Captain v Wosomo

Case [2017] QSC 86

SUPREME COURT OF QUEENSLAND

CITATION:

Captain v Wosomo & Anor [2017] QSC 86

PARTIES:

ALIFAIO KOGE CAPTAIN (BY HIS LITIGATION GUARDIAN HILDA GLADYS SAILOR)
(plaintiff)
v
WILLIE WOSOMO
(first defendant)
AAI LIMITED (ACN 005 978 07)
(second defendant)

FILE NO:

1783 of 2016

DIVISION:

Trial Division

PROCEEDING:

Trial

DELIVERED ON:

18 May 2017

DELIVERED AT:

Brisbane

HEARING DATE:

4 – 5 October 2016

Further written submissions received from the parties on 10 October 2016

JUDGE:

Daubney J

ORDERS:

The plaintiff’s claim is dismissed;1.   

I will hear the parties as to costs.2.   

CATCHWORDS:

TORTS – NEGLIGENCE – MISCELLANEOUS DEFENCES – ILLEGALITY OF PLAINTIFF’S ACTIVITY – OBVIOUS RISKS OF DANGEROUS RECREATIONAL ACTIVITIES - EFFECT OF CIVIL LIABILITY LEGISLATION – INJURIES TO PASSENGERS – DEFENCES OF VOLENTI NON FIT INJURIA, NO BREACH OF DUTY, AND CONTRIBUTORY NEGLIGENCE – FAILURE TO WEAR A SEAT BELT – where the plaintiff had participated in the theft of a vehicle – where the plaintiff was a passenger in the stolen vehicle driven by the defendant – where the vehicle crashed and the plaintiff sustained severe head injuries – whether the plaintiff had effectively withdrawn from the joint criminal activity prior to the accident – whether a duty of care was owed by the defendant to the plaintiff – whether section 45(1) Civil Liability Act 2003 applies to exempt the defendant from civil liability – whether an exemption from civil liability would be “harsh” and “unjust” under s 45(2) Civil Liability Act 2003 – whether the plaintiff voluntarily assumed risk – whether the plaintiff’s injuries were an obvious risk of a dangerous recreational activity – whether the plaintiff was contributorily negligent by reason of failure to wear a seatbelt

TRAFFIC LAW – OFFENCES – PARTICULAR OFFENCES – OFFENCES RELATING TO USE OF VEHICLE WITHOUT CONSENT OF OWNER OR PERSON IN POSSESSION – OFFENCES – where the plaintiff and defendant were jointly engaged in an unlawful use of a vehicle under s 408A Criminal Code (Qld) – whether the plaintiff had withdrawn from the joint illegal enterprise at the time the incident occurred

Civil Liability Act 2003 (Qld)

Criminal Code 1899 (Qld)

Criminal Code 1913 (WA)

Bonnington Casting Ltd v Wardlaw [1956] AC 613
Chappel v Hart (1998) 195 CLR 232
Collins v Clarence Valley Council (2015) NSWLR 128
Council of the City of Greater Taree v Wells [2010] NSWCA 147
Fallas v Maurlas (2006) 65 NSWLR 418
Gala v Preston (1991) 172 CLR 243
Habig v McCrae [2013] QSC 335
Jackson v Harrison (1978) 138 CLR 438
Medlin v SGIC (1994 – 1995) 182 CLR 1
Miller v Miller (2011) 242 CLR 446
O’Connell v 1st Class Security Pty Ltd [2012] QDC 100
Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 231
R v Emelio [2012] QCA 111
R v Menniti [1985] 1 Qd R 520
R v Saylor [1963] QWN 14
R v Whitehouse [1941] 1 DLR 683
Smith v Jenkins (1970) 199 CLR 397
St George Club Ltd v…

Continue reading Captain v Wosomo

Sign in free to access the full text

Details
AGLC
Captain v Wosomo [2017] QSC 86
Case
[2017] QSC 86
Decision Date

CaseChat Overview and Summary

The case of Captain v Wosomo involved a dispute over the liability for injuries sustained by the plaintiff, Captain, when the vehicle he was a passenger in, driven by the defendant, Wosomo, was stolen and subsequently crashed. Captain claimed compensation for his severe head injuries. The court was tasked with determining whether Wosomo was liable for Captain's injuries given that both parties were engaged in a joint illegal activity at the time of the accident. The court also needed to consider whether Captain's failure to wear a seatbelt contributed to his injuries and whether certain statutory defences under the Civil Liability Act 2003 applied to exempt Wosomo from liability. Additionally, the court had to assess whether Captain had effectively withdrawn from the illegal activity prior to the accident.

The court examined whether Captain's participation in the theft of the vehicle constituted an illegal activity that would bar his recovery under tort law. It also considered whether Wosomo owed a duty of care to Captain, and if so, whether Wosomo breached this duty. Furthermore, the court had to determine if section 45(1) of the Civil Liability Act 2003 applied, which exempts liability in cases involving illegal activities, and whether an exemption would be considered harsh and unjust under section 45(2). The court also assessed whether Captain had voluntarily assumed the risk of injury, whether his injuries were an obvious risk of a dangerous recreational activity, and whether Captain was contributorily negligent by failing to wear a seatbelt.

The court found that Captain had not effectively withdrawn from the joint illegal activity at the time of the accident, and therefore, Wosomo was not liable for Captain's injuries under the tort of negligence. The court held that Wosomo was exempt from liability under section 45(1) of the Civil Liability Act 2003, as the injury arose out of an illegal activity. The court further concluded that an exemption would not be harsh or unjust under section 45(2). Additionally, Captain's failure to wear a seatbelt was considered contributory negligence, which further absolved Wosomo of liability.

The court dismissed Captain's claim, and ordered that the parties would be heard as to costs.

Orders

Orders of the court

The plaintiff’s claim is dismissed;1.

I will hear the parties as to costs.2.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.