SW v MK (No. 5) - [2019] NSWDC 242

District Court

New South Wales

Medium Neutral Citation: SW v MK (No. 5) [2019] NSWDC 242
Hearing dates: 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)
Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B, 5B, 5C, 5D, 5G, 5S, 15C, 17A, 51, 52, 53 and 54 and Parts 1A and 7
Civil Procedure Act 2005 (NSW), ss 56 – 62
Crimes Act 1900 (NSW), ss 35, 59, 61, 64, 94, 97, 98 99, 117, 192D, 192E, 344A
Evidence Act 1995 (NSW), s 140
Motor Accidents Compensation Act 1999 (NSW)
Passenger Transport Regulation 2007 (NSW), clause 163(2)
Cases Cited: Abdallah v Newton (1998) 28 MVR 364
Alat v Franklins Pty Ltd (2012) 15 DCLR (NSW) 203
Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176
ASIC v Rich (2005) 213 ALR 338
Asim v Penrose & Anor [2010] NSWCA 366
Cockburn v Jacobson [2017] ACTSC 380
Cusack v Stayt [2000] NSWCA 244
Dean v Phung [2012] NSWCA 223
Goode v Angland [2017] NSWCA 311
Imbree v McNeilly; McNeilly v Imbree (2008) 236 CLR 510; [2008] HCA 40
Jones v Dunkel (1959) 101 CLR 298
King v Collins [2007] NSWCA 122
Lim v Cho [2018] NSWCA 145
LVMH Watch & Jewellery Australia Pty Limited v Michael Lassanah & Ors [2011] NSWCA 370
McGlen-McLeod v Galloway [2012] NSWCA 368
Miller v Miller [2011] HCA 9; 242 CLR 446
New South Wales v Lepore [2003] HCA 4
Nguyen v Tran [2018] NSWCA 215
Nielson v Willing [2001] WADC 15
Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116
QBE v Orcher; Bowcliff v Orcher [2013] NSWCA 478
R v Henry (1999) 46 NSWLR 346
Ruddock v Taylor (2003) 58 NSWLR 269
Sahade v Bischoff [2015] NSWCA 418
Sangha v Baxter [2007] NSWCA 264
Sangha v Baxter [2009] NSWCA 78
Schultz v McCormack [2015] NSWCA 330
State of New South Wales v Moss (2000) 54 NSWLR 536
The Nominal Defendant v Cordin [2017] NSWCA 6
Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB)
Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320
Wallace v Kam [2012] NSWCA 82
Category: Principal judgment
Parties: Plaintiff: SW
Defendant: MK
Representation:
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

File Number(s): 2017/170506
Publication restriction: None

Judgment

The plaintiff brings proceedings for damages for injuries she sustained while in the course of exiting the front passenger seat of a moving Premier Cabs taxi driven by the defendant. The circumstances leading to her exiting the taxi are the principal issue for determination.
The plaintiff has been admitted to the Lifetime Care and Support Scheme as a permanent participant and the compensation recoverable in these proceedings is confined to non-economic loss and pre- and post- trial earning capacity.
The relevant legislation is the Motor Accidents Compensation Act 1999 (NSW) (“the MACA”), as well as Div 1-4 and 8 of Part 1A, ss 15C and 17A and Part 7 of the Civil Liability Act 2002 (NSW) (“the Civil Liability Act”).

