in many of his answers, and presented as one who was seeking to spread the blame for the incident amongst all the participants. 

31. Accordingly, I find that while in Ross River Road, shortly before the intersection with Gulliver Street, Mr Gisu and Joey (at least) were yelling at the defendant to “slow down”.

Did the defendant owe the plaintiff a duty of care?

32. The defendant’s primary argument was that, in the particular circumstances of this case, the defendant did not owe the plaintiff a duty of care at law, and accordingly it is unnecessary to have resort to s 45 of the CLA.

33. For the plaintiff, it was argued that s 45 is a modification of the common law, and that it has been assumed that the statutory illegality defences have ousted the common law on illegality, including the defence of joint illegal enterprise.

34. Section 45 of the CLA provides:

“45 Criminals not to be awarded damages

1. A person does not incur civil liability if the court is satisfied on the balance of probabilities that –

1.  the breach of duty from which civil liability would arise, apart from this section, happened while the person who suffered harm was engaged in conduct that is an indictable offence; and

2.  the person’s conduct contributed materially to the risk of the harm.

2.  Despite subsection (1), the court may award damages in a particular case if satisfied that in the circumstances of the case, subsection (1) would operate harshly and unjustly.

3.  If the court decides to award damages under subsection (2), the court must assess damages on the basis that the damages to which the injured person would be entitled, apart from this section, are to be reduced, on account of the injured person’s conduct, by 25% or a greater percentage decided by the court to be appropriate in the circumstances of the case.

4.  It does not matter whether the person whose conduct is alleged to constitute an indictable offence has been, will be or is or was capable of being proceeded against or convicted of an indictable offence.

5.  If the person has been dealt with for the offence, it does not matter whether the person was dealt with on indictment or summarily.”

35. This section applies to “any civil claim for damages for harm”.^[14]  “Harm” means “harm of any kind”, and includes “personal injury”.^[15]  By the terms of s 45(1)(a), the section is concerned with a “breach of duty from which civil liability would arise, apart from this section”.  “Duty” means, relevantly, “duty of care in tort”, and “duty of care” means “a duty to take reasonable care or to exercise reasonable skill (or both duties)”.^[16]

36. Section 7 of the CLA sets out provisions relating to the operation of the CLA, and expressly provides that the CLA “is not a codification of the law relating to civil claims for damages”.^[17]

37. It seems to me that the position advanced by the defendant is correct. The premise necessarily underlying the operation of s 45 is that there has been a “breach of duty”, and that, in turn, necessarily requires identification of the duty which has been breached. If, as the defendant asserts, the defendant owed no duty to the plaintiff in the circumstances of this case, then that is the end of the matter and it is not necessary to have recourse to s 45.

38. It was not in issue before me that, from the time they stole the vehicle, the plaintiff and the defendant were jointly engaged in the unlawful use of the vehicle, a crime under s 408A of the Criminal Code (Qld).  The criminal culpability of the plaintiff arose by operation of s 8 of the Criminal Code (Qld).  It is clear that, when they set off in the stolen vehicle, the plaintiff was engaged in a joint illegal enterprise of unlawfully using a motor vehicle without the consent of the person in lawful possession thereof.  (The plaintiff argues that this changed immediately prior to the crash – I will address this later in this judgment.) 

39. In Miller v Miller^[18], the High Court considered a case from Western Australia in which the 16 year old passenger in a car which had been stolen by her was seriously injured when the driver lost control and the car struck a pole.  After they had set off, but before the accident happened, the passenger had twice asked the driver to stop and let her out but he had refused.  The Criminal Code (WA) contained similar provisions to the Queensland sections I have described above.  Section 371A of the Criminal Code (WA) made it an offence to unlawfully use a motor vehicle, or take the vehicle for the purpose of using it, without the owner’s consent, and s 8 dealt with offences committed in prosecution of a common purpose.

40. Miller v Miller turned on the question whether, at common law, the driver owed the passenger a duty to take reasonable care at the time when the accident happened. 

41. The plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) reviewed a significant line of authorities on the point, noting^[19]:

“Over the last century, both in Australia and in other common law jurisdictions, courts have offered different statements of the principle or principles that govern whether and how the fact that a plaintiff acted illegally in the course of, or in connection with, events said to give rise to liability in negligence bears upon the liability of the defendant to the plaintiff.  Academic commentators have offered not only different criticisms of those principles, but also several different alternative formulations of the principles.”

