SW v Khaja - [2020] NSWCA 128

Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: SW v Khaja [2020] NSWCA 128
Hearing dates: 12 March 2020
Decision date: 14 July 2020
Before: McCallum JA at [1];
Emmett AJA at [108];
Simpson AJA at [132]
Decision:
(1) Appeal dismissed.
(2) Appellant to pay the respondent’s costs.

Catchwords:
NEGLIGENCE – motor vehicle accident – passenger falling from moving taxi – central factual contest as to whether she was engaged in joint criminal enterprise of attempted armed robbery of the driver – where appellant conceded that it was open to find she had possession of a knife but denied using it and denied any robbery – whether evidence supports the finding that the appellant did attempt to rob the driver with the knife – prohibition on awarding damages by operation of s 54 of the Civil Liability Act 2002 (NSW)

Legislation Cited:
Civil Liability Act 2002 (NSW), ss 5D(1), 52, 53, 54
Crimes Act 1900 (NSW), ss 61, 94, 97, 98, 99, 117, 192D, 192E, s344A(1)
Motor Accidents Compensation Act 1999 (NSW)
Passenger Transport Regulation 2007 (NSW), cl 163(2)

Cases Cited:
Bevan v Coolahan (2019) 89 MVR 407; [2019] NSWCA 217
Colosimo v DPP [2006] NSWCA 293
Douglas v R [2005] NSWCCA 419
Jones v Dunkel (1959) 101 CLR 298
Laresu Pty Ltd v Clark [2010] NSWCA 180
Lim v Cho (2018) 84 MVR 514; [2018] NSWCA 145
Mencarious v R [2008] 189 A Crim R 219; [2008] NSWCCA 237
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
Rolls Royce Industrial Power (Pacific) Ltd v James Hardie and Coy Pty Ltd (2001) 53 NSWLR 626; [2001] NSWCA 461
SW v MK (No 5) [2019] NSWDC 242

Category: Principal judgment
Parties: SW (appellant)
Md Abdus Khaja (respondent)
Representation:
Counsel:
R S McIlwaine SC; N D Compton (appellant)
P Deakin QC; A Parker (respondent)
Solicitors:
Stacks Goudkamp Lawyers (appellant)
McInnes Wilson Lawyers NSW (respondent)

File Number(s): 2019/190004
Publication restriction: The names of the appellant and some of the witnesses have been anonymised to avoid breach of s 15A(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW).
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2019] NSWDC 242

Date of Decision:

24 May 2019

Before:

Gibson DCJ

File Number(s):

2017/170506

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant suffered catastrophic spinal injuries when she fell from a moving taxi. The driver of the taxi (the respondent) had collected the appellant and three other teenage girls from a location in Ambervale and followed their directions to Campbelltown, which was only a short distance away. When the driver pulled over as instructed a struggle erupted between him and the appellant who was seated in the front passenger seat. During the struggle the taxi began moving forwards, reaching a speed between 22 and 28 km/h by the time the appellant fell out of the passenger side doorway. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SW v Khaja

Details

AGLC: SW v Khaja [2020] NSWCA 128
Case: [2020] NSWCA 128
Decision Date: 14 July 2020

CaseChat Overview and Summary

The appellant, SW, brought proceedings against the respondent, Khaja, a taxi driver, for damages for personal injuries sustained when she fell from the respondent's moving taxi. The central factual dispute concerned whether the appellant was engaged in a joint criminal enterprise with others to rob the respondent of his taxi and its contents, including a knife. The appellant conceded possession of a knife but denied using it or participating in any robbery. The proceedings were heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the evidence supported the finding that the appellant had attempted to rob the respondent with the knife, and consequently, whether the prohibition on awarding damages under section 54 of the *Civil Liability Act 2002* (NSW) applied to preclude the appellant from recovering damages.

The Court of Appeal considered the evidence presented, including the appellant's own admissions and the circumstances surrounding the incident. It was open to the primary judge to find, based on the evidence, that the appellant was involved in an attempted armed robbery of the respondent. This finding meant that the appellant was engaged in a dangerous recreational activity or a criminal act, which triggered the operation of section 54 of the *Civil Liability Act 2002* (NSW). This section prohibits the award of damages for personal injury where the injury was suffered by the person in the course of the person’s participation in a dangerous recreational activity or a criminal act.

The appeal was dismissed, and the appellant was ordered to pay the respondent’s costs.

Orders

Orders of the court

(1) Appeal dismissed.

(2) Appellant to pay the respondent’s costs.

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.

Medium Neutral Citation:	SW v Khaja [2020] NSWCA 128
Hearing dates:	12 March 2020
Decision date:	14 July 2020
Before:	McCallum JA at [1]; Emmett AJA at [108]; Simpson AJA at [132]
Decision:	(1) Appeal dismissed. (2) Appellant to pay the respondent’s costs.
Catchwords:	NEGLIGENCE – motor vehicle accident – passenger falling from moving taxi – central factual contest as to whether she was engaged in joint criminal enterprise of attempted armed robbery of the driver – where appellant conceded that it was open to find she had possession of a knife but denied using it and denied any robbery – whether evidence supports the finding that the appellant did attempt to rob the driver with the knife – prohibition on awarding damages by operation of s 54 of the Civil Liability Act 2002 (NSW)
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 5D(1), 52, 53, 54 Crimes Act 1900 (NSW), ss 61, 94, 97, 98, 99, 117, 192D, 192E, s344A(1) Motor Accidents Compensation Act 1999 (NSW) Passenger Transport Regulation 2007 (NSW), cl 163(2)
Cases Cited:	Bevan v Coolahan (2019) 89 MVR 407; [2019] NSWCA 217 Colosimo v DPP [2006] NSWCA 293 Douglas v R [2005] NSWCCA 419 Jones v Dunkel (1959) 101 CLR 298 Laresu Pty Ltd v Clark [2010] NSWCA 180 Lim v Cho (2018) 84 MVR 514; [2018] NSWCA 145 Mencarious v R [2008] 189 A Crim R 219; [2008] NSWCCA 237 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 Rolls Royce Industrial Power (Pacific) Ltd v James Hardie and Coy Pty Ltd (2001) 53 NSWLR 626; [2001] NSWCA 461 SW v MK (No 5) [2019] NSWDC 242
Category:	Principal judgment
Parties:	SW (appellant) Md Abdus Khaja (respondent)
Representation:	Counsel: R S McIlwaine SC; N D Compton (appellant) P Deakin QC; A Parker (respondent) Solicitors: Stacks Goudkamp Lawyers (appellant) McInnes Wilson Lawyers NSW (respondent)
File Number(s):	2019/190004
Publication restriction:	The names of the appellant and some of the witnesses have been anonymised to avoid breach of s 15A(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW).
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2019] NSWDC 242 Date of Decision: 24 May 2019 Before: Gibson DCJ File Number(s): 2017/170506