The Supreme Court of Queensland has dismissed an injured plaintiff’s application to strike out those parts of a defence which plead a statutory bar to her claim for damages on account of the fact she was convicted of dangerous operation of a motor vehicle following the accident for which she is now seeking damages.
In issue
- Whether the plaintiff’s claim was barred by reason of her being engaged in an indictable offence at the time of the accident (pursuant to section 6 of the Criminal Code of Queensland 1899 and/or section 45 of the Civil Liability Act 2003); and
- Whether section 6 of the Criminal Code of Queensland 1899 was impliedly repealed by section 45 of the Civil Liability Act 2003 due to the sections being inconsistent such that they cannot stand together.
The background
On 30 January 2012, the plaintiff was injured when her vehicle crossed on to the wrong side of the road and collided violently with a van approaching from the opposite direction.
Police investigated the accident and the plaintiff was charged on complaint and summons with dangerous operation of a motor vehicle.
The plaintiff applied to have the prosecution proceed on indictment rather than summarily and, in due course, the indictment was presented in the District Court at Beenleigh. The plaintiff entered a plea of guilty. The Court fined the plaintiff $750, disqualified her from obtaining a drivers’ license for a period of 6 months and a conviction recorded.
The plaintiff commenced a claim for damages for personal injuries alleging negligence on the part of the Logan City Council. The alleged the collision was caused because she drove on the wrong side of the road as a consequence of the failure of the defendant to mark the centreline on the road and take other steps to ensure the safety of the road at the location of the sweeping bend where the collision occurred.
In its defence of the claim, the Logan City Council denied that the plaintiff was entitled to commence proceedings for personal injuries due to the operation of section 6 of the Criminal Code Act 1899 (the Criminal Code) which provides that:
'A person who suffers loss or injury in, or in connection with, the commission of an indictable offence of which the person is found guilty has no right of action against another person for the loss or injury.'
In the alternative, the Logan City Council relied upon section 45 of the Civil Liability Act 2003 (the CLA) to deny the plaintiff’s claim. Section 45 of the CLA provides a defence to a civil claim where the breach of duty happens while the person who suffered harm was engaged in conduct that was an indictable offence and the person’s conduct contributed materially to the risk of harm. However, section 45 confers discretion upon the Court to award damages where it would be harsh or unjust not to do so in the circumstances of the particular case.
This decision relates to an application by the plaintiff to strike out those parts of the Logan City Council’s defence, pursuant to rule 171 of the UCPR.
The decision at trial
The Court considered whether section 45 of the CLA impliedly repealed section 6 of the Criminal Code and determined that it did not.
It was held that the two provisions materially differed in a number of important respects:
- Section 6 of the criminal code requires a finding of guilt on indictment whereas, section 45 of the CLA can be engaged whether or not there has been a prosecution for the offence.
- Section 45 of the CLA will only apply where the breach of duty for which compensation is being claimed happened while the offence was being committed, while section 6 of the criminal code only requires that the loss or damage be suffered ‘in connection with’ the conduct which constitutes the offence;
- Section 45 only applies when the conduct constituting the offence ‘contributed materially to the risk of the harm’ when there is no such restriction in section 6 of the Criminal Code.
Therefore, there was no implied repeal of section 6 of the Criminal Code by section 45 of the CLA.
In fact, it was observed that the operation of section 6 of the Criminal Code is expressly preserved by section 7 (2) of the CLA which provides that a provision of the CLA that gives protection from civil liability does not limit the protection from liability given by another provision of this Act or by another Act or Law.
The court held that in light of these findings, the Logan City Council’s denial of the plaintiff’s entitlement to damages pursuant to section 6 of the Criminal Code is not only a valid defence, but a complete answer to the plaintiff’s claim.
The plaintiff’s application to strike out that part of the defence was dismissed.
Implications for you
When considering the effect of a plaintiff’s criminal conduct on their entitlement to pursue a claim for damages, we must look to both section 6 of the Criminal Code and section 45 of the CLA.
When it is engaged, section 6 of the Criminal Code will provide a complete defence to an action.
Section 45 of the CLA will have broader application, including in circumstances where there has not been a prosecution or conviction, but is subject to discretion such that the court will only apply it if it does not operate harshly or unjustly in the circumstances of the particular case.