42. Their Honours concluded their review, which included previous judgments of the High Court in Smith v Jenkins^[20], Jackson v Harrison^[21] and Gala v Preston^[22], by drawing together what they described as the common threads in the decided cases:

“[70] What has been said about the previous decisions in this Court shows that some propositions can be made.  First, the fact that a plaintiff was acting illegally when injured as a result of the defendant’s negligence is not determinative of whether a duty of care is owed.  Secondly, the fact that plaintiff and defendant were both acting illegally when the plaintiff suffered injuries of which the defendant’s negligence was a cause and which would not have been suffered but for the plaintiff’s participation in the illegal act is not determinative.  Thirdly, there are cases where the parties’ joint participation in illegal conduct should preclude a plaintiff recovering damages for negligence from the defendant.  Fourthly, different bases have been said to found the denial of recovery in some, but not all, cases of joint illegal enterprise: no duty of care should be found to exist; a standard of care cannot or should not be fixed; the plaintiff assumed the risk of negligence.  Fifthly, the different bases for denial of liability all rest on a policy judgment.  That policy judgment has sometimes been expressed in terms that the courts cannot regulate the activities of wrongdoers and sometimes in terms that the courts should not do so.

[71] Twice this Court has held (unanimously in each case) that one illegal user of a motor vehicle cannot recover damages for injuries sustained as a result of the negligent driving of another illegal user of the vehicle.  Central to the conclusion in each of those cases was the observation that the negligence alleged was negligence by one criminal in carrying out his part in the unlawful undertaking in which both plaintiff and defendant were engaged.

[72] The proposition that courts cannot regulate the activities of wrongdoers has already been rejected.  In a case of illegal use of a motor vehicle there is a readily identified standard of care that could be engaged: the standard of care which road users other than the driver’s criminal confederates are entitled to expect the driver to observe.

[73] Why should courts not regulate the activities of the wrongdoers by requiring of the driver that he or she exercise reasonable care for the safety of other road users and any passenger in the vehicle, whether or not the passenger is complicit in the crime?  As explained at the outset of these reasons, the answer must lie in whether it is incongruous for the law to provide that the driver should not be using the vehicle at all and yet say that, if the driver and another jointly undertake the crime of using a vehicle illegally, the driver owes the confederate a duty to use it carefully when neither should be using it at all.

[74] Incongruity (whether described by that word or as ‘contrariety’ or ‘lack of coherence’) will not be demonstrated or denied by bare assertion of the answer.  More analysis is required.  If a statute has been contravened, careful attention must be paid to the purposes of that statute.  It will be by reference to the relevant statute, and identification of its purposes, that any incongruity, contrariety or lack of coherence denying the existence of a duty of care will be found.  That is the path that was taken in Henwood.  It is the same as the path that has been taken in relation to illegality in contract and trusts.  The same path should be taken in cases where the plaintiff sues the defendant for damages for the negligent infliction of injury suffered in the course of, or as a result of, the pursuit of a joint illegal enterprise.” (emphasis added)

43. The plurality then turned to consider the relevant statutory provisions, particularly s 371A of the Criminal Code (WA).  After setting out, amongst other things, the relevant legislative history, their Honours made the following observations which, in my respectful view, are directly apposite to s 408A of the Criminal Code (Qld):

“[89] These changes in the legislation reflected not only a rise in the incidence of illegal use of motor cars, but also a recognition of the dangers to life and limb that often attended the commission of that crime.  No doubt the legislation, both as it now stands and as it stood in earlier times, must be understood as effecting a purpose of protecting the property interests of vehicle owners.  But in more recent years the legislature also recognised the fact that those who took and used vehicles without the permission of their owners often drove (as Dawson J pointed out^[23] in Gala v Preston) with a ‘concomitant lack of responsibility for the safety of the vehicle involved and the inevitable desire to avoid detection’.  The legislative purposes of s 371A are not confined to protection of property rights.  They include the advancement of road safety.

[90] If expressed only as the protection of property rights and the promotion of general road safety, the statutory purposes of s 371A, standing alone, appear not to speak to any question of the liability for negligence of one illegal user to another.  But there is a further question that must be considered before concluding that one illegal user can sue another in negligence.

