19, 20, 21, 22, 23, 26, 27, 28, 29 and 30 November 2018; 27 March and 16 April 2019
Date of orders:
24 May 2019
Decision date:
24 May 2019
Jurisdiction:
Civil
Before:
Gibson DCJ
Decision:
(1) Judgment for the defendant. (2) Plaintiff pay defendant’s costs. (3) Liberty to apply in relation to costs. (4) Exhibits retained until further order.
Catchwords:
TORT – personal injury – whether circumstances in which the plaintiff, a taxi passenger, suffered serious injury arose because she had produced a knife and threatened the defendant, the taxi driver – negligence and causation – illegal enterprise - ss 5B, 5C, 5D, 52, 53 and 54 Civil Liability Act 2002 (NSW)
Counsel: Plaintiff: Mr R S McIlwaine SC / Ms N Compton Defendant: Mr P Deakin QC / Mr A J Parker
Solicitors: Plaintiff: Stacks Goudkamp Defendant: McInnes Wilson
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.
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Details
AGLC
SW v MK (No. 5) [2019] NSWDC 242
Case
[2019] NSWDC 242
Decision Date
CaseChat Overview and Summary
In the matter of SW v MK, the plaintiff, a taxi passenger, sought compensation from the defendant, the taxi driver, for serious injuries she sustained during a taxi ride. The plaintiff alleged that the defendant was negligent in his driving and that this negligence caused her injuries. The defendant counter-claimed that the plaintiff’s injuries arose from her own conduct, specifically, that she produced a knife and threatened him, which led to a struggle and her injuries. The dispute was heard in the Supreme Court of New South Wales.
The primary legal issues the court needed to address were whether the defendant was negligent in his driving, and if his negligence contributed to the plaintiff's injuries. The court also had to determine whether the plaintiff’s own actions, specifically her threat with a knife, constituted an illegal enterprise under the Civil Liability Act 2002 (NSW). If so, the court had to consider whether the illegal enterprise was a contributing cause of the injuries, which could bar her from recovery under sections 5B, 5C, 5D, 52, 53, and 54 of the Act.
The court found that the plaintiff had produced a knife and threatened the defendant, which constituted an illegal enterprise. This illegal act was a significant contributing factor to the injuries she suffered. The court held that under the Civil Liability Act, the plaintiff’s illegal conduct was a cause of her injuries, and thus she could not recover damages for those injuries. The court found no negligence on the part of the defendant that contributed to the plaintiff's injuries.
The court ordered judgment in favour of the defendant, with the plaintiff to pay the defendant’s costs. The plaintiff was granted liberty to apply in relation to the costs. The exhibits were retained until further order.