CLA: Criminal activity & withdrawal or not before injury

Captain v Wosomo & Anor [2017] QSC 86

Daubney J

The plaintiff was the front seat passenger of a stolen motor vehicle which had crashed into a light pole in February 2013. As a result of the crash, the plaintiff was left significantly disabled and now requires 24-hour care and attention.

At the time of the accident, the plaintiff was fourteen years nine months old and the driver, the defendant, sixteen years old.


Section 45 of the Civil Liability Act 2003 (Qld) (the “CLA”) provides that criminals are not to be awarded damages however the plaintiff submitted that:

  1. By the time of the incident, the plaintiff had withdrawn from the criminal activity; and, as an alternative;
  2. If the plaintiff did fall under the exclusion in s 45(1), s 45(2) should apply as s 45(1) would operate harshly and unjustly.

The defendant joined issue with both submissions and also submitted that no duty was owed to the plaintiff and therefore s 45 did not apply. As the plaintiff was not wearing a seatbelt at the time of the incident, the defendant also raised the issue of contributory negligence.

Duty of care

Considering whether s 45 of the CLA applied, Daubney J stated as follows:

[37] It seems to me that the position advanced by the defendant is correct. The premise necessarily underlying the operation of s 45 is that there has been a “breach of duty”, and that, in turn, necessarily requires identification of the duty which has been breached. If, as the defendant asserts, the defendant owed no duty to the plaintiff in the circumstances of this case, then that is the end of the matter and it is not necessary to have recourse to s 45.

[38] It was not in issue before me that, from the time they stole the vehicle, the plaintiff and the defendant were jointly engaged in the unlawful use of the vehicle, a crime under s 408A of the Criminal Code (Qld). The criminal culpability of the plaintiff arose by operation of s 8 of the Criminal Code (Qld). It is clear that, when they set off in the stolen vehicle, the plaintiff was engaged in a joint illegal enterprise of unlawfully using a motor vehicle without the consent of the person in lawful possession thereof.

His Honour examined Miller v Miller (2011) 242 CLR 446, where the High Court concluded that:

[101] … The statutory purpose of a law proscribing dangerous or reckless driving is not consistent with one offender owing a co-offender a duty to take reasonable care. And in a case where two or more are complicit in the offence of illegally using a vehicle, the statutory purpose of the law proscribing illegal use (here, s 371A) is not consistent with one offender owing a co-offender a duty to take reasonable care. The inconsistency or incongruity arises regardless of whether reckless or dangerous driving eventuates. It arises from the recognition that the purpose of the statute is to deter and punish using a vehicle in circumstances that often lead to reckless and dangerous driving.

Applying this, Daubney J found:

[46] In the present case, on the facts as I have found them, when the vehicle was stolen and thereafter, the defendant and the plaintiff were complicit in the offence of illegally using the vehicle. On the authority of Miller v Miller, it must therefore be said that, for so long as they were complicit in that joint illegal enterprise, the defendant did not owe the plaintiff a duty to take reasonable care.

As to whether the plaintiff had withdrawn from the joint illegal enterprise, his Honour held:

[49] … [I]n order to prove withdrawal from the common illegal enterprise in this case, the plaintiff would have to establish:

(a) something more than mere mental change of intention; and

(b) timely communication of the withdrawal; and

(c) that he took such action as he could reasonably take to undo the effect of his previous encouragement or participation.[35]

His Honour noted that the only act evidencing the plaintiff’s withdrawal from the joint illegal enterprise was the shouting of “slow down” immediately before the accident. However, on the evidence, his Honour was not satisfied that it was one of the boys yelling “slow down” and even if it were, it was merely a request to slow down and not evidence of a withdrawal from the joint illegal enterprise such as asking to be let out of the car as in Miller v Miller.

Accordingly, Daubney J found that s 45 of the CLA did not apply and the defendant did not owe the plaintiff a duty to take reasonable care.

His Honour went on to state that if s 45 of the CLA did apply, s 45(1) would operate in a harsh and unjust manner because the result of the plaintiff’s involvement in the criminal activity was very heavy compared with the criminal act. Therefore, the plaintiff would have been allowed damages but reduced by 50% pursuant to s 45(3) of the CLA.

Daubney J also noted that had there been a duty of care, the failure on the part of the plaintiff to wear a seatbelt would have further reduced damages by 15%.

Accordingly, the plaintiff’s claim was dismissed.

David Cormack – Brisbane Barrister & Mediator

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