JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: QUINE -v- KEERASAWAT [2014] WADC 150
CORAM: HERRON DCJ
HEARD: 24-26 JUNE 2014
DELIVERED : 27 OCTOBER 2014
FILE NO/S: CIV 1990 of 2012
BETWEEN: CADE JASON QUINE
Plaintiff
AND
KEVEN KEERASAWAT
Defendant
Catchwords:
Motor vehicle accident - Negligence - Damages for person injuries - Unlawful use of a motor vehicle - Plaintiff and defendant jointly engaged in criminal conduct - Whether defendant owed a duty of care to the plaintiff - Offenders (Legal Action) Act 2000 s 5
Legislation:
Criminal Code Amendment Act 2004
Criminal Code s 3, s 7(a), s 8, s 371A, s 378
Criminal Procedure Act 2004 s 3
Evidence Act 1906 s 7
Interpretation Act 1984 s 67(1a)
Offenders (Legal Action) Act 2000 s 5, s 5(1), s 5(2)
Road Traffic Act 1974
Workers' Compensation and Injury Management Act 1981 s 5
Result:
Action dismissed
Representation:
Counsel:
Plaintiff: Mr G Droppert
Defendant: Mr P D Quinlan SC & Ms G L Taylor
Solicitors:
Plaintiff: Donna Percy & Co
Defendant: Tottle Partners
Case(s) referred to in judgment(s):
Austin v The Electricity Networks Corporation [2014] WASCA 89
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Briginshaw v Briginshaw (1938) 60 CLR 336
Hatzimanolis v ANI Corp Ltd (1992) 173 CLR 473
Heyes v State of Western Australia (2008) 185 A Crim R 390; [2008] WASCA 124
Jones v Dunkel (1959) 101 CLR 298
Luxton v Vines (1952) 85 CLR 352
Miller v Miller (2011) 242 CLR 446
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Pellew v State of Western Australia (2011) 206 A Crim R 593; [2011] WASCA 86
Pickett v Fuderer (Unreported, WASCA, Library No 980475, 27 August 1998)
Ross v The Queen (1979) 141 CLR 432
Transport Industries v Longmuir (1997) 1 VR 125
Trustees of Property of Cummins v Cummins (2006) 227 CLR 278
HERRON DCJ:
Introduction
The plaintiff Cade Jason Quine (Mr Quine) is aged 23 years, his date of birth being 12 November 1990. In the early hours of 2 June 2011, Mr Quine was a passenger in a Ford utility driven by the defendant, Keven Keerasawat in a westerly direction along Terrace Road, Guildford when Mr Keerasawat lost control of the vehicle as he was attempting to drive around a left-hand bend as a result of which the vehicle mounted a median strip, collided with a tree and overturned.
As a result of the accident Mr Quine suffered serious injuries including fractures at the C4 and C5 levels of his spine causing quadriplegia.
Mr Quine and Mr Keerasawat were at the time of the accident friends. Both of them had been drinking alcohol in each other's company and the company of other friends earlier that night and day at a house at Benara Road, Beechboro. Both were significantly intoxicated at the time of the accident.
The car being driven by Mr Keerasawat, in which Mr Quine was a passenger, was stolen.…
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- AGLC
- Quine v Keerasawat [2014] WADC 150
- Case
- [2014] WADC 150
- Decision Date
CaseChat Overview and Summary
The court held that the term 'criminal conduct' as defined in the Act is broad, encompassing preparatory actions, the actual commission of an offence, and post-offence concealment activities. The court ruled that section 5(1) of the Act does not necessitate a causal link between the injury or loss and the criminal conduct; rather, it requires only a temporal connection. The court interpreted 'in the course of' to include any injury or loss suffered by the injured person during the criminal conduct. This interpretation aligns with the broader construction of 'in the course of' as opposed to 'arose from', which demands a causal connection. The court found that if the legislature intended a causal link to be necessary, it would have used language consistent with section 5(2) of the Act.
The outcome of the case was that the defendant did not owe a duty of care to the plaintiff because the plaintiff's injuries occurred in the course of the criminal conduct. The court's reasoning hinged on the broad interpretation of 'criminal conduct' and the distinction between temporal and causal connections in the context of the Act. The plaintiff's claim for damages was thus dismissed.
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) is very wide: Austin v The Electricity Networks Cooperation [2014] WASCA 89 [26] (Newnes JA with whom Pullin and Murphy JJ agreed). It includes not only the commission of an offence but anything done or omitted to be done preparatory for or associated with the commission of the offence, or once the offence has been committed, the concealing of the offence. In my view 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. This construction is supported by comparing the wording in s 5(2) by which the onus is placed on the injured person to show that the injury or loss:(a)arose from an unlawful act that was intended to result in the offender suffering injury or loss; or(b)arose from circumstances —(i)which were entirely separate from those to which the offender was exposed by reason of being engaged in criminal conduct; and(ii)to which the offender was exposed in common with other persons who were not engaged in criminal conduct. The expression 'arose from' requires a causal connection. It is more narrowly construed than the expression 'in the course of' in s 5(1). Were it intended that s 5(1) provide a defence only if injury or loss suffered was caused by the criminal conduct s 5(1) would have been drafted to say that the injury or loss arose from the criminal conduct rather than in the course of the criminal conduct by the injured person, that is the offender. The expressions 'in the course of' and 'arose from' are similar to the wording in s 5(a) of the Workers Compensation and Injury Management Act 1981 'arising out of or in the course of the employment' in the definition of 'injury', which expression has been judicially considered in a great number of cases. In Hatzimanolis v ANI Corp Ltd (1992) 173 CLR 473 (Toohey J) said [487]:With the introduction of the disjunctive expression 'arising out of or in the course of employment', there was no reason to give 'in the course of' a restricted interpretation (31). Inevitably, perhaps, 'arising out of' was seen as implying a causal relationship; 'in the course of', a temporal connexion. Although s 5(2) of the Offenders (Legal Action) Act uses the expression 'arose from' rather than 'arising out of', and the meaning of the expression in the Workers' Compensation and Injury Management Act must be understood as being construed in the context of that Act so as to give effect to the remedial purpose of the legislation, in my view there is no material difference in the meaning of the two expressions.