JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: HOWARD -v- LYNDON [2023] WADC 99
CORAM: RUSSELL DCJ
HEARD: 12-14 SEPTEMBER 2022
DELIVERED : 28 AUGUST 2023
FILE NO/S: CIV 3627 of 2017
BETWEEN: AARON BRIAN HOWARD
Plaintiff
AND
PATRICK BERNHARD LYNDON
Defendant
Catchwords:
Tort - Negligence - Motor vehicle accident - Whether defendant owed a duty of care to the plaintiff - Contributory negligence - Whether plaintiff has a defence to claim under Offenders (Legal Act) Act 2000 (WA), s 5 - Whether injury or loss suffered in course of criminal conduct
Legislation:
Civil Liability Act 2002 (WA), s 5B, s 5K, s 5K1(1)
Criminal Code Act Compilation Act 1913 (WA), s 24, s 371, s 371A, s 414, s 417, s 417(1), s 417(2)
Evidence Act 1906 (WA), s 79C, s 79D
Law Reform (Contributory Negligence and Tortfeasor's Contribution) Act 1947 (WA), s 4
Offenders (Legal Action) Act 2000 (WA), s 3(1), s 3(2)(a), s 5, s 5(1)
Result:
Judgment for the plaintiff
Contributory negligence assessed at 30%
Liability apportioned 70%/30% in favour of the plaintiff
Representation:
Counsel:
| Plaintiff | : | Mr D R Clyne |
| Defendant | : | Mr G P Bourhill SC & Mr C C Rimmer |
Solicitors:
| Plaintiff | : | Simon Walters |
| Defendant | : | Sparke Helmore Lawyers |
Case(s) referred to in decision(s):
Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420
Allied Pumps Pty Ltd v Hooker [2020] WASCA 72
Apostolic Church Australia Ltd v Dixon [2018] WASCA 146
Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87
Austin v The Electricity Networks Corporation [2014] WASCA 89
Briginshaw v Briginshaw (1938) 60 CLR 336
Carrati v Potts [2015] WASC 86
CGU Insurance Ltd v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117
Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Gordon v Truong; Truong v Gordon [2014] NSWCA 97; (2014) 66 MVR 241
Hoskins v Ramsden [No 2] [2009] WASCA 90
Johnson v The State of Western Australia [2009] WASCA 71; (2009) 40 WAR 116
Joyce v Anderson [2020] WASCA 48; (2020) 91 MVR 334
McLennan v Campbell [2003] WASCA 145
Moodie v The Queen (1952) 54 WALR 80
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
O'Connor v Insurance Commission of Western Australia [2016] WASCA 95
Ollerton v The Queen (1989) 40 A Crim R 133
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 494
Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266
Quine v Keerasawat [2014] WADC 150
Rankilor v City of South Perth [2016] WASCA 29
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
Sharland v The Queen (Unreported, WASC, Library No…
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- AGLC
- Howard v Lyndon [2023] WADC 99
- Case
- [2023] WADC 99
- Decision Date
CaseChat Overview and Summary
The court held that the expression "criminal conduct" is very broad, encompassing not only the commission of an offence, but also preparatory acts and concealing an offence. The court held that "in the course of" should be construed broadly to include any injury or loss suffered during the criminal conduct. The court found that Howard had been in possession of the stolen motorcycle at the time of the accident, and that this conduct was preparatory to committing an indictable offence. The court found that Howard's injury was suffered in the course of criminal conduct, precluding him from recovering damages. The court adopted the reasoning of Herron DCJ in Quine v Keerasawat, holding that there need not be a causal connection between the injury and the criminal conduct, only a temporal one. The court held that Howard's possession of the stolen motorcycle at the time of the accident was sufficient to find that his injury was suffered in the course of criminal conduct.
The court dismissed Howard's claim for damages, finding that the injury was suffered in the course of criminal conduct, and that Howard was therefore precluded from recovering damages under the Offenders (Legal Act) Act 2000 (WA), s 5. The court found that Howard had been in possession of the stolen motorcycle at the time of the accident, and that this conduct was preparatory to committing an indictable offence. The court held that there was no need for a causal connection between the injury and the criminal conduct, only a temporal one. The court found that Howard's injury was suffered in the course of criminal conduct, precluding him from recovering damages.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The meaning of the expression 'criminal conduct' as defined in s 3(1) of the Offenders Act is very wide. It includes not only the commission of an offence, but anything done or omitted to be done preparatory to or associated with the commission of an offence or, once an offence has been committed, the concealing of the offence.[64] [64]Austin v The Electricity Networks Corporation [2014] WASCA 89 [26] (Newnes JA, Pullin & Murphy JJ agreeing). I agree with, and respectfully adopt, the reasoning expressed by Herron DCJ in Quine v Keerasawat,[65] and his Honour's views (at [128]) as to the meaning of 'in the course of criminal conduct' in s 5(1) of the Offenders Act: … s 5(1) does not require that the injury or loss suffered by a person be caused by the criminal conduct of that person. It is only necessary that the injury or loss be suffered in the course of the criminal conduct by the person. That is, there only need be a temporal connection, not a causal connection to the criminal conduct. It is not necessary that the injury or loss which is suffered arise from the criminal conduct. In my view, the expression 'in the course of' should be construed broadly to cover any injury or loss suffered by the person injured during the criminal conduct or while the criminal conduct is occurring.[65] Quine v Keerasawat [2014] WADC 150 [128] - [133]. The question I must determine in this case is whether, at the time of the accident (when Mr Howard suffered the injuries to which his claim relates), he was in the course of committing an indictable offence, or (relevantly) doing something for the purpose of or associated with committing an indictable offence. Indictable offence is not defined in the Offenders Act. I refer to and respectfully adopt (without repeating) Herron DCJ's reasons in Quine v Keerasawat[66] as to the meaning of an indictable offence.[67] It is alleged on behalf of Mr Lyndon that Mr Howard is not entitled to damages because the injury and loss claimed was suffered in the course of criminal conduct, because the motorcycle was stolen. Specifically, it is alleged that:1.Mr Howard unlawfully assumed control of the motorcycle (by driving and using it) without the consent of its owner, contrary to s 371A of the Criminal Code;2.Mr Howard took possession of the motorcycle knowing it was stolen, contrary to s 414 of the Criminal Code; or3.Mr Howard was in possession of the motorcycle, being property reasonably suspected to have been stolen, contrary to s 417 of the Criminal Code. Each of the offences alleged is an indictable offence. Section 371A of the Criminal Code provides:371AUsing etc. motor vehicle without consent is stealing(1)A person who unlawfully -(a)uses a motor vehicle; or(b)takes a motor vehicle for the purposes of using it; or(c)drives or otherwise assumes control of a motor vehicle,without the consent of the owner or the person in charge of that motor vehicle, is said to steal that motor vehicle.(2)This section has effect in addition to section 371 and does not prevent section 371 from applying to motor vehicles.