An overview of the facts

The day of the accident, 28 November 2015, was the plaintiff’s 15th birthday, she having been born on 28 November 2000. She met with three friends who were about the same age, who are referred to in this judgment as “TC”, “SD” and “TJ”. SD made a telephone call to Premier Cabs to book a taxi to travel from their location, Startop Place, Ambarvale, to the gym area at Park Central, close to the intersection of Parkside Crescent and Parc Gueill Drive.
When the taxi driven by the defendant arrived, the plaintiff sat in the front seat next to the defendant, while her three friends got into the back seat. SD was sitting in the middle, TJ was seated behind the defendant and TC was seated behind the plaintiff. Although it was a warm, dry night shortly before the commencement of summer, all four young women were wearing hoodie style jumpers and, in addition, hats or caps. The plaintiff was wearing a peaked black cap.
While the precise destination of the taxi was a subject of controversy, it is not in dispute that the taxi travelled towards Campbelltown from the pickup place, and that the plaintiff was giving directions to the driver along the way. When the taxi was travelling along Parkside Crescent, the plaintiff indicated with her left arm; the plaintiff’s case is that the driver was told to stop but drove forward approximately 450 metres (T 122). The defendant continued to drive along Parkside Crescent away from the car park and then turned into Regents Street, where he stopped (T 122).
Before the vehicle came to a stop, the passengers began undoing their seatbelts. The three rear passengers then got out. In the course of exiting, SD is seen, on the CCTV, to lean forward from the rear seat where she touches or scratches the defendant on the neck.
The defendant’s submissions are that, at about this time, the plaintiff produced a knife and demanded money. The plaintiff denies this. The other occupants in the taxi gave differing versions which are set out in more detail below, but essentially SD and TJ admitted there was an attempt to rob the taxi driver, although TJ denied that there was a knife (T 534).
While the taxi was stopped and the passenger door open, with the plaintiff having undone her seatbelt, the defendant’s right hand can be seen, on the taxi CCTV footage, on the plaintiff’s right upper arm and there appears to be a struggle as she goes out the open door (Exhibit C images 1913 – 1933). Between images 1929 and 1933 the taxi speed increased from 19 to 22.6 km/hr.
At image 1937 of Exhibit C, which is about 1 second after the plaintiff is seen in the process of leaving the taxi, the defendant can be seen to be alone in the taxi, which at that stage was travelling at about 27.9 kph. The taxi crossed to the wrong side of the road and mounted the kerb, where it struck a small electric box. The plaintiff, who was out of the taxi at this time, was found on the footpath, also on the wrong side of the road. The other three taxi occupants attempted to drag the plaintiff from the place where she was lying but, when they could not do so, they left the scene.
As a result of the loud noise created by the accident, a number of local residents went to the assistance of the plaintiff within a few minutes, as well as calling the police, although the plaintiff asked that no police be called (T 272). The police arrived at the scene very quickly. Consistent with the defendant’s allegation of a knife being used, a kitchen knife fitting this description was located by the police at the scene of the accident (Exhibit 6). The evidence of the plaintiff’s witness SD concerning how the knife came to be there, namely that she saw TJ take a knife from the plaintiff’s hand and throw it away (T 499) was not challenged.
The plaintiff’s mother, who lived nearby, came to the scene shortly afterwards and, according to the witnesses at the scene, said to the plaintiff “That’s what you get for trying to be gangsters”.
The plaintiff was conveyed to hospital by ambulance, and her very serious injuries are described in greater detail in the section of this judgment on quantum.
A knife was found near the bushes at the scene. The police went to the homes of the three fellow passengers, in the circumstances set out in more detail below, and conducted a record of interview with the defendant in the course of which he described the plaintiff as threatening him with a knife while seated in the taxi, and demanding money.
The plaintiff discussed the events of the night in question with her solicitor and other persons on 22 December 2015. In the course of the plaintiff’s discussion with this solicitor, the plaintiff said, among other things, that she had brought a kitchen knife with her into the taxi, although she gave another explanation for doing so. The contents of this conversation were recorded by a social worker, Ms Sidharta, who was present throughout. Ms Sidharta was called by the defendant and the accuracy of her notes (Exhibit 13) was not challenged (T 517).
The plaintiff and the three young women with her in the taxi gave evidence and were cross-examined. The plaintiff relied upon the CCTV camera evidence from the taxi which, it was submitted, supported the plaintiff’s evidence that she had been pushed from the taxi and had not used a knife to attempt to rob the taxi driver.

The hearing

The plaintiff brings these proceedings with a tutor, her mother, but her mother was removed as tutor on the final day of the hearing of the evidence (30 November 2018), as the plaintiff had attained her majority (T 642).
The hearing took 11 days, with the result that the proceedings had to be stood over part-heard for submissions. This was not the fault of the parties, but due to a number of factors, such as the refusal of one witness, SD, to attend for cross-examination in circumstances where the parties sought a warrant for her arrest, and the need to recall the plaintiff and two other witnesses after SD had given evidence.
The defendant called a number of the witnesses present on the night, such as neighbours and police officers, as well as Ms Sidharta, but did not give evidence himself, in circumstances where the plaintiff asks me to draw a Jones v Dunkel inference (Jones v Dunkel (1959) 101 CLR 298).

