July 23, 2020

SW v Khaja [2020] NSWCA 128.

FACTS

On 28 November 2015 the plaintiff (SW) celebrated her 15th birthday. At approximately 10:00pm, the plaintiff and three friends entered a taxi. The plaintiff was the front seat passenger. Despite being a warm, dry night in late November, all four passengers were wearing hoodie style jumpers, in addition to hats or caps. 

After a short taxi ride, a struggle ensued with the plaintiff and driver of the taxi (Khaja) when the plaintiff allegedly brandished a kitchen knife and demanded money from him. The taxi driver pushed the plaintiff away resulting in the plaintiff falling from the vehicle. Whilst accelerating away, the rear wheels of the taxi ran over the plaintiff. 

Due to the injuries sustained, the plaintiff was rendered a paraplegic. The plaintiff was arrested and charged with armed robbery but acquitted in the Children’s Court. The plaintiff subsequently sued the taxi driver for damages.

 

DISTRICT COURT DECISION

Judge Gibson determined that the plaintiff was not entitled to damages and found:
  • Despite the plaintiff’s assertion at trial that there was no knife, it was inconsistent with other evidence including a file note of a hospital social worker (where the solicitor was present), and from one of the plaintiff’s friend’s at trial;
  • The plaintiff had a knife in a pocket which was shown to the taxi driver as money was demanded from him;
  • As a result of the struggle, and as the plaintiff was pushed away, the plaintiff fell from the taxi; and 
  • Due to the plaintiff’s illegal enterprise of robbery involving the use of a knife, and because the taxi driver was acting in self-defence, Judge Gibson held there to be:
  • No duty of care owed to the plaintiff;
  • Even if a duty of care were owed, it had not been breached due to the driver’s response to a threat of serious harm;
  • Section 54 of the Civil Liability Act 2002 (NSW) precluded the plaintiff from an award of damages due to her serious offence of armed robbery.


COURT OF APPEAL DECISION

The plaintiff lodged an appeal on 13 separate grounds. Justice McCallum (Emmett JA and Simpson JA agreeing) dismissed the appeal and held:
(a)    The plaintiff had a knife and attempted to rob the taxi driver;
(b)    The plaintiff’s actions materially contributed to the injuries confirming that a court is not to award damages pursuant to Section 54;
(c)    The evidence did not support an assertion that any illegal enterprise had ceased when the plaintiff attempted to exit the taxi, particularly noting the inclusion of the word “following” in section 54(1) precluding damages;
(d)    The taxi driver’s act of pushing away the plaintiff was an act of self-defence;
(e)    As Section 54 applies, the taxi-driver’s act of pushing the plaintiff was immaterial as to whether it materially contributed to the plaintiff’s injuries;
(f)    The taxi driver did not owe the plaintiff a duty of care, but if he did, it was not breached; and
(g)    Even though the taxi driver was not called to give evidence, the plaintiff’s tender of the taxi driver’s police statement went to his subjective belief concerning self-defence. This reduced any adverse inference of him not being called as a witness.
 
The Court of Appeal also held that the primary judge’s conclusion about contributory negligence should not be interfered with (100% if committing a crime, 90% if some kind of misunderstanding due to the conduct of the plaintiff which was well out of the ordinary). Similarly, the assessment of non-economic loss is discretionary with no error made ($450,000 had the plaintiff been successful)
 
 

IMPLICATIONS

Public policy dictates that criminals should not be rewarded for other consequences of their actions.

Pursuant to Section 54 of the Civil Liability Act, a court must not award damages for injuries that were sustained whilst a person was conducting (or following) a serious offence, and, the conduct contributed materially to those injuries. 

The weight of contemporaneous documents can be critical. A file note recorded shortly after the accident confirmed that the plaintiff had a knife during the attempted robbery. Similarly the statement of the taxi driver, which had been tendered without qualification, was evidence of his subjective belief that he was acting in self-defence. 

The matter also usefully deals with minimising inferences consequent upon Jones v Dunkel (1959) 101 CLR 298 where evidence as to the inference has been tendered, especially when tendered by the party seeking the adverse inferences.