Written by Peter CarterMay 26, 2017
The four boys were glad to find keys in the ignition before rolling the Toyota Hilux ute quietly down the driveway to avoid waking its owners in the Townsville high-set.
Willie jumped in behind the wheel and 14-yr-old Captain joined him in the front.
The carjackers coasted down Aitkenvale’s Rogers Street before Willie sped off down Ross River Rd to the east.
As he turned left into Gulliver Street – less than a kilometre from the scene of the larceny – the ute rammed into a light pole at 80kph.
None of the boys were wearing seat belts. Captain’s injuries were so serious, he now requires 24 hour care and was incapable of giving evidence at the hearing of his Supreme Court compensation claim four years after the February 2013 tragedy.
The claim against the driver – and Suncorp as the vehicle’s CTP insurer – alleged Willie had been driving at an excessive speed and had refused to heed his three accomplices’ pleas to “slow down”.
Suncorp asserted Civil Liability s 45 immunity against the compensation ask by reason of Captain’s “material contribution to the risk of harm” that arose from his “engagement in an indictable offence”.
Captain’s advocates conceded his participation in the offence but argued Suncorp’s immunity plea should be denied because he had no part in the crash that caused the “harm”.
Justice Martin Daubney disagreed, ruling that because “reckless or dangerous driving was a probable incident of the unlawful use of the vehicle”, Captain’s injury was a foreseeable consequence of his conduct.
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Even so, the court was still permitted to award damages – if so minded – under the s45 (2) “harsh and unjust” exculpation.
Justice Daubney reasoned that Captain’s youth and the magnitude of his injuries and their consequences meant the grant of Civil Liability immunity to the driver and his insurer would be “harsh”.
Whether that outcome would also be “unjust” – required in the judge’s view – “at the very least, a balancing of the nature and degree of the criminal conduct being engaged in against the nature and magnitude of the injuries sustained and the consequence” of allowing the liability immunity to stand.
Given the “serious offence” was committed by a juvenile who “has paid a very heavy price for his involvement”, the application of liability immunity so as to leave him bereft of damages would, Justice Daubney wrote in his 26 page judgement, “operate both harshly and unjustly”.
Thus had that been the only issue Captain had to face, the court would have awarded him damages for his injuries discounted by a 50% reduction applied under s45 (3) “on account of the injured person’s conduct”.
Suncorp also argued Captain had “voluntarily assumed” an “obvious risk” of injury just by getting into the stolen Hilux.
The defence of “voluntary assumption of risk” rarely succeeds – observed the judge – because the defendant must show the risk would have been obvious “to a reasonable person in the position of the plaintiff”.
In this instance he concluded “it is not at all apparent to me that the risk of the vehicle being driven dangerously was one which would have been obvious to a reasonable person in the position of the plaintiff exercising the ordinary perception, intelligence and judgement of a 14-year-old boy”.
But even if the risk were obvious, Suncorp had failed to clear the “insurmountable obstacle” that Captain had in fact voluntarily accepted that risk.
Neither was Justice Daubney prepared to consider a “dangerous recreational activity” defence under Civil Liability Act s19 because of the specific and over-arching application of s45 to criminal activity.
He however upheld Suncorp’s contributory negligence argument by allocating an additional 15% damages deduction to the 50% deduction already applied.
As interesting and instructive as such discussion of the operation of Civil Liability immunity is, unfortunately Captain’s case failed at an earlier hurdle.
Wrongdoers are generally held at law to owe no duty of care to their co-participants in the “illegal enterprise”.
For that reason alone Captain’s claim was dismissed.
Justice Daubney ruled that withdrawal from “a common illegal enterprise” – as had been contended for by Captain’s lawyers – required much more than a request to stop driving recklessly and required “the taking of action to undo the effect of his previous encouragement or participation”, which had not occurred.
Barring appeal, Suncorp has been spared a multi-million dollar payout and the youth has been left to a lifetime of reflection.