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Joyriding passenger fails in claim against driver of stolen vehicle

Case note: Captain v Wosomo [2017] 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.

The Facts

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 Issues

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.

The Judgment

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.

Criminal conduct

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%).

Considerations

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.

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Kate DenningJoyriding passenger fails in claim against driver of stolen vehicle
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Interstate Insurers and the National Injury Insurance (Qld) Act 2016 (Qld)

Interstate Insurers and the National Injury Insurance (Qld) Act 2016 (Qld)

National Injury Insurance Scheme – National Injury Insurance Scheme Act – National Injury Insurance Scheme Queensland – National Injury Insurance Scheme Levy – NIIS NDIS – NIIS Qld – CTP Insurance Law – CTP Insurance Lawyer – Motor Accident Insurance Act – Motor Accident Insurance Commission Qld – Motor Accident Insurance Regulation

Background

As of 1 July 2016, Queensland has a no-fault scheme for treatment, care and support for eligible persons who suffer serious personal injury caused by, through or in connection with the:

  • driving;
  • collision, or action to avoid a collision;
  • running out of control; or
  • defect causing loss of control,

of a prescribed vehicle, within Queensland.

The National Injury Insurance (Qld) Act 2016 (Qld) (NIISQA) was introduced to meet Queensland’s obligation to address the agreed federal benchmarks for the provision of treatment, care and support to persons involved in road accidents who suffer serious personal injury. The NIISQA does not affect the common law rights of Claimants for at-fault compulsory third party claims. However, the meaning of the term ‘insurer’ under the NIISQA will see the legislation operate differently in claims against interstate compulsory third party (CTP) insurers (Interstate Insurers), compared with claims against Queensland licensed insurers.

The NIISQA will be administered by the National Injury Insurance Agency, Queensland (Agency).

Meaning of ‘insurer’

The dictionary in the NIISQA defines certain words used in the Act.

The word ‘insurer’ is a word that is defined. Under the NIISQA:

insurer means an insurer under the statutory insurance scheme under the [Motor Accident Insurance Act 1994 (Qld)].’

The Motor Accident Insurance Act 1994 (Qld) (MAIA) defines the statutory insurance scheme as, ‘the insurance scheme established by [the] Act’: section 4.

Several sections in the MAIA refer to the ‘statutory insurance scheme’.  Those sections concern such matters as:

  • the obligations of licensed insurers;
  • the statutory insurance scheme levy;
  • the industry deed;
  • the functions of the Motor Accident Insurance Commission; and
  • premium rates,

and other matters that are of no consequence to Interstate Insurers.

Interstate Insurers are not, ‘insurers under the statutory scheme under the [MAIA]’.  The Transport Accident Commission (Vic) is the insurer under the statutory scheme under the Transport Accident Act 1986 (Vic).  The Territory Insurance Office (NT) administers the Motor Accidents Compensation (MAC) Scheme under the Motor Accidents (Compensation) Act 1979 (NT).  The Motor Accident Insurance Board (Tas) administers the funding and payment under Tasmania’s scheme.

While claims for damages against these Interstate Insurers are regulated by the pre-court procedures of the MAIA, those Interstate Insurers are ‘insurers’ under their own schemes; with their own statutory policies of insurance.

When an Interstate Insurer is an ‘insurer’ under the NIISQA

Under section 32AA of the Acts Interpretation Act 1954 (Qld) (AIA) a definition in an Act applies to an entire Act.  However, under section 32A of the AIA, a definition in an Act applies except so far as the context or subject matter otherwise indicates or requires.

So, if the context or subject matter of a particular section or part of the Act requires; the term ‘insurer’ could be interpreted to mean Interstate Insurers.

Section 102 is an example of a provision which requires that the word ‘insurer’ be a reference to Interstate Insurers. Under section 102, the Agency may recover, as a debt, the present day value of a participant’s future treatment, care and support from the ‘insurer’ under an interstate CTP policy of a vehicle at-fault.

A comparison between sections 42 and sections 102 of the Act, shows that the word ‘insurer’ has taken on two meanings within the Act. Section 42 provides that the Agency may be liable to contribute to the liability of an ‘insurer’. It could not have been Parliament’s intention for the Agency to be obliged, on the one hand, to contribute to the liability of an Interstate Insurer and, on the other, entitled to seek recovery from them.

Claims involving Interstate Insurers

Apart from under section 102, the word ‘insurer’ under the NIISQA does not appear to extend to Interstate Insurers. This does not detract from the obligation of the Agency to pay for the treatment, care and support of participants under the NIISQA.

With the word ‘insurer’ under the NIISQA limited to licensed insurers, the Agency has no obligation to contribute towards the liability of Interstate Insurers, against which common law claims are made. Accordingly, Claimants may pursue those Interstate Insurers for the total of their damages (apart from amounts already paid by the Agency) in the usual way. However, the Agency is authorised to pursue Interstate Insurers for recovery of the present day value of any future treatment, care and support required by the Claimant.

Interstate Insurers will need to consider their liability for common law damages in Queensland claims and statutory entitlements (including those under their own schemes) in the context of the NIISQA, the MAIA and any local legislation or policy applying to the vehicles registered interstate which they insure. Lawyers for Claimants will need to provide different advice to their clients as to the process under the Act, depending on the identity of the Insurer.

BOOK A FREE CONSULTATION to discuss your personal injury matter by calling (07) 3067 3025 or complete the online enquiry form below.

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Kate DenningInterstate Insurers and the National Injury Insurance (Qld) Act 2016 (Qld)
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InDefence covers legal and technical issues in a general way. Changes in circumstances or the law may affect the completeness or accuracy of the information published. InDefence is not designed to express opinions on specific cases, to provide legal advice or to establish a relationship of client and lawyer between Denning Insurance Law and the reader, or any third party. No person should act or refrain from acting solely on the basis of this publication. You should seek legal advice particular to your circumstances before taking action on any issue dealt with in this blog.