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
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
Category: Principal judgment Parties: SW (appellant)
Md Abdus Khaja (respondent)Representation: Counsel:
Solicitors:
R S McIlwaine SC; N D Compton (appellant)
P Deakin QC; A Parker (respondent)
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:
- 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…
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- AGLC
- SW v Khaja [2020] NSWCA 128
- Case
- [2020] NSWCA 128
- Decision Date
CaseChat Overview and Summary
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
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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
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