Case note: Captain v Wosomo  QSC 86
One recent decision of the Queensland Supreme Court is a warning to Plaintiffs who seek damages for injuries suffered while engaged in criminal behaviour – you claim may be doomed to failure.
In February 2013 four boys stole a Toyota Hilux for a joyride in Townsville. The Plaintiff (then aged 14) was a passenger in the vehicle and the Defendant (then aged 16) was the driver.
At least one of the passengers in the vehicle yelled at the driver to slow down just before the Defendant lost control of the vehicle at an intersection. At this time, the vehicle was traveling between 80 and 90 km/h. The vehicle crashed into a light pole and the Plaintiff suffered severe head injuries. The Plaintiff and other boys in the vehicle were not wearing seatbelts at the time of the crash.
The Plaintiff’s guardian brought a claim on his behalf in accordance with the Motor Accident Insurance Act 1994 (Qld) against the driver of the stolen car.
The trial concerned liability only. The issues in dispute included:
- whether the Defendant owed the Plaintiff a duty of care;
- whether the Plaintiff was engaged in conduct that was an indictable offence at the time of the crash for the purposes of section 45 of the Civil Liability Act 2003 (Qld);
- whether it would be harsh and unjust to deprive the Plaintiff of an award of damages under section 45(2);
- whether there was a voluntary assumption of risk by the Plaintiff;
- whether the Plaintiff had engaged in a dangerous recreation activity;
- whether the Plaintiff had been contributorily negligent by failing to wear a seatbelt.
Justice Daubney held that the Plaintiff was jointly complicit in the stealing of the vehicle. Counsel for the Plaintiff argued that he withdrew from the criminal enterprise when he yelled at the driver to stop. This argument was not accepted by the Court as the yelling was an attempt to stop the driver speeding but was not an attempt to withdraw from the ongoing theft of the vehicle. The facts of this case were distinguished from the High Court’s decision in Miller v Miller (2011) 242 CLR 446, where the Plaintiff had made clear and repeated requests to get out of a stolen vehicle.
Justice Daubney held that to demonstrate withdrawal from a joint illegal enterprise, the Plaintiff would have to establish:
- 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,
and, he could not do so.
In this case, the ongoing criminal activity at the time of the crash and the Plaintiff’s failure to withdraw from that conduct led the Court to conclude that the Defendant did not owe the Plaintiff a duty of care. Accordingly, the Plaintiff was unsuccessful.
The judgment also addressed the application of section 45 of the CLA to the claim. Section 45 of the CLA states:
‘(1) A person does not incur civil liability if the court is satisfied on the balance of probabilities that-
(a) 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
(b) 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.’
Although it was not necessary to make findings in relation to section 45, Justice Daubney 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;
- The Plaintiff materially contributed to the realisation of that risk. He was an active participant in the actual stealing of the vehicle, and went along for the joyride;
- The Plaintiff’s damages should otherwise be reduced in accordance with section 45(3), on account of the Plaintiff’s conduct, by 50%.
Voluntary assumption of risk
Although it was not necessary to rule on this point, his Honour rejected the defence’s argument that the Plaintiff had voluntarily assumed the obvious risk of joyriding in a stolen car. Justice Daubney noted that this defence rarely succeeds and that the Defendant would be unable to demonstrate that the Plaintiff freely and voluntarily agreed to incur the risk.
Dangerous recreational activity
His Honour stated that he ‘would have been loathe to find that s 19 is applicable in the current case’ and given the specific application of the section 45 defence, the Court took the view that its application excluded a finding that the Plaintiff was engaged in a dangerous recreational activity.
Failure to wear a seatbelt
In further obiter, Justice Daubney accepted the medical evidence that it would not have been possible for the Plaintiff to sustain the head injuries he suffered, if he had been wearing a seatbelt. His Honour was satisfied that the Plaintiff was therefore contributorily negligent, although the Court was not required to rule on this point as the Defendant owed no duty of care to the Plaintiff. His Honour said that if a duty of care were owed to the Plaintiff, he would have reduced the damages awarded to the Plaintiff by 65% because of both the contributory negligence of the Plaintiff (15%) and the criminal conduct that the Plaintiff was engaged in (50%).
This decision will be of interest to parties involved in claims for ‘harm’ involving criminal conduct.
The judgment is the first reported Queensland case to consider the application of section 45 in the context of a passenger injured during the unlawful use of a vehicle. It case will be of particular interest to compulsory third party insurers.
It is clear from this decision that it will be difficult for plaintiffs travelling in stolen vehicles to establish that a duty of care is owed to them. And if they can, they will be faced with a section 45 defence and any other defences available to the compulsory third party insurer.