Brown v Logan City Council [2019] QSC 46
If a person commits a crime, can they still claim damages for personal injuries arising out of the event? Well… it depends.
The Civil Liability Act 2003 (Qld) (CLA) and the Criminal Code Act 1899 (Qld) (CCA) each limit the circumstances in which a person may claim damages for personal injuries sustained in connection with a criminal offence.
In the recent decision of Brown v Logan City Council [2019] QSC 46, the Supreme Court of Queensland considered whether a claim could be defended by the Council on the basis that the Plaintiff had no entitlement to sue in the first place.
Background
The Plaintiff (Ms Brown) was injured in a motor vehicle accident when her vehicle passed onto the wrong side of the road at a sweeping bend and she collided with an oncoming vehicle.
The Plaintiff was charged with dangerous operation of a vehicle. She pleaded guilty to the offence, which was dealt with on indictment in the District Court.
She sued the Council for the injuries she sustained from the accident. She alleged failures on the part of the Council with respect to the design, construction and maintenance of the road. In response to the Plaintiff’s claim, the Council pleaded that the Plaintiff was not entitled to commence proceedings by virtue of section 6 of the CCA and, in the alternative, was not entitled to an award of damages by operation of section 45 of the CLA.
After a Request for Trial Date was filed, the Plaintiff made application to the Court, seeking to strike out the paragraph of the Council’s pleading that relied upon section 6 of the CCA.
Issue for determination
Section 6 of the CCA states relevantly as follows:
‘Civil remedies
…
(2) A person who suffers loss or injury in, or in connection with, the commission of an indictable offence of which the person is found guilty has no right of action against another person for the loss or injury.
Section 45 of the CLA provides:
’45 Criminals not to be awarded damages
(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.
…
(4) It does not matter whether the person whose conduct is alleged to constitute an indictable offence has been, will be or is or was capable of being proceeded against or convicted of an indictable offence.
(5) If the person has been dealt with for the offence, it does not matter whether the person was dealt with on indictment or summarily.
The issue for determination by the Court was whether section 45 of the CLA operated to repeal section 6(2) of the CCA.
The Plaintiff’s Submissions
The Plaintiff argued that section 45:
(a) ‘covers the field’, so there is no need for section 6;
(b) other Australian jurisdictions have a provision similar to section 45 in their legislation, which fulfills a similar purpose;
(c) if section 6 remains in force, then section 45 has no real legal effect; and
(d) the two sections cannot stand together and work cumulatively.
The Judgment
In refusing the Plaintiff’s application, His Honour Justice Davies observed that there must be very strong grounds to support an implied repeal and displace the general presumption that both provisions continue to operate. His Honour was not satisfied that such grounds were made out in the Plaintiff’s case, finding:
(a) the two sections operate very differently;
(b) section 45 limits the liability of a potential defendant, whereas section 6 removes the potential plaintiff’s cause of action;
(c) the CLA does not limit the protection from liability given by a provision of another Act or law: section 7(2).
The decision of the Court disposed of the Plaintiff’s claim at interlocutory stage, without the need for a trial.
Considerations for personal injury claims involving criminal conduct
In Brown’s case, the Application was not heard until after a Request for Trial Date was filed. However, the same claim resolution strategy could be used to bring a claim involving criminal conduct to an end during the pre-Court stage, on application by a Respondent.
Having regard to the reasoning in Brown, the relevant legislation in Queensland and other decisions from the Courts, the current state of play with respect to criminal conduct and Queensland claims for personal injuries may be summarised as follows:
(a) a conviction for an indictable (serious) offence, dealt with on indictment will disentitle a person from claiming damages for personal injuries in connection with the offence: section 6 CCA; Brown v Logan City Council [2019] QSC 46;
(b) a conviction for an indictable offence, dealt with summarily, will be deemed to be a conviction for a simple offence and will not engage section 6 of the CCA, so as to disentitle a potential plaintiff: Corliss v Gibbings-Johns [2010] QCA 233;
(c) the liability of a potential defendant may be limited (in entirety) by the potential plaintiff’s commission of a criminal offence, if it materially contributes to the risk of harm: section 45 CLA;
(d) if it would be ‘harsh and unjust’ to deprive a potential plaintiff from an award of damages under section 45, their damages are to be reduced by 25% or more: section 45(3) CLA;
(e) where a plaintiff makes clear and repeated requests to withdraw from a joint illegal enterprise, they may be owed a duty of care: Miller v Miller (2011) 242 CLR 446;
(f) where a plaintiff actively participates in a joint illegal activity (such as a joyride in a stolen vehicle), they may be owed no duty of care and section 45 may operate to limit their damages to $nil: Captain v Wosomo [2017] QSC 86;
(g) section 45 also applies to the criminal conduct of deceased persons in wrongful death claims: section 64 Civil Proceedings Act 2011 (Qld).
Can we help?
It is important to know that this article is not legal advice.
If you are searching for information online about a personal injury claim, you should probably seek legal advice specific to your circumstances. For an appointment regarding a personal injury claim involving criminal conduct call (07) 3067 3025.
