A young girl who, whilst attempting to rob a taxi driver was rendered a paraplegic after coming out of the moving taxi, has unsuccessfully sued the taxi driver in negligence, with the District Court of New South Wales finding the plaintiff was engaged in an illegal enterprise and there was no duty of care owed in the circumstances.
Background
On the evening of 28 November, being the plaintiff’s 15th birthday, she met with three friends and booked a taxi. When the taxi driven by the defendant arrived, the plaintiff sat in the front seat next to the defendant, while her three friends got into the back seat. In the course of exiting, it is alleged that the plaintiff produced a knife and demanded money in an attempt to rob the taxi driver.
There was a struggle as the plaintiff goes out the open door of the taxi and at that time the taxi was moving at approximately 27 kmp/h. The taxi crossed to the wrong side of the road and mounted the kerb, where it struck a small electric box. The plaintiff, who was out of the taxi at this time, was found on the footpath, also on the wrong side of the road. The three friends attempted to drag the plaintiff from the place where she was lying but, when they could not do so, they left the scene. A number of local residents went to the assistance of the plaintiff. The police arrived at the scene and a kitchen knife fitting the description was located by the police at the scene of the accident. The plaintiff was conveyed to hospital by ambulance suffering catastrophic injuries. She was rendered a paraplegic as a result of the incident.
Court proceedings
The plaintiff commenced proceedings in the District Court of New South Wales against the defendant taxi driver, in negligence and claimed damages. She alleged that the defendant was negligent in pushing the plaintiff out of a moving vehicle. The plaintiff denied that she had a kitchen knife, or that she used it, or that she made any attempt to rob the taxi driver. [26]
Her Honour Gibson DCJ found that plaintiff was engaged in an illegal enterprise, namely the commission of robbery involving the use of a knife, and that the defendant was acting in self-defence and that therefore no crime was committed by him. [149] Gibson DCJ also found that there was no duty of care owed to the plaintiff in circumstances where the plaintiff was using a knife to try to rob the defendant and he was responding by trying to push her away or out of the vehicle. Applying the “but for” test as laid down in s 5D(1)(a) of the Civil Liability Act 2002 (NSW), the plaintiff failed to discharge the onus of proving that any negligence in the defendant moving his car from park to drive, accelerating the car and pushing the plaintiff away was a necessary part of the harm. The plaintiff’s commission of the offences was the dominant and immediate cause; the defendant was responding to a threat of serious harm. [178] and [179]
Accordingly, Gibson DCJ found in favour of the defendant: SW v MK (No. 5) [2019] NSWDC 242
This case will shortly be fully reported in the Australian Torts Reporter.
This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au
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