[91] As noted earlier, a critical step in the reasoning in earlier cases in this Court considering the liability in negligence of one illegal user of a vehicle to another was that the negligence has been committed in the performance^[24] of the joint criminal venture.  That manner of expressing the issue should not be permitted to mask the significance of the proper identification of the venture and its nature.  More particularly, it is a description of the circumstances that directs attention to questions about what is the venture and what, if any, criminal responsibility the passenger may have for the manner of the confederate’s driving that is a cause of the passenger’s injury.

[92] The venture between the parties may be described as a venture to use the vehicle illegally.  But, as has already been seen, s 8(1) of the Code provides that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose ‘an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose’, each is deemed to have committed that offence.  If two or more persons agree to take and use a vehicle illegally, and one of them drives it unsafely, it will likely be concluded that ‘a probable consequence of the prosecution of such purpose’ is the driving of the vehicle with a ‘lack of responsibility for the safety of the vehicle’, its occupants and other road users, and in a way that departs markedly from a standard of driving with reasonable care.  The cases in which those are not probable consequences of two or more persons joining in the take and illegal use of a vehicle will likely be rare.  It is the recognition of that fact that lies beneath the conclusions reached in both Smith v Jenkins and Gala v Preston.  The joint criminal venture to which reference was made in those cases was a venture in which reckless or dangerous driving was a probable, but not inevitable, incident of the venture.

[93] If, in a particular case, it were to be shown that a probable consequence of commission of an offence of taking or using a vehicle illegally was the commission of other driving offences (including reckless or dangerous driving) those who were complicit in the initial offence would be criminally liable for the subsequent offences as well.  More particularly, if, as here, the driver of the illegally used vehicle drove dangerously, and driving in that manner was a probable consequence of the prosecution of the joint illegal purpose, a person complicit in the crime of illegal use wold also be complicit in the offence of driving dangerously.  And if, as a result of the dangerous driving, the complicit passenger were injured, it would evidently be incongruous to decide that the offender who drove the vehicle owed that passenger a duty to drive with reasonable care.  The passenger would have committed the offence of dangerous driving and yet, if the driver owed the passenger a duty to take reasonable care, the passenger (who would be criminally responsible for the driver’s dangerous driving) might sue the driver for damages for driving negligently.

[94] The incongruity identified stems immediately from the injured passenger’s complicity, not only in the illegal use of the vehicle, but also in the driver’s commission of the offence of driving dangerously.  To conclude that the driver owed the passenger a duty to take reasonable care when driving would not be consistent with the purpose of the statute proscribing dangerous driving.” (emphasis added)

44. Their Honours then answered criticisms of consequences which were said to arise from application of the law relating to illegality in tort, including by saying:

“[99] Secondly, and of more particular relevance to the immediate matter, whether or not the criticisms are expressed in this way, they must assume that the relevant legislative purposes of s 371A are completely stated as being the protection of property interests and the promotion of road safety.  A purpose described only as the promotion of road safety may well be said not to affect whether a duty of care should be found.  But the statutory purposes of s 371A are more particular than a general concern with road safety.  The section proscribes and punishes the taking and use of a vehicle illegally as it does because it recognises that, in a case where two or more persons form a common intention to prosecute that unlawful purpose, it is often a probable consequence of the commission of the crime that the driver will drive recklessly or dangerously.

[100] Whether one participant should be held to owe the other a duty to take reasonable care in the performance of the common purpose of using the car illegally cannot depend upon whether the possibility of reckless or dangerous driving eventuates.  It would be absurd to hold that one owed the other a duty to take reasonable care unless and until he or she departed markedly from observing that standard of care.

[101] The refusal to find a duty of care between those complicit in the offence follows from the more precise identification of the way in which the statutory proscription of illegal use of a vehicle seeks to promote road safety.  The offence of illegally taking and using a vehicle is dealt with as it is because of its association with reckless and dangerous driving.  The statutory purpose of a law proscribing dangerous or reckless driving is not consistent with one offender  owing a co-offender a duty to take reasonable care.  And in a case where two or more are complicit in the offence of illegally using a vehicle, the statutory purpose of the law proscribing illegal use (here, s 371A) is not consistent with one offender owing a co-offender a duty to take reasonable care.  The inconsistency or incongruity arises regardless of whether reckless or dangerous driving eventuates.  It arises from the recognition that the purpose of the statute is to deter and punish using a vehicle in circumstances that often lead to reckless and dangerous driving.” (emphasis added)

45. As it transpired, on the facts of that case, the plurality held that, by the time the accident happened the passenger had withdrawn from and was no longer participating in the crime of illegally using the car, and accordingly it could no longer be said that the driver owed her no duty of care.

