This is an interesting decision considering civil liability in tort, where both the tortfeasor and the injured party were engaged in criminal conduct around the time of the relevant breach of duty. On this point, the court considered whether the injured party had withdrawn from the joint criminal activity at the time of the incident. Finding that he had not withdrawn, the court considered not only the duty of care owed in such circumstances, but also the operation of the exclusion of civil liability under s 45(1) and (2) of the Civil Liability Act 2003.
18 May 2017
This interesting recent matter addressed a number of issues relevant to the tort of negligence, including whether s 45(1) of the Civil Liability Act 2003 operated to exempt the defendant from civil liability. Section 45(1) provides that a person will not incur civil liability if the court is satisfied on the balance of probabilities that “the breach of duty from which civil liability would arise … happened while the person who suffered harm was engaged in conduct that is an indictable offence” and that person's conduct contributed materially to the risk of the harm. The court may still award damages under s 45(2) if the exclusion under s 45(1) would operate “harshly or unjustly”.
The action arose from an incident of underage and unlawful driving, which left the plaintiff with catastrophic head injuries and a permanent disability. Briefly, that episode had involved the theft of a vehicle from its owner’s driveway in the early hours of the morning by a party of four boys including the plaintiff, then aged 14. He was in the front passenger seat of a vehicle being driven by the first defendant, then aged 16. He was not wearing a seatbelt. . The two other boys travelled in the back seat of the vehicle. . The vehicle crashed into a light pole. .
The plaintiff argued that:
- by the time of the incident, he had effectively withdrawn from the joint criminal activity; and
- alternatively, if he fell under the exclusion in s 45(1), the Court should be satisfied that the application of that exclusion would operate harshly and unjustly, and in any event award damages. .
In response, the defendant submitted that the defendant owed no duty to the plaintiff, and as such the application of s 45 did not arise. , .
Was the plaintiff owed a duty of care?
After noting the complicity common to the defendant and the plaintiff in the offence of illegally using the vehicle, his Honour formed the view that “for so long as they were complicit in that joint illegal enterprise”, the defendant did not owe the plaintiff any duty to take reasonable care: see Miller v Miller (2011) 242 CLR 446. . The critical issue thus arising was whether the plaintiff had withdrawn from the joint illegal enterprise at the time of the incident. . In that regard, his Honour observed that in order to prove withdrawal from the common illegal enterprise, the plaintiff would need to demonstrate:
- something more than mere mental change of intention; and
- timely communication of the withdrawal; and
- that he took such action as he could reasonably take to undo the effect of his previous encouragement or participation. .
The only matter to which counsel for the plaintiff referred as purportedly indicating his withdrawal from the joint illegal enterprise was the shouting of “slow down” by occupants of the vehicle, just prior to the accident. That was problematic, in that it was unclear on the evidence that the plaintiff was indeed one of the boys yelling “slow down”. But his Honour considered that even if he was, that conduct alone was not evidence of withdrawal from the illegal enterprise, nor could such a withdrawal be inferred. . In those circumstances the defendant did not owe the plaintiff a duty to take reasonable care. .
Section 45 of the Civil Liability Act 2003
As the defendant did not owe the plaintiff a duty of care s 45 of the Civil Liability Act did not apply. However, his Honour noted that if he were wrong on that point then it would be necessary to consider the application of s 45 of the Act. Since he had not accepted the contention that by the time of the accident the plaintiff had withdrawn from the joint illegal enterprise  and, given the plaintiff’s active participation in both the theft of the car and the ensuing “joyride”,  his Honour’s view was that he had materially contributed to the risk being incurred. Accordingly, s 45 would operate such that the defendant would be prima facie exempted from civil liability. .
Would the exemption operate harshly and unjustly?
Taking into account the catastrophic injuries suffered by the plaintiff, his Honour acknowledged the apparent harshness of the s 45(1) exclusion, such as to completely deny him a remedy to recover compensation. . He put it this way:
“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. But sympathy is not the touchstone for the present consideration.” –.
Rather, the critical issue was whether the circumstances rendered the operation of the exclusion as unjust, requiring an evaluation of the nature and degree of the criminal conduct in which the plaintiff was a participant, against the nature and magnitude of the injuries suffered and the consequence of the operation of the s 45(1) exclusion. . In the final analysis, his Honour was minded to find that an application of the s 45(1) exclusion would operate both harshly and unjustly, and he would have allowed an award of damages , assessed with a reduction, on account of the plaintiff’s involvement, of 50 per cent. .
The claim was dismissed. .
A de Jersey