The NSW Court of Appeal recently delivered a decision in SW v Khaja [2020] NSWCA 128 in relation to a claim by SW for damages.
In November 2015 the plaintiff (SW) celebrated her 15th birthday. At approximately 10:00 pm the plaintiff and three of her friends entered into a taxi driven by Mr Khaja.
When Mr Khaja pulled over as instructed, a struggle erupted between him and SW, who was seated in the front passenger seat. Mr Khaja told police that SW had produced a knife and demanded money, his wallet and a mobile phone. Mr Khaja pushed SW and she fell out of the passenger doorway. Whilst accelerating away, the rear wheels of the taxi ran over SW.
SW was rendered a paraplegic. SW was charged with armed robbery but acquitted in the Children’s Court.
SW subsequently sued the taxi driver seeking damages for her catastrophic spinal injuries.
District Court Decision
In the District Court there was a significant factual dispute at the trial in relation to whether SW had a knife.
Judge Gibson made factual findings after hearing evidence from SW and her two friends. SW denied she had a knife when she entered the taxi and denied producing a knife in a threatening way to the taxi driver.
One of SW’s friends was arrested on a warrant and brought to Court by the Sheriff’s officers as she had not complied with a subpoena to give evidence. When she gave evidence she said that she heard the plaintiff demand money from the taxi driver and it was after that demand that the struggle was made.
Judge Gibson found SW was not a witness of truth and after analysing all of the evidence found that SW was engaged in an illegal enterprise, namely the commission of robbery involving the use of a knife. Judge Gibson also found that the taxi driver was acting in self-defence.
Section 54 of the Civil Liability Act 2002 (NSW) precludes the Court awarding damages if the death or injury occurred at the time of, or following, conduct of that person, on the balance of probabilities that constitutes a serious offence and that conduct contributed materially to the injury or damage.
Judge Gibson found that section 54 precluded SW from an award of damages due to her serious offence of armed robbery.
Court of Appeal
SW lodged an appeal. On appeal SW’s lawyers argued that the evidence did not support the finding that SW attempted to rob the taxi driver with a knife.
The Court of Appeal held that the CCTV images supported the primary Judge’s findings.
The Court of Appeal also held there was no merit in the argument that SW abandoned her criminal enterprise when she attempted to leave the taxi. The Court held that the offence of attempted armed robbery was complete and section 54 of the Civil Liability Act, by inclusion of the word “following“, precludes recovery of damages for injuries suffered while abandoning a criminal enterprise.
Public Policy
This decision is a very tough lesson for this severely injured plaintiff to learn: crime does not pay. Section 54 of the Civil Liability Act (2002) is an illustration of the public policy that dictates that criminals should not be rewarded for other consequences of their criminal actions.
