The answer is no; as demonstrated in the recent Queensland Supreme Court decision of Captain v Wosomo & Anor[1].

The decision dealt with tragic circumstances involving a plaintiff (who was 14 years old at the time) who suffered catastrophic head injuries when the vehicle he was travelling in collided with a light pole in Townsville. The plaintiff was travelling as the front seat passenger of the vehicle which had been stolen by the plaintiff and three others. The driver of the vehicle was the plaintiff’s 16 year old friend.

The plaintiff commenced personal injury proceedings against the driver and the relevant CTP insurer.

The plaintiff’s legal representatives acknowledged the potential application of s45(1) of the Civil Liability Act 2003 (CLA). That section precludes civil liability in circumstances where a party was engaged in an indictable offence at the time of suffering injury. The plaintiff advanced the two following arguments in an attempt to avoid the application of s45(1):

  1. By the time of the accident, the plaintiff had withdrawn from the relevant criminal activity and therefore s45(1) did not apply; or
  2. Alternatively, if s45(1) applied, s45(2) should operate to allow the court to award damages in any event given that s45(1) was harsh and unjust in the circumstances.

The defendants rejected each of the above arguments but also advanced a separate defence, contending that the defendant driver did not in fact owe the plaintiff a duty of care. If that argument was to be accepted, s45 of the CLA would be irrelevant.

The existence of a duty of care

In considering the question of whether a duty of care was owed to the plaintiff, his Honour Justice Daubney relied on the High Court decision of Miller v Miller[2].

In Miller, the High Court traversed a number of previous decisions dealing with whether a duty of care is owed between parties engaged in a joint criminal enterprise and, in particular, the joint illegal use of a vehicle.

In summary, the High Court found that the simple fact two parties were engaged in a joint criminal activity is not determinative of whether a duty of care exists. However, in circumstances where a vehicle was stolen and then driven dangerously (which was a probable outcome of such an enterprise), it would be incongruous for a person complicit in stealing the vehicle to then sue the driver in damages for driving negligently.

On the authority of Miller, his Honour concluded that so long as the defendant and the plaintiff were complicit in the joint illegal enterprise of using the stolen vehicle unlawfully at the time of the accident, the plaintiff was owed no duty of care by the defendant.

Did the plaintiff withdraw from the joint legal enterprise?

On the basis of the above finding, the existence of a duty of care turned on whether or not the plaintiff had withdrawn from the joint illegal enterprise at the time of the accident.

The plaintiff contended that prior to the accident he had yelled at the defendant to slow down. The evidence on that issue was uncertain. Although the defendant appears to have been yelled at by at least one passenger prior to the accident, it was not clear which passenger/s did the yelling and what it was that they were yelling. In any event, his Honour concluded that the plaintiff demanding the defendant to slow down did not constitute the plaintiff’s withdrawal from the illegal enterprise.

Therefore, in circumstances where the plaintiff remained engaged in the illegal enterprise with the defendant at the time of the accident, his Honour concluded that no duty of care was owed to the plaintiff.

Section 45 of the CLA

His Honour went on to consider the application of s45 of the CLA (despite being irrelevant in circumstances where no duty of care was owed).

In reliance upon the finding that the plaintiff at no time withdrew from the criminal enterprise and the fact that the plaintiff’s conduct contributed to the eventual harm suffered, s45(1) was deemed to apply.

However, his Honour went on to say that had a duty of care been owed and had s45(1) applied, he would have relied on s45(2) to allow an award of damages in any event. That is because, in his Honour’s view, the operation of s45(1) was both harsh and unjust having regard for the plaintiff’s age and the severity of his injuries.

Implications for you

Although acknowledging the tragic circumstances of the case, his Honour ultimately dismissed the plaintiff’s claim on the basis that the plaintiff was not owed a duty of care by the defendant.

This case is a reminder not to overlook the first stage of establishing liability. That is, the existence of a duty of care. Although rare, there are some circumstances where the existence of a duty will be the most significant factor in determining the prospects of a claim.