04 September 2020

By Hugh Powell, Associate

I recently wrote about a personal injury case in which a person was injured while travelling as a passenger in a car involved in a street race. That injured person lost their case because the court found she was a complicit participant in a dangerous and illegal street race at the time she was injured. You can revisit that blog post here.

More recently, a similar, and perhaps more tragic, case came before the New South Wales Court of Appeal. Let me set the scene for you.

On 28 November 2015 the plaintiff, who was 15 at the time, arranged to meet with three of her friends. She was a powerfully built young woman, who was 6ft tall.

They were dressed in a way so as to disguise their appearance as far as possible, wearing hoods over their heads, caps and other clothing that was seemingly unnecessary for what was a warm evening. A taxi was called in a false name and from an address from which no one had any connection.

The only familiarity with the address was that one month earlier the plaintiff and her friends were present when a taxi driver was robbed there. By choosing that destination, they knew they could escape through an underpass.

When the taxi arrived, the plaintiff sat in the front seat. Her three friends sat in the back. As the taxi neared the destination, the plaintiff brandished a large kitchen knife. She demanded money from him. A struggle ensued. In the course of that struggle, the taxi driver accelerated. The vehicle was travelling at somewhere between 22km/h – 28km/h when the plaintiff, in the course of the struggle, fell from the vehicle. She suffered catastrophic injuries as a result and is now a paraplegic.

Immediately after the plaintiff fell from the taxi, one of her friends took the knife and threw it into nearby bushes. They then tried to drag her from the scene but were unable to do so; leaving her there while they ran away towards the underpass. The plaintiff was subsequently arrested by police and charged with armed robbery. She was acquitted of that charge in the Children’s Court in August 2016.

The plaintiff then sued the taxi driver for damages alleging he pushed her out of the moving taxi, for no apparent reason. At trial, the plaintiff denied possessing a knife and denied attempting to rob the taxi driver. CCTV footage indicated otherwise. Ultimately, the plaintiff’s claim was dismissed on the basis her own criminal conduct significantly contributed to her injuries. The plaintiff’s appeal was similarly dismissed.

In New South Wales the relevant legislation is section 54 of the Civil Liability Act 2002 which excludes awards of damages for people injured while committing a serious criminal offence. Queensland has a similar exclusion which is found in section 45 of the Civil Liability Act 2003.

Unlike the New South Wales provision, the Queensland legislation tries to strike a balance between excluding damages for criminals and reasonably compensating injured persons by providing an additional qualification that a court may still award damages if it would be harsh and adjust not to do so in the circumstances.

That then begs the question – if this accident had occurred in Queensland, would the result have been different? Not likely. The plaintiff still has the onus of establishing a duty of care was owed to her by the driver, that the driver breached the duty of care owed to her, and that any breach of duty caused her injuries – the plaintiff failed to establish each of these elements both at trial, and on appeal.

SW v Khaja [2020] NSWCA 128

Hugh Powell Travis Schultz & Partners

Hugh Powell

Associate