Raad v Cossey (NSWDC 2022)

Link to Decision

Key Takeaways

Although this case relates to a motor accident, the principles enunciated are of general application in civil litigation, particularly personal injuries claims. It provides a reason to closely review the conduct of a plaintiff where there may have been criminal activity which was relevant to the cause of the injury.

To embark on an activity that is tainted with criminality which causes the injury will lead at least to a reduction of damages for contributory negligence, and may result in a finding of no liability in the defendant.

Brief Facts

The defendant was the driver and the plaintiff a passenger in a motor vehicle which left the road and crashed, causing significant injuries to the plaintiff. The vehicle was owned by the plaintiff. Neither the plaintiff nor the defendant held a driver’s licence. There were complex procedural issues arising from the Motor Accidents Compensation Act. The parties made, and the Court granted, an application to separate the determination of liability from quantum.

The plaintiff and defendant were well-known to each other and frequently consumed drugs together, including ice, cocaine, ecstasy and marijuana. After a period of days on drugs with the plaintiff, and without sleep, the defendant checked into a hotel to sleep. In the 24 hours before the accident, she had taken ’a fair bit’ of ice and cocaine. The plaintiff and two mutual friends came to the hotel and they had more ice and cocaine. The friends started arguing. The defendant just wanted to sleep. The plaintiff suggested that they go fishing.

The plaintiff was disqualified from driving and the defendant had an expired learner’s permit. The evidence was that the plaintiff knew that the defendant was unlicensed and it was obvious that he knew that the defendant had consumed a large amount of drugs, because he was there when it happened. They set off to go fishing and on the way there the car left the road and the plaintiff suffered serious head and other injuries, leaving him with significant amnesia. At one point during the journey, the defendant stopped the vehicle and told the plaintiff that she was unfit to drive, but the plaintiff urged her to continue. After the accident, the police found a substantial quantity of drugs in the vehicle.

Judgment

The judge was asked to consider the following defences:

Joint illegal enterprise: No duty of care was owed by the defendant to the plaintiff because the plaintiff and the defendant were engaged in a joint illegal enterprise in the use of a motor vehicle being driven by a person known to be unlicensed and under the influence of illicit drugs; and the vehicle was being used for the purpose of transporting illicit drugs.
Conduct tainted with illegality: The conduct of the parties was so tainted with illegality that the defendant owed no duty of care to the plaintiff.
Contributory negligence: The contributory negligence of the plaintiff was such that the proportion of blame attributable to the plaintiff was 100%.

At the outset, the Court analysed the evidence given by the defendant and the plaintiff to assess credibility. The plaintiff denied having any experience with drugs, despite having numerous drug-related convictions. There were several other discrepancies which led the Court to reject the plaintiff as a reliable witness. On the other hand, the defendant had reformed herself and was drug-free and living out of Sydney with her child. She openly gave evidence which did not portray her in a favourable light. She was not challenged in cross-examination and the Court found that her evidence was to be accepted and preferred to that of the plaintiff where they differed.

The Judge made extensive findings of fact which can be summarised as:

• Both parties had consumed large amounts of drugs in a period shortly before the accident.
• They each knew of the other’s consumption of drugs.
• They each knew that the other was unlicensed.
• The plaintiff urged the defendant to keep driving, even though she had stopped the car and said that she was incapable.
• Drug affectation caused the plaintiff’s reckless driving, rather than tiredness.

The Court defined joint criminal liability as arising from the making of an agreement (tacit or express) to engage in a criminal activity and the offender’s participation in its execution. Even the presence of that person at the time the crime is committed and readiness to give aid if required is sufficient to amount to a joint criminal enterprise. The Court identified seven relevant crimes under Drug Trafficking and Road Transport legislation which arose from the activities of the plaintiff and defendant leading up to the accident.

The Judge was satisfied that the plaintiff and the defendant engaged in joint illegal enterprises. The enterprise was threefold. The plaintiff knew or ought to have known that:

• the car was to be driven by the unlicensed defendant;
• the car was being used to transport drugs; and
• the driver was under the influence of drugs.

The Court found that it would be incongruous to recognise the existence of any duty of care owed by the defendant to the plaintiff. The circumstances resulting in the plaintiff’s injuries arose out of exceptional circumstances such that no duty of care arose on the part of the defendant to the plaintiff.

As to conduct tainted with illegality, relying on the matters discussed previously and the findings of fact as to joint criminal activity, the Court held that if a duty of care was ever owed by the defendant to the plaintiff, such duty was negated by the circumstances leading to the accident, being the plaintiff’s knowledge that the defendant was likely to have been drug affected from their joint consumption of drugs at the hotel; and the fact that the defendant held no driving licence, as the plaintiff well knew.

On contributory negligence, the Court found that if it was wrong as to the previous two defences discussed, the plaintiff’s contributory negligence was to the order of 70%.

Implications

This case has an extraordinary set of facts which gave rise to defences which are rarely ventilated and, less rarely, successful. The decision contains a detailed analysis of the applicable case law. It is not a situation which arises frequently, but the impact of criminal behaviour on the part of the plaintiff, if it exists, can have great significance in the outcome of the claim.