46. In the present case, on the facts as I have found them, when the vehicle was stolen and thereafter, the defendant and the plaintiff were complicit in the offence of illegally using the vehicle. On the authority of Miller v Miller, it must therefore be said that, for so long as they were complicit in that joint illegal enterprise, the defendant did not owe the plaintiff a duty to take reasonable care.

47. The question, then, is whether on the facts of this case the plaintiff had withdrawn from the joint illegal enterprise at the time the incident occurred.

48. In R v Emelio^[25], Dalton J, with whom McMurdo P and Muir JA agreed, noted the relative scarcity of authority on the point of withdrawal from a common criminal purpose:

“[15] There is not a great deal of authority on the topic of what an accused must show if he contends that a common purpose pursuant to s 8 of the Criminal Code has ended because he has withdrawn from that purpose.  Withdrawal is not a defence as such under the Code.^[26]  In my view the question of what it is necessary to show when s 8 of the Code is relied upon by the Crown ought to be viewed as distinct from what an accused must show when s 7 of the Criminal Code is relied upon by the Crown.^[27]  The relevance of withdrawal to a case made pursuant to s 8 of the Code is to show that the common purpose has come to an end before the commission of an offence.  In R v Saylor^[28] Philp J considered a case not factually dissimilar to the present.  Saylor contended that he had withdrawn from a joint assault prior to its ending.  Philp J said:

  ‘In my view the law applicable to the instant case is that Saylor was guilty of the offence charged unless there was evidence fit to be considered by a jury that before the final kicking by Mam, Saylor had not only withdrawn from the prosecution of their common purpose but had also communicated that fact to Mam in such circumstances that any subsequent criminal act by Mam was Mam’s separate act.’^[29]

[16] Philp J relied upon the Canadian case of R v Whitehouse.^[30]  He cited from that case to this effect:

  ‘… before a prior abandonment of the common enterprise may be found by a jury there must be, in my view, in the absence of exceptional circumstances, something more than a mere mental change of intention and physical change of place by those associates who wish to dissociate themselves from the consequences attendant upon their willing assistance up to the moment of the actual commission of that crime. … What is “timely communication” must be determined by the facts of each case but where practicable and reasonable it ought to be such communication, verbal or otherwise, that will serve unequivocal notice upon the other party to the common unlawful cause that if he proceeds upon it he does so without the further aid and assistance of those who withdraw.  The unlawful purpose of him who continues alone is then his own and not one in common with those who are no longer parties to it nor liable to its full and final consequences.’^[31]

[17] The Court of Criminal Appeal considered this question in R v Menniti.^[32]  Connolly J thought that Philp J’s statement extracted above was a correct statement of the law,^[33] as did Thomas J, who said:

  ‘Cases of participation in a common purpose will normally be readily susceptible to withdrawal.  This is because the destruction (by countermand or otherwise) of the common purpose may mean that the eventual crime was not committed in the prosecution of that common purpose, and hence criminal liability on the part of the accessory may be avoided.^[34]’”

49. It is clear from that case, and the authorities to which her Honour referred, that in order to prove withdrawal from the common illegal enterprise in this case, the plaintiff would have to establish:

1. something more than mere mental change of intention; and

2. timely communication of the withdrawal; and

3. that he took such action as he could reasonably take to undo the effect of his previous encouragement or participation.^[35]

50. The matter, and indeed the only matter, to which counsel for the plaintiff could point as purportedly evidencing the plaintiff’s withdrawal from the joint illegal enterprise was the shouting of “slow down” just before the accident happened. As noted above, it is not clear on the evidence that the plaintiff was one of the boys yelling “slow down”. But even if he was, that conduct is not evidence of withdrawal from the illegal enterprise, nor could such a withdrawal be inferred. He did not ask to be let out of the car, as occurred in Miller v Miller.  On the plaintiff’s best case, he did nothing more than yell at the defendant to slow down.  That was, at highest, a request for the defendant to stop speeding, thereby engaging in reckless or dangerous driving.  But it was neither an express nor a tacit communication of withdrawal from the joint illegal enterprise of unlawful use of the vehicle.  As was observed in Miller v Miller, the existence or otherwise of a duty of care in circumstances such as this cannot depend upon whether the possibility of reckless or dangerous driving eventuates, as it undoubtedly did in this case.  Even if the plaintiff did tell the defendant to slow down, that would not have had the effect of enlivening the existence of a duty of care by the driver.  That would only have happened if there had been a withdrawal by the plaintiff from the joint illegal enterprise and, as I have said, that simply did not happen.