The plaintiff’s evidence

The plaintiff, a paraplegic, was cross-examined over several days. By reason of the severity of her injuries, I had to be careful about her welfare and to ensure that she was comfortable at all times (see for example T 559 – 565). I thank the parties’ legal representatives for their vigilance and assistance to the court in this regard.
The plaintiff told the court that she lived with her mother and brother and that she had been in Year 9 at high school at the time of the accident. School had been difficult for her, as she was bullied throughout her earlier years and felt alone most of the time (T 108). She was, however, “a pretty good student” (T 108), although she started to miss school in Year 9. She was, however, good at sport.
At the time of the accident, the plaintiff had been considering whether to transfer to TAFE after completion of Year 10 to complete her schooling. She had little prior work experience apart from sweeping the floor in a hairdressing salon when she was aged 13, but she had decided she wanted to enter the army when she was 18 as her brother was already in the army. She had made an application to work at McDonald’s shortly before the accident but had not received a reply.
Several weeks before the accident, the plaintiff had been admitted to Campbelltown Hospital in a depressed state. She was released the next day. She explained that she was upset “due to bullying and just stress from everything around me” (T 113).
The plaintiff explained how she spent the day prior to the accident with her friends, which included a visit to Campbelltown Mall. She went home and later smoked about three or four cones of marijuana with her friends (T 117). They decided to go to a place known as “Park Central”. She met with the other three young women at Startop Place for this purpose (T 118). She did not recall who rang for a taxi and said that when she got into the taxi she was wearing headphones (T 120). She told the court she wanted the taxi to drop her near the carpark:

“Q. When you got near the car park or at the car park, did you do anything?
A. I indicated for him to pull over in the car park.
Q. And how did you do that?
A. I pointed and I said, "Pull over here".” (T 121)

The defendant kept driving towards the end of the street and then turned upwards. She described what happened next as follows:

“Q. How did you feel about that?
A. I wasn't very concerned, but it - I was a bit weirded out by it, 'cause I - I didn't know if he heard me though.
Q. What happened?
A. I took off my seat belt and opened the car - the taxi door.
Q. What was the taxi doing about moving when you--
A. It was still. He stopped the taxi.
Q. And then you took off your seat belt?
A. Yes, and then I--
Q. And what happened?
A. I tried to exit the taxi and then he grabbed me with his left hand on this arm, on my right arm.
Q. On your right arm?
A. Yes.
Q. What was the situation at that time with the door of the taxi?
A. The door was open.
Q. And what did you do?
A. I was trying to get him off me and I - we were - there was just a struggle.
Q. What happened next?
A. He threw me out of the taxi.
Q. How did he do that?
A. He pushed me out the door.
Q. When he pushed you out the door, was the taxi moving or stationary?
A. The taxi was moving.
Q. So, when you initially opened the door--
A. It was still.
Q. It was still. And then, was it still still when he grabbed your arm or had it started to move?
A. I, I don't think he accelerated until after he grabbed my arm.
Q. When you were pushed out of the taxi, do you know what happened to you?
A. I - yes, I remember seeing the road and then feeling a lot of pressure on my back and then looking up and seeing a street light.
Q. When you saw the street light, are you able to remember where you were in relation to the street?
A. No, I was very confused. I was trying to stand up but I, I couldn't move at all.” (T 122-123)

The plaintiff denied that she had a kitchen knife, or that she used it, or that she made any attempt to rob the taxi driver:

“Q. Now, at any time during the course of that journey did you have a kitchen knife in your possession?
A. No.
Q. At any time during that journey did you hold a kitchen knife to the taxi driver's throat?
A. No.
Q. Or hold a kitchen knife to the taxi driver's left temple?
A. No.” (T 123)

The plaintiff agreed she had no money (I note one of the other passengers gave evidence she intended to pay after she got out), but said she did not intend to demand money from the defendant:

“Q. Did you have any money on you?
A. A few coins.
Q. Did you have any paper money?
A. No.
Q. At any time during the journey in that taxi, did you demand money from the taxi driver?
A. No.
Q. In particular, when the taxi stopped in Regents Street, did you demand any money from the taxi driver?
A. No.
Q. Or threaten him with a knife?
A. No.” (T 123)

In cross-examination, the plaintiff was asked about how she came to be in another taxi, in the same street, only a month beforehand, where the taxi driver was robbed and bashed while she sat in the cab:

