The recent Supreme Court decision of Capitan v Wosomo & Anor  QSC 86 highlights important principals relating to assessing liability in relation to dangerous recreational activities involving criminal undertakings.
The plaintiff and the defendant were both involved in a car crash that permanently debilitated the defendant whom was a front seat passenger at the time of the accident. The car included 4 teenage boys who had stolen the vehicle from a driveway and then crashed the vehicle into a light pole. The defendant was the driver of the stolen vehicle and was driving approximately 80kmph when the crash occurred. Evidence was provided to suggest that before the accident occurred all three boys were yelling at the defendant to slow down.
The plaintiff sought an assessment of damages on the basis that the defendant owed a duty of care to the plaintiff. The plaintiff argued that:
- By the time the incident had occurred, the plaintiff had effectively withdrawn from the joint criminal activity.
- The plaintiff does not fall under the exclusionary rule set out in s45 (1) of the Civil Liability Act 2003 (Qld) that establishes criminals cannot be awarded damages while engaging in conduct that is considered an indictable offence. S45 (1) also sets out that a person cannot be awarded damages if the person’s conduct materially contributed to the risk of the harm.
In relation to the issue of wether or not there was a duty of care owed to the plaintiff, the trial judge held that the position of the defendant was correct in that there was no duty of care owed. The trial judge decided that both the defendant and the plaintiff were engaged in the unlawful use of a vehicle under s 408A of the Criminal Code (Qld). The Trial Judge made it clear that when the plaintiff and the defendant drove off in the stolen car, they were both involved in a joint illegal enterprise of unlawfully using a motor vehicle.
With respect to the plaintiff withdrawing from the joint criminal activity, the Trial Judge used the analogous High Court case of Miller v Miller (2011) 242 CLR 446 where a 16 year old passenger was in a stolen car which had been stolen by herself and the driver. The car crashed into a pole and as a result she was seriously injured. Before the accident happened the passenger had asked the driver twice to stop and let her out, he refused. The High Court held that the as a result of the illegal undertaking that both parties were involved in, the passenger could not recover damages for injuries sustained. The Trial Judge went on to say that on the authority of Miller v Miller, if the plaintiff and the defendant were complicit in the joint illegal enterprise there was no duty owed to the plaintiff to the defendant to take reasonable care regardless if the plaintiff withdrew from the criminal activity.
In relation to the admissibility of s45 (1), the Trial Judge held that because the plaintiff assisted in stealing the car thus s 45 (1) applied. The judge further stated that the defendant did not owe the plaintiff a duty of care to take reasonable care and therefore the plaintiffs claim was dismissed.
Whilst a plaintiff and a defendant are both participating in an illegal activity, the defendant does not owe a duty of care to the defendant. Even though the normal use of a motor vehicle carries with it a duty of care owed to its passengers, this duty is not afforded to individuals engaging in a joint illegal enterprise.
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