51. Accordingly, I hold that in the particular circumstances of this case, the defendant did not owe the plaintiff a duty to take reasonable care.

52. If I am wrong about this, and the present particular circumstances admit of the prospect of a duty to take reasonable care being owed by the defendant to the plaintiff, it is necessary to consider the application of s 45 of the CLA. 

Civil Liability Act 2003, s 45

53. By s 45(1), the exemption from civil liability is prima facie invoked if the Court is satisfied on the balance of probabilities of two matters:

1. That the breach of duty from which the defendant’s liability would arise happened while the plaintiff was engaged in conduct which was an indictable offence, and

2. The plaintiff’s conduct “contributed materially to the risk of the harm”.

54. The persuasive burden in respect of these elements lies on the defendant.^[36]

55. As to the first element, the plaintiff argued that by the time the accident happened, he had withdrawn from the joint illegal enterprise. For the reasons given above, I reject this argument. I would hold that the first element is satisfied in this case, the plaintiff having been engaged in conduct which was an indictable offence at the time of the accident.

56. It has been observed in relation to the second element that it “bears close attention that the language employed is to ‘the risk of the harm’ (emphasis added) as distinct from ‘the risk of harm’ (emphasis added)” and that the “difference is significant, probably entailing the notion of foreseeability of the precise harm that eventuates.”^[37]

57. It is well accepted for the purposes of a plaintiff proving causation that the plaintiff must prove something more than that it was merely possible that an injury was caused by a defendant’s breach of duty.^[38]  It is equally well-established that “the question whether the requisite causal connection exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of commonsense and experience”.^[39]  In Chappel v Hart^[40], McHugh J said^[41]:

“Before the defendant will be held responsible for the plaintiff’s injury, the plaintiff must prove that the defendant’s conduct materially contributed to the plaintiff suffering that injury.  In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases the risk of injury to another person.  If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant’s conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring.  If, however, the defendant’s conduct does not increase the risk of injury to the plaintiff, the defendant cannot be said to have materially contributed to the injury suffered by the plaintiff.”

58. All of these principles, in my view, inform the approach to be adopted in determining whether, in a case such as the present, the plaintiff’s criminal conduct “contributed materially to the risk of the harm” under s 45(1)(b).

59. Counsel for the defendant submitted, quite simply, that because the plaintiff assisted in stealing the car, s 45(1) applies.^[42] 

60. For the plaintiff, however, it was submitted that, even accepting that the plaintiff had assisted in stealing the car, that criminal conduct had not materially contributed to the risk of the harm which was suffered. Counsel for the plaintiff referred to the judgment of Andrews QC DCJ in O'Connell v 1^st Class Security Pty Ltd^[43] in which his Honour made the following observations relevant to the circumstances of the case he was then considering^[44]:

“[38] The reference in s 45(1)(b) is to ‘the harm’ as distinct from a reference to unspecified ‘harm’.  The difference is significant.  It will more often be that a person’s conduct will materially contribute to the risk of the harm the person suffers if that harm is a reasonably foreseeable consequence of the conduct.  By resisting arrest when he did the plaintiff contributed materially to the risk of suffering some harm but not ‘the harm’ which he actually suffered.  His conduct in resisting arrest contributed materially to the risk of suffering at least the physical injuries which were reasonably foreseeable from having his arms forcefully held and from being restrained over a car bonnet despite his struggles.  Shoulder or muscle strain and bruises, had they been caused by the forces created by the actions of the police and the plaintiff would have been reasonably foreseeable as harm which might be suffered by the plaintiff while he committed the offence of resisting arrest, in the way he did.  The actual harm he suffered was not a reasonably foreseeable consequence of the actual resistance to arrest which the plaintiff was then displaying.  The circumstances of the offence at the time the plaintiff suffered ‘the harm’ were that the two constables were in control of the plaintiff who was bent over the bonnet but continuing to resist arrest by moving.  I have not been persuaded that his resistance at that stage was more than of a minimal physical kind as he lay face down while one officer had a hand on him.  He was picked up from the bonnet and thrown to the ground and Simi fell onto him.  The force involved in that ‘throw down’ was sufficient to cause a grotesque fracture of the right femur such that when Simi got off the plaintiff, the plaintiff’s kneecap was turned to face backwards and his right foot ended up beside his face.  The fracture required ‘a reasonably significant degree of violence’ or ‘quite considerable force’ in the words of the orthopaedic expert.  Such force and such an injury were not reasonably foreseeable at the stage of the arrest when Simi intervened.

