SW v Khaja

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.