CAPTAIN V WOSOMO & ANOR  QSC 86
The Plaintiff and several friends decided to steal a car in the early hours of 8 February 2013. The Plaintiff Captain was 14 years old at the time, the Defendant was 16.
Whilst joyriding in the vehicle, it crashed into a light pole. The plaintiff was not wearing a seatbelt, and was in the front passenger seat of the vehicle. He sustained severe head injuries, and has ongoing resultant disabilities, requiring round-the-clock care and attention.
Did the driver of the car owe the Plaintiff a duty of care?
Had the Plaintiff withdrawn from the joint criminal activity?
Had the Plaintiff voluntarily assumed the risk of being in a stolen vehicle?
Would it be harsh and unjust to deny the Plaintiff damages for liability due to the criminal nature of the acts leading to his injuries?
FINDINGS AND CONCLUSION
The Plaintiff’s claim failed completely.
Section 45 of the Civil Liability Act 2003 excludes civil liability for harm that is suffered whilst a person is engaged in an indictable offence, and where their conduct contributed to the risk of harm. Although it was clear from the evidence that the Plaintiff was a willing participant from the outset, when the car was stolen, the issue was whether he was still a participant, or whether he had made an attempt to withdraw from the criminal activity at the time of the accident.
There was no clear evidence that the Plaintiff had made attempts to get the defendant to cease driving recklessly, or that he asked to be let-out of the vehicle. This is in contrast to another case – Miller v Miller – where the plaintiff had been a participant in the theft of the vehicle, but had requested to be let-out of the vehicle prior to the collision. The best that could be said for the Plaintiff is that he may have told the defendant to slow-down, but there was no direct evidence that he did so, and the defendant denied that anyone had told him to slow down.
If the defendant had not engaged in stealing the car, and had not continued to participate in the joyriding, he would not have been at risk of the injuries he suffered as a result of the collision.
The Plaintiff did not voluntarily assume the risks involved in the defendants driving dangerously. For a person to voluntarily assume the risk, the risk must be one that would be apparent to a reasonable person with the same perception, intelligence and judgement of the person said to assume the risk. As the Plaintiff was only 14, it is unlikely that a person in his position would be likely to see the risk in getting into the vehicle. Furthermore, there would need to be evidence that the Plaintiff had assumed consciously agreed to accept the risk of injury as a result of a collision.
It is sometimes possible for courts to award damages, even where the harm was suffered whilst engaged in an indictable offence, if it would be harsh and unjust not to do so. Although the Plaintiff was young at the time of the offence, he was old enough to be criminally responsible for his conduct. Although the Plaintiff was not responsible for the dangerous operation of the vehicle, that does not mean that he was not guilty of unlawfully using a vehicle. Furthermore, the Plaintiff materially contributed to the ability of the defendant to drive in a dangerous manner. This means it was not harsh and unjust for section 45 to operate, his youth and severity of injury notwithstanding.
Where s45 of the Civil Liability Act 2003 operations, it will prevent a plaintiff from effecting any claim against a defendant. The mere fact that the harm suffered may be acute, severe, and life-long will not make it harsh or unjust for such a Plaintiff to be denied relief in the form of damages.
When engaging in any act it is important not only to consider the criminal liability that may be incurred, but that public policy motivations may make it impossible to recover any form of compensation or other payment to assist with ongoing health or medical costs should one sustain injury.