[39] I am not satisfied on the balance of probability that the plaintiff’s conduct when Simi intervened was contributing materially to the risk of ‘the harm’ which he suffered from Simi’s intervention.  It follows that the plaintiff’s cause of action based upon negligence is not defeated or affected by the defence in s 45(1) of the Civil Liability Act.”

61. It seems to me that the reference to “the harm” in s 45(1)(b) cannot be confined to referring only to the precise harm which the plaintiff suffered. To adopt such a narrow construction would operate to so restrict the operation of s 45 as to largely defeat the evident purpose of the legislative provision. Rather, in my view, “the harm” is a reference to harm of the kind or character suffered by the plaintiff as a reasonably foreseeable consequence of the illegal conduct in which he was engaged, and the question is whether the plaintiff’s conduct materially contributed to that harm being suffered.

62. In the present case, I would have held that the suffering of personal injury was a reasonably foreseeable consequence of the illegal conduct in which the plaintiff was a participant, i.e. the unlawful use of the vehicle. As the plurality observed in Miller v Miller at [92], reckless or dangerous driving is a probable incident of that sort of illegal conduct.  The risk of suffering personal injury – even serious personal injury – is clearly a reasonably foreseeable consequence of reckless or dangerous driving.

63. Moreover, the plaintiff did materially contribute to that risk being incurred. He was an active participant in the actual stealing of the vehicle, and went along for the “joyride”. If he had not assisted in stealing the car and continued to participate in its unlawful use, he would not have faced the risk of the harm which he suffered.

64. Accordingly, I would have held that the second element of s 45(1) is satisfied in this case, and accordingly the defendant would be prima facie exempted from civil liability.

65. The next question would be whether, in the circumstances of this case, that exclusion “would operate harshly and unjustly” such as to warrant the Court nevertheless making an award of damages.

66. It is for the plaintiff to satisfy the Court that such an exclusion would operate “harshly and unjustly”. The plaintiff must satisfy the Court that the circumstances are such that both of those conditions obtain, i.e. it would be both harsh and unjust for the exclusion to apply. But I also think that the phrase “harshly and unjustly” is a composite phrase intended to convey that the potential carve out from the s 45(1) exclusion is reserved to those cases, and only those cases, in which both conditions are found to be present. Both of the words “harshly” and “unjustly” are ordinary words of plain meaning, and it is not necessary to put any further gloss on them.

67. The plaintiff submitted^[45] that the exclusion under s 45(1) would operate harshly and unjustly because:

1. The plaintiff was only 14 years old at the time of the accident;

2. There was no direct evidence that the unlawful use of the vehicle, of itself, ought reasonably have resulted in the plaintiff appreciating that he would be encountering serious risks;

3. There was no evidence that the plaintiff was concerned about any risk of the defendant driving recklessly;

4. The plaintiff was not complicit in the conduct of the defendant in driving the vehicle with a lack of responsibility for the safety of the vehicle, its occupants and other road users, and in such a way as departed markedly from a standard of driving with reasonable care;

5. The plaintiff was not complicit in the offence of driving dangerously;

6. Occupants of the vehicle were screaming/yelling to the defendant to slow down;

7. The defendant admitted that the plaintiff has suffered a severe brain injury, as a result of which he has suffered significant loss of amenities and has been deprived of the capacity to participate in many activities of daily life;

8. The plaintiff has required significant treatment, including numerous surgical procedures consequent to injuries suffered in the accident.

68. The matters referred to in (a), (g), and (h) of those submissions were characterised by counsel for the defendant as the plaintiff throwing himself on the mercy of the Court.^[46]

69. The plaintiff was certainly young at the time of this incident, but equally he was of an age at which he was liable to bear responsibility for the criminality of his conduct. In the circumstances as described to me in evidence, I would have inferred this to be a case of youthful misadventure by him. That points to the potential harshness of the unalloyed operation of the s 45(1) exclusion.

