Quine v Keerasawat  WA DC150
In the recent decision of the District Court of Western Australia, the Court considered damages for personal injuries where there had been an unlawful use of a motor vehicle in circumstances where the Plaintiff and Defendant were jointly engaged in criminal conduct.
On 2 June 2011, the Plaintiff was a passenger in a utility driven by the Defendant when the Defendant lost control of the vehicle whilst attempting to drive around a left hand bend. As a result the vehicle mounted a median strip colliding with a tree and overturning. As a result, the Plaintiff suffered serious injuries including fractures at the C4 and 5 levels causing quadriplegia.
The Plaintiff and Defendant were friends at the time of the accident and had been drinking in each other’s company earlier that night. Both were significantly intoxicated at the time. The vehicle in question was stolen. The Defendant was charged with stealing a motor vehicle and placed on a community based order for 12 months.
The Defendant denied he was negligent in causing the accident and further pleaded that he did not owe a duty of care to the Plaintiff at the time of the accident as both the Plaintiff and the Defendant were jointly engaged in illegal enterprise and, further or alternatively, that the injury arose during the course of criminal conduct by the Plaintiff being the unlawful use of a motor vehicle.
The Plaintiff contended he did not know the vehicle was stolen and therefore was not committing an offence, was not in the course of criminal conduct and was not jointly engaged in an illegal enterprise. The Plaintiff had no recollection of the accident or of being in the car driven by the Defendant. His last recollection was of drinking with friends and the Defendant prior to the accident and then there is nothing until he woke up in hospital. Neither the Plaintiff nor the Defendant held a driver’s license. The Plaintiff had a conviction for stealing a motor vehicle which he said came about because he agreed to take the rap for a friend. He also had a record for driving without a license. The Plaintiff denied he was ever involved in stealing vehicles or that he knew that the Defendant had been involved in stealing vehicles. The Plaintiff did, however, admit to having been a passenger in a car driven by the Defendant before the day of the accident.
The Court noted that “according to the principle in Briginshaw when in a civil proceeding a question arises whether a crime has been committed the standard of proof is the same as upon other civil issues but weight is given to the presumption of innocence and exactness of proof is expected”.
It was noted that the Defendant must prove on the balance of probabilities that the Plaintiff committed an offence of unlawful use of a motor vehicle contrary to the criminal code and that the Plaintiff and the Defendant were together engaged in a joint illegal enterprise. The Plaintiff had no recollection of the accident or of being in the car driven by the Defendant. The Defendant did not give evidence and therefore there was no direct evidence before the Court as to the Plaintiff’s state of knowledge at the relevant time. The Court was therefore required to draw an inference from the surrounding facts and circumstances.
The Court found that the Plaintiff did not have a driver’s license and knew that the Defendant did not have a driver’s license. Despite this the Plaintiff had driven in the past without a license and knew the Defendant had driven a motor vehicle when he did not have a license. Both the Plaintiff and the Defendant had a record of driving without a driver’s license. The Plaintiff mixed with a crowd that stole vehicles and had a record for stealing cars.
The Court was of the view that the Plaintiff had demonstrated a preparedness to commit or be involved in the commission of driving offences. The Defendant had left the party for some 1 to 1.5 hours on foot and when he returned he returned with a vehicle which no one had seen before. Witnesses attempted to dissuade the Plaintiff from getting into the ute with the Defendant due to the Defendant’s intoxicated condition. The Plaintiff ignored these attempts and entered the vehicle driven by the Defendant.
Further the Plaintiff was wearing latex gloves when taken out of the vehicle and he had a history of graffitiing whilst wearing latex gloves.
It is the fact of the complicity in the offence that deprives each party the benefit of the duty of care.
In cross-examination the Plaintiff denied the reason for wearing gloves was so that he would not leave fingerprints in a vehicle he knew to be stolen however he did not have any memory of being in the vehicle or wearing gloves and therefore the Court determined his denial cannot be given any weight.
The Court was satisfied that an inference could reasonably be drawn that the Plaintiff was wearing the gloves for the purpose of not leaving his fingerprints behind in a vehicle he knew to be stolen.
The Court found it inherently unlikely the Plaintiff believed the Defendant lawfully obtained the vehicle and had permission to drive it. The only reasonable reference open on all of the facts and circumstances was that when the Defendant returned with the ute the Plaintiff knew it was being driven without consent of the owner. His intention was to go joy riding with the Defendant and that at some point he put latex gloves on for the purpose of ensuring his fingerprints were not left in the vehicle. Accordingly the Court was satisfied that at the time of the accident the Plaintiff was a passenger in the vehicle knowing it to have been stolen and was therefore unlawfully using the vehicle contrary to the criminal code. He was a principal offender pursuant to the Code. The question then became whether the Defendant owed the Plaintiff a duty of care. The Court concluded that persons complicit in the offence of illegal use of a motor vehicle will not owe one another a duty of care regardless of the particular circumstances of the driving by the Defendant.
It is the fact of the complicity in the offence that deprives each party the benefit of the duty of care. The Court determined that the Plaintiff and Defendant were jointly engaged in the unlawful use of the vehicle and the Defendant did not owe the Plaintiff a duty of care. As such the claim was dismissed.