In a decision handed down on 18 May 2017, the Supreme Court of Queensland denied compensation for catastrophic personal injuries suffered by a passenger who was complicit in the illegal use of a motor vehicle.
On 8 February 2013, the then 14 year old plaintiff sustained severe head injuries when the stolen Toyota Hilux he was riding in lost control and crashed into a light pole. The vehicle was driven by the then 16 year old defendant.
The plaintiff, defendant and two of their friends had stolen the vehicle shortly before the accident and were taking the vehicle for a joyride when the crash occurred.
Did the defendant owe a duty of care to the plaintiff?
The Hon Justice Martin Daubney held that for so long as the plaintiff and the defendant were complicit in the joint illegal enterprise of using the vehicle, the defendant did not owe the plaintiff a duty to take reasonable care of the plaintiff’s safety. His Honour stated that in order to demonstrate that the plaintiff had withdrawn from the joint illegal enterprise with the defendant, the plaintiff would have to establish:
- something more than mere mental change of intention
- timely communication of the withdrawal and
- the plaintiff took such action as he could reasonably take to undo the effect of his previous encouragement or participation in the illegal activity.
The plaintiff alleged that immediately before the incident, he shouted to the plaintiff to “slow down”. He argued that in doing so, he had withdrawn from the illegal activity by the time of the incident.
His Honour found that the alleged request by the plaintiff to slow down was, at most, a request for the defendant to cease the activity of reckless or dangerous driving, and was not an express or tacit communication of withdrawal from the joint unlawful use of the vehicle.
As such, the Court held that at the time of the accident the defendant did not owe the plaintiff a duty to drive with reasonable care.
Criminal conduct – section 45 defence
Notwithstanding his conclusion that the defendant was not liable for the plaintiff’s injuries, His Honour considered the defence raised by the defendant under section 45 of the Civil Liability Act 2003 (QLD). Section 45 states that a person does 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, apart from this section, happened while the person who suffered harm was engaged in conduct that is an indictable offence and
- the person’s conduct contributed materially to the risk of the harm.
The plaintiff’s counsel relied on the Queensland District Court decision in O’Connell v 1st Class Security Pty Ltd1 and argued that the plaintiff’s act of assisting in the theft of the car was not the criminal conduct which materially contributed to the risk of harm suffered by the plaintiff (being the dangerous driving by the defendant).
His Honour did not accept the plaintiff’s submission. His Honour found that personal injury was a reasonably foreseeable consequence of engaging in the unlawful use of a vehicle where reckless or dangerous driving was probable and that the plaintiff had materially contributed to the risk of harm by assisting in the theft of the vehicle and partaking in the joyride.
However, His Honour accepted that in this instance the application of section 45 would operate both harshly and unjustly by reason of the plaintiff’s young age and the magnitude of the plaintiff’s catastrophic injuries. His Honour noted that had the plaintiff’s claim succeeded, he would have allowed an award of damages reduced by 50% on account of the plaintiff’s complicity in the theft and unlawful use of the vehicle.
The case serves as a warning to plaintiffs who seek damages for injuries suffered while engaged in criminal behavior.
The decision may also provide some comfort to insurers where plaintiffs are concurrently engaged in an indictable offence at the time of the alleged negligent act or omission by the defendant. It appears that a defendant can successfully avoid liability under section 45(1) if it can be shown that the risk of harm which eventuated was of the kind which was reasonably foreseeable as a consequence of the illegal activity and that the said activity materially contributed to the injuries suffered.
1 QDC 100.