70. Even more so, the plaintiff has been left catastrophically injured. The harshness of the operation of the s 45(1) exclusion, such as to completely deny him a remedy to recover compensation for those injuries, is apparent.

71. There is simply no evidence one way or the other as to whether the plaintiff was personally concerned about the risk of the defendant driving recklessly, and I am unable to draw an inference in that regard.

72. Whilst the plaintiff may not have directed or encouraged the defendant to drive in the way he did, the plaintiff himself materially contributed to the circumstances in which the defendant was able to drive in that fashion. Given the evident policy behind s 45, it is difficult to say that the very conduct which enlivens the s 45(1) exclusion also renders application of that exclusion unjust.

73. The fact that the plaintiff was not complicit in the offence of dangerous driving does not mean that he was not complicit in the offence of unlawful use of the vehicle. That was the circumstance which invoked the s 45(1) exclusion. The fact that he was not guilty of some other offence does not render operation of the exclusion, either harsh or unjust.

74. It is not clear why the fact that the boys (even if I include the plaintiff) were yelling at the defendant to slow down would be a circumstance which makes s 45(1) operate either harshly or unjustly. Telling the defendant to slow down was, at best, indicative of a late realisation by the boys of the dangerous situation they were in because of the defendant’s reckless and dangerous driving. But it was a situation they had put themselves in when they stole the vehicle and got in it for a joyride.

75. On that basis, then, I would have been prepared to acknowledge that the circumstances of the plaintiff’s youth at the time of the incident and the magnitude of the injuries suffered and their consequences would have meant that the operation of the s 45(1) exclusion would be harsh. But would these circumstances also mean that the operation of the exclusion was unjust?

76. No right thinking person would not be sympathetic to the plaintiff’s plight – a young man injured in the course of youthful misadventure and left with catastrophic injuries.

77. But sympathy is not the touchstone for the present consideration. Rather, it is for the plaintiff to establish not only the harshness of the operation of the s 45(1) exclusion, but that its operation would be unjust. Without wishing to be prescriptive, it seems to me that an assessment of whether the operation of the exclusion would yield an unjust outcome requires, at the very least, a balancing of the nature and degree of the criminal conduct being engaged in by the plaintiff against the nature and magnitude of the injuries suffered by the plaintiff and the consequence of the operation of the s 45(1) exclusion.

78. The plaintiff’s complicity in the unlawful use of the motor vehicle was quite serious criminal conduct, albeit committed by a juvenile. But in all practical senses, he has paid a very heavy price for his involvement in that criminal conduct. Application of the s 45(1) exclusion would leave him bereft of an entitlement to claim damages. I would have been prepared, in these circumstances, to find that an application of the s 45(1) exclusion would operate both harshly and unjustly, and I would have allowed an award of damages.

79. Section 45(3) requires, in such a case, that any such assessment of damages be reduced by at least 25 per cent “on account of the injured person’s conduct”. Having regard to the fact that the plaintiff was himself actually involved in the stealing of the vehicle and his complicity in the unlawful use of the vehicle, I would have ordered that the damages be assessed with a reduction, on account of the plaintiff’s conduct, of 50 per cent.

Voluntary assumption of risk

80. The defendant also formally pleaded and relied on a submission that the plaintiff had voluntarily assumed risk in this case.

81. In that regard, s 13 and s 14 of the CLA provide:

“13 Meaning of obvious risk

1. For this division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

2. Obvious risks include risks that are patent or a matter of common knowledge.

3. A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

4. A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

5. To remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk.

Examples for subsection (5) –

1A motorised go-cart that appears to be in good condition may create a risk to a user of the go-cart that is not an obvious risk if its frame has been damaged or cracked in a way that is not obvious.

2A bungee cord that appears to be in good condition may create a risk to a user of the bungee cord that is not an obvious risk if it is used after the time the manufacturer of the bungee cord recommends its replacement or it is used in circumstances contrary to the manufacturer’s recommendation.

14 Persons suffering harm presumed to be aware of obvious risks

 (1) If, in an action for damages for breach of duty causing harm, a defence of voluntary assumption of risk is raised by the defendant and the risk is an obvious risk, the plaintiff is taken to have been aware of the risk unless the plaintiff proves, on the balance of probabilities, that he or she was not aware of the risk.

  Editor’s note –

  ‘Voluntary assumption of risk’ is sometimes stated as ‘volenti non fit injuria’.

 (2) For this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.”