Brown v Logan City Council

This is a strike out application in the context of a personal injury claim arising out of a motor vehicle accident.  The plaintiff sought to strike out the defendant’s pleading that she had no cause of action by operation of s 6 of the Criminal Code 1899 (the Code).  The application raised one novel point of law, namely, whether s 6 of the Code was implied repealed by s 45 of the Civil Liability Act 2003 (the CLA).  The application was dismissed.

Davis J

8 March 2019

On 20 January 2012, the plaintiff was involved in a motor vehicle accident at Logan Village and sustained injuries. [1]. She had collided with another vehicle after drifting onto the wrong side of a narrow road without any marked centre line. [3], [9]. The plaintiff pleaded guilty and was convicted on indictment of the charge of dangerous operation of a motor vehicle and was sentenced. [6]–[7]. Subsequently, the plaintiff commenced a personal injury claim against the respondent Council for failure to mark the centreline and take other steps. [13]. In its defence, the Council pleaded that she had no right of action by operation of s 6 of the Code. [14]. Justice Davis considered the plaintiff’s application to strike out that plea. [1].

The question before the court was a point of law whether s 6 Code was impliedly repealed by s 45 CLA. [21]. It was common ground between the parties that the claim could not succeed if that question was determined in the Council’s favour. [20].

The plaintiff had been convicted of an indictable offence. [41]. Section 6(2) of the Code provides:

“A person who suffers loss or injury in, or in connection with, the commission of an indictable offence of which the person is found guilty has no right of action against another person for the loss or injury.” [24].

His Honour had no hesitation in finding that by pleading guilty to the offence the plaintiff had been “found guilty” of an indictable offence and therefore, subject to the argument that the section was repealed by s 45 CLA, s 6 applied to deny a right of action. [23]–[51].

Section 45(1) CLA provides that a person does not incur civil liability if the court is satisfied the breach of duty happened while the plaintiff was engaged in conduct that is an indictable offence, and that conduct contributed materially to the risk of harm.  However, s 45(2) provides a discretion to award damages where the court is satisfied s 45(1) would operate harshly and unjustly. [52].

The plaintiff argued that s 45 had impliedly repealed s 6 and conferred a discretion to award damages against the Council. [58]. The proposition had not previously been considered. [59].

His Honour noted the general presumption is that both provisions continue to operate.  There must be very strong grounds to support the implication of repeal. [62]. The provisions must be so inconsistent that they cannot stand together. [63].

As his Honour notes in his reasons, the two provisions operate quite differently. [65]. His Honour found there are clearly circumstances caught by s 6 that do not fall under s 45, and vice versa. [66]. The inconsistency is not such as to effect a repeal of s 6. [69]. Further, his Honour also noted the operation of s 7(2) of the CLA which provides:

“A provision of this Act that gives protection from civil liability does not limit the protection from liability given by another provision of this Act or by another Act or law.”

As his Honour observed, s 45 is a provision which gives protection from civil liability and therefore s 7(2) provides a “complete answer to the plaintiff’s application”. [71]. It follows that s 6 is not impliedly repealed but expressly preserved. [73]–[77].

The application to strike out the plea was dismissed. [80].

K Gover of Counsel