SW v Khaja (2020 NSWCA)

Key Takeaways

The NSWCA last month upheld a District Court decision, finding that a teenage person injured in circumstances where a serious criminal offence she had committed materially contributed to or caused her injuries was not entitled to an award of damages in accordance with s54(1) of the Civil Liability Act 2002 (CLA).

This case demonstrates that irrespective of any argument about whether a defendant’s reaction in causing injury by way of self-defence was reasonable (such that s52 of the CLA might then apply to prevent a finding of liability), s54 of the CLA can operate in the context of criminal activity to prevent any award of damages to a plaintiff (if the plaintiff’s conduct amounts to a serious criminal offence as defined in the section).

s54 applies in circumstances where the plaintiff’s injury occurred at the time of, or following, conduct of theirs that constitutes a serious offence, providing that such conduct contributed materially to the injury or to the risk of injury.

Brief Facts

The appellant, aged 15 at the time, and her three friends were travelling in a taxi being driven by the respondent. Soon after the taxi’s arrival at their destination, and after her three friends had exited the vehicle, the appellant, who was sitting in the front, opened her door to leave. But then a struggle ensued between the appellant and the respondent.

During the struggle, the taxi began moving forward, reaching a speed between 22-28 km/h, at which point the appellant fell out, landing on a footpath and sustaining catastrophic spinal injuries resulting in paraplegia.

It was alleged by the respondent that the appellant produced a knife and demanded money in an attempt to rob him. The police found a kitchen knife at the scene of the accident.

The appellant sued the respondent in the DCR NSW, alleging that he negligently pushed her out of the moving taxi. At trial, Gibson DCJ dismissed the claim and gave judgment for the respondent, finding that:

• the appellant was engaged in an illegal enterprise, being robbery involving a knife;
• the respondent owed no duty of care to the appellant in circumstances where he pushed the appellant away or out of the vehicle because she was using a knife to rob him;
• the appellant had not established causation (factual or scope of liability within the meaning of s5D(1)(a)-(b) of the CLA);
• the appellant’s commission of the offence was the dominant and immediate cause of the injury and that the respondent was responding to a threat of serious harm;
• the appellant was not entitled to an award of damages because of s54(1) of the CLA.

Judgment

On appeal, the appellant focused on and contested the factual findings at trial and also identified technical errors in those findings to the extent that the trial judge did not directly and specifically address some of the elements of the available defence in s54 of the CLA concerning criminal enterprise.

The appellant conceded on appeal that there was sufficient evidence to support a finding that the appellant had a knife in her possession, but she challenged the findings that she used the knife to rob the respondent, and contended that to the extent that his conduct amounted to self-defence it ceased when he deliberately prevented the appellant from leaving the taxi.

This last submission was aimed at confining the criminal activity of the plaintiff to the period prior to her ejection from the taxi.

In a unanimous decision, the NSWCA dismissed the appeal, finding that:

• the appellant was engaged in an illegal enterprise, being the commission of robbery with a knife;
• the illegal conduct on the part of the appellant had not ceased or been abandoned when the appellant attempted to exit the taxi;
• the respondent’s act of pushing the appellant away from him while she was holding a knife was necessary to defend himself and constituted self defence and therefore satisfied s52 of the CLA;
• the commission of a serious offence by the applicant was the ‘dominant and immediate cause’ and materially contributed to the injury;
• the injury ‘followed’ the commission of a serious offence; and
• s54 of the CLA precludes any award of damages in those circumstances.

Implications

In this case the NSWCA observed in relation to s54 of the CLA that s54(2) specifies that s54(1) does not apply to preclude an award of damages if the conduct of the defendant that caused the injury constitutes an offence. The finding of self-defence on the part of the driver was therefore most important to the outcome.