March 26, 2019

Insurance

On 30 January 2012, Lorraine Brown (the Plaintiff) was injured when the motor vehicle she was driving on Pioneer Drive at  Logan Village collided with another vehicle (the motor vehicle accident).

The Plaintiff was charged with criminal offences arising from the motor vehicle accident (the criminal charges).

The Plaintiff elected to have the criminal charges arising from the motor vehicle accident dealt with by way of indictment and not summarily.

When the matter was called on for trial on 18 March 2014 in the District Court at Beenleigh, the plaintiff entered a plea of guilty. She was sentenced by Koppenol DCJ on 19 March 2014.

The plaintiff was, by her plea, “found guilty” of “an offence” and the act constituting the “offence” was driving in a manner that was objectively dangerous, namely driving the motor vehicle on the wrong side of the road.

Koppenol J fined the plaintiff $750.00, disqualified her from holding or obtaining a driver’s license for a period of six months from 19 March 2014 and recorded a conviction.

Section 6 of the Criminal Code initially provided:

6. Civil remedies.

When by the Code any act is declared to be lawful,
no action can be brought in respect thereof.

Except as aforesaid, the provisions of this Act shall not affect any right
of action which any person would have had against another if this Act
had not been passed; nor shall the omission from the Code of any penal
provision in respect of any act or omission which before the time of
the coming into operation of the Code constituted an actionable wrong
affect any right of action in respect thereof.”

By the Criminal Law Amendment Act 1997, s 6 was amended so it now reads:

“6 Civil remedies

(1) When by the Code any act is declared to be lawful, no action can
be brought in respect thereof.

(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.

(3) Subsection (2) applies whether or not a conviction is recorded
for the offence. (my emphasis)

When the Plaintiff sued the defendant Council for damages (the civil claim) she alleged negligent road construction, design and maintenance caused the motor vehicle accident and her injuries.

In defending the civil claim the defendant pleaded that the claim was defeated by the operation of s 6(2) of the Criminal Code.

The plaintiff applied to strike out that plea before Davis J in the Supreme Court at Brisbane.

On 8 March 2019 in Brown v Logan City Council [2019] QSC 46 the Court refused that application

the Supreme Court found:

  1. the Plaintiff suffered loss and injury; and

  1. the civil claim arose from the driving which was particularised as dangerous in the prosecution of the criminal charges and therefore the injuries were suffered “in connection with”;

  1. the commission of an indictable offence (namely the dangerous operation of the vehicle for which she was convicted on indictment)

The Plaintiff’s application to strike out the operation of section 6 of the Criminal Code was dismissed. Further section 6 of the Criminal Code was held a complete answer to the plaintiff’s claim.

The decision can found here https://archive.sclqld.org.au/qjudgment/2019/QSC19-046.pdf