“Q. You were present in a taxi when the driver of the taxi was bashed and robbed, weren't you?
A. Yes, I was.
Q. And that bashing of the driver and the robbery occurred immediately after you had entered that taxi, didn't it?
A. Yes, it did.
Q. That event, you would agree, occurred, only a month before your accident?
A. Yes, around about.
Q. And it occurred, you would agree, with you seated in the front passenger seat, exactly as you were on the night of your accident?
A. Yes.
Q. It occurred, I want to put it to you, outside Number 2 Regents Street where the cab was standing in a stationary position in that street; isn’t that right?
A. The car was facing in the opposite direction.
Q. It was in the same street?
A. Yes, at the bottom of the street.
Q. Outside the same building where the cab stopped on the night of your accident?
A. Yes, it would have been.”

The plaintiff was asked questions about the boys who committed the robbery, including whether she knew them, which she denied (T 143):

“Q. Where were the men that you’ve referred to when you got into the cab? Very nearby, weren’t they?
A. I didn’t see them.
Q. They were certainly not very far away, were they, because they were there so quickly after you got into the cab; correct?
A. Yeah.
Q. You were aware of the driver being bashed, weren’t you? You saw it?
A. Well, I was - it happened very quickly.
Q. Did you see the driver being bashed?
A. I, I saw him get hit once or twice.
Q. Did you see anything of him producing money to those who were bashing him?
A. No. I think they took it. I think they took everything that he had.
Q. That’s to the best of your recollection that they took everything?
A. Well, I wasn’t there when they took everything, I left.
Q. You left, I want to put to you, in the same direction as those who had assaulted the driver, did you not?
A. I don’t - I couldn’t say that that’s true.
Q. You don’t deny it though?
A. I couldn’t say that it’s true because I don’t know.” (T 144)

Mr Deakin QC put it to the plaintiff that she deliberately chose the same destination for the taxi on the night of the accident as the earlier assault because of its layout:

“Q. I put to you the reason you chose that destination was because it was conveniently located in a dead end street, firstly, do you agree with that?
A. It was located in a dead end street.
Q. So that the driver had no way of escaping without trying to turn his vehicle around; that’s correct?
A. I’m confused, I’m sorry.” (T 145)

Mr Deakin QC next put to the plaintiff that another advantage of this location was that there was a tunnel which provided easy foot access away from the scene of the robbery:

“Q. As well as being a dead end street, as I’ve put to you, it’s also a street which at the Parkside Crescent end of it has a walkway underneath a major road, isn’t there?
A. Yes, there’s a pathway of rocks that leads to a tunnel.” (T 145)
…
“Q. It provides access for anyone involved in a robbery on the corner of Regents Street and Parkside Crescent, doesn’t it?
A. I guess so.” (T 145 -146)

Mr Deakin QC was able to obtain agreement from the plaintiff that not only was it easy for her to get away from Regents Street on foot by this method, but that this path led to an area very close to her house and that the house of one of her friends, TJ (T 148). (This pathway is the “same direction” pathway referred to in the T 144 extract set out above).
The plaintiff was also asked about the circumstances in which she assaulted another girl and stole her phone (T 154). She was dealt with in the Children’s Court for this offence. Some of these issues had been raised with the plaintiff in her admission to the hospital prior to her accident, namely on 3 November 2015, and the plaintiff acknowledged that a drug and crime prevention programme had been scheduled to commence on 17 November 2015 (T 155).
The plaintiff’s written submissions describe this line of questioning as being an attempt to make out a case of tendency on the part of the plaintiff to rob taxi drivers (written submissions, paragraph 8.1), which is asserted to be impermissible. The purpose of this was to establish the plaintiff did have knowledge of how a taxi robbery had occurred, and of the useful features of the site chosen for that robbery, as the site chosen by the plaintiff as the drop-off site was the same. I note that the police tendency notice tendered in the Children’s Court (which is adopted here) was not challenged in that court.
In addition, other evidence supportive of this conclusion was admitted to by the plaintiff during cross-examination. First, TJ was with her on the night of the previous robbery as well (T 165). Second, both wore clothes at the previous robbery which were similar to the night of the accident (T 167-168). Third, TJ was also present on another occasion when the plaintiff assaulted a young girl and took her phone (T 168). Fourth, although the plaintiff initially told the court when she first gave evidence that she had not known the boys who committed the taxi robbery, TJ admitted she did know them, as did the plaintiff:

“Q. You had some of them - some vision of them to be able to say, as you’ve helpfully said, about two years older?
A. Yes.
Q. You deny that you knew them or do you agree that you did know them?
A. I did know them.
Q. Who were they?
A. Friends of friends.” (T 556)

TJ went on to say that these boys were not only known to her but to the plaintiff, and this portion of her evidence was put to the plaintiff when she was recalled:

“[Evidence of TJ as read to the plaintiff]
“Q. What are those names?
A. [The plaintiff] and me, T[redacted].
Q. They were friends of all three of you; correct?
A. Both of us, yes, and there was three of them.
Q. But they were friends of all three of you?
A. No, I knew friends that were friends with.
Q. Who were the friends that you knew that they were friends with?
A. Ikeam, I K E A M, and I don’t know the rest.”
Deakin: Mr Ikeam’s name was spelt out. She was asked whether that was a surname and she said, “No.” Having read all that to you do you know an individual by the name of Ikeam, I K E A M?
A. I know an Ikeam.” (T 557)

The plaintiff admitted that Ikeam was a boy at her school, and that she had also seen his friends (i.e. the friends at the taxi robbery a month earlier) at this school (T 558).
TJ’s admissions about an attempted robbery were also put to the plaintiff but she denied any knowledge of this (T 558 – 9). The plaintiff similarly denied the account of the attempted robbery given by SD in her evidence:

“[Evidence of SD read to the plaintiff]
“Q. What had been discussed between you and your girlfriends about what was going to happen to the taxi and its driver on this night?
A. Yes.
Q. What had been discussed?
A. We just discussed that we were going to like rob the taxi.
Q. That’s why you got into the taxi with [the plaintiff] in the front seat?
A. Yes.
Q. And that’s what happened, you tried to rob the taxi, didn’t you?
A. Yeah, we tried to.”
Deakin: Just taking that all one step at a time. You heard what I read that S[redacted] said, “We just discussed that we were going to like rob the taxi.” That was correct, wasn’t it?
A. No.
Q. And that that’s what happened, wasn’t it, that you in the company of your girlfriends tried to rob the taxi, didn’t you?
A. No.
Q. It was only when the driver resisted your use of the knife that the struggle started. Isn’t that right?
A. No.
Q. It was following the struggle that you came to come out of the front door of the vehicle; do you agree with that?
A. Did you—
Q. I’ll put it again. There was a struggle between you and the driver, wasn’t there?
A. Yes.
Q. He tried to grab your hand?
A. He did grab my hand.
Q. He tried to grab the hand that had the knife in it, didn’t he?
A. No, there was no knife.
Q. Before that struggle started you demanded money from him, didn’t you?
A. No. “ (T 563)

She also denied the description given by SD of the knife being taken so that it could be thrown away:

Q. At 498 of the transcript, I want you to listen to these questions and answers that were given by SD in evidence yesterday in answer to Mr McIlwaine’s questions.
“[Evidence of SD read]
Q. So, what did you do?
A. I went to her mum’s house.
Q. And do you know what T[redacted] did? Did you see what she did?
A. Yeah.
Q. What did she--” And the question wasn’t finished, but the answer was: “She threw away the knife for [the plaintiff].
Q. Where did [the plaintiff] have the knife that she threw away?
A. I think on her lap, maybe, I didn’t see.
Q. I’m sorry?
A. I didn’t see, like, where it was, but I seen her take it from [the plaintiff].”
Deakin: That evidence, you’d agree, is correct, isn’t it?
A. No, it’s false.” (T 570)

The plaintiff was also asked about her admissions about there being a knife when she spoke to her solicitor (in the presence of the social worker Ms Sidharta, who took notes for hospital purposes), as her evidence in this court was that there was no knife at all. She agreed that she told her solicitor that she had a knife with her when she entered the taxi (T 188), and that when the taxi stopped she produced the knife to the driver (T 188):

“Q. Firstly, you agree that at that meeting you did say that you had a knife?
A. Yes, I did.
Q. You agree that you said that you produced the knife to the driver?
A. I could have, I don’t remember that part.
Q. I put to you that both of those matters, namely, that you had a knife and that you produced the knife to the driver in fact happened?
A. That’s false.
Q. Why did you tell Mr Goudkamp that you had a knife when you got into the taxi if it was false?
A. Well, when I was - at that time I was actually on drugs and that’s not really an excuse to lie to a lawyer, but all I was hearing from everybody around me was that I robbed a taxi and that’s what I believe. I didn’t know the truth. I didn’t know anything else and I was just really taking the blame for my friends, so if they did plan anything or whatever I would be the one.
Q. You’ve told her Honour in clear terms that you did not have a knife?
A. I did not have a knife.” (T 189)

This acknowledgement of lying to her solicitor is an important issue as to the plaintiff’s credit.
The plaintiff repeated that she did not have a knife:

“Q. I want to put it to you again just so there’s no doubt about it that you did have a knife when you entered the taxi?
A. I did not have a knife.
Q. That you produced the knife in a threatening way to the driver?
A. That’s not true.
Q. Why would you have told Mr Goudkamp something about you having a knife if, in fact, it wasn’t the case?
A. Because I didn’t know what was really going on and I believed that someone in our group of friends is going to be charged and around the area that I live you don’t really get lawyers like Tom so I just took the blame for it.” (T 190)

Mr Deakin QC asked:

“Q. You were aware that the driver alleged you had a knife, weren’t you?
A. I was - he was screaming it when I was laying on the pavement.
Q. You remember the fact that whilst you were lying on the pavement this driver was screaming that you had a knife?
A. Not only that but that I stabbed him as well.
Q. Tell us what you recall of the exact words that you overheard from the driver whilst you were lying on the pavement?
A. He said, “Help me, help me, she stabbed me, she stabbed me.”
Q. I put to you that he did - I apologise.
A. And he also said, “She had a knife” or something like that or “She robbed me,” something like that.
Q. He said it more than once, didn’t he?
A. He repeated it.
Q. This was immediately after the car had come to a stop and you were lying on the pavement?
A. It was when I was - after I’d gained consciousness.
Q. You know that a knife was found at the scene not very far from where you were; that’s correct, isn’t it?
A. Yes. Yes, I’m aware.” (T 191)

The plaintiff went on to explain:

“Q. You do not dispute that at that time you were saying that you had a knife?
A. Yes, but it wasn’t true.
Q. That you were saying that you produced the knife to the driver?
A. Yeah, I could have, yeah.” (T 192)

The plaintiff was taken through the rest of the statements recorded to have been made to her solicitor about what occurred on the night in question. This included her reference to a “kitchen knife”, although the plaintiff said she thought she had referred to “a small coloured knife or something along the lines of that” (T 196). Her explanation for this was “I was taking the blame. I didn't know what had gone on” (T 196). She was aware that there had been a news story that four people had robbed a taxi. She did not know what had happened so she just said that she did it (T 197).
The plaintiff was also asked about her apparel and her claim to have had been listing to music on a headphone, as opposed to changing the radio channel in the taxi (T 199-200). This was her explanation for not remembering much of the conversation (T 201). She claims she did not speak to the driver (T 201) beyond saying “Campbelltown” when she got into the taxi. She agreed that the driver may not have heard her say to stop at the destination, but said he would have seen her put her hand up (T 202). She said she just assumed that the taxi driver would “stop at some point” (T 205), as this is the explanation for not having done anything when he continued to drive. The plaintiff denied that as soon as she showed the knife to the driver there was a struggle (T 230).
The plaintiff was asked about the circumstances in which she came out of the taxi and about her statement (at T 122) that after she opened the car door, the defendant grabbed her, “I was trying to get him off me and I - we were - there was just a struggle”. She agreed at T 230, “I agree…that there was a struggle” and admitted at T 228 that “a struggle arose”.
Although she continued to assert that he pushed her out, this is a significant admission. It should be remembered that the plaintiff was a powerfully built young woman, six feet in height, who had both her hands free, while the defendant had one hand on the steering wheel and the disadvantage of a sudden and surprise attack. This corroborates what the defendant says, in that he says he was “pushing her not to come to me” (Exhibit E. Q 277), as counsel for the defendant point out in their submissions in reply (at paragraph 51).
The plaintiff denied that the other girls had attempted to move her when she was unable to run away with them:

“Q. What happened was that when your friends had run away down towards your home they came back when they realised that you were not with them, didn’t they?
A. No.
Q. They came back and, as you’ve told her Honour, they tried to get you to run with them, didn’t they?
A. You’re mixing up my words.
Q. After they had tried to get you to run with them they physically tried to lift you and carry you away from the scene of this accident, didn’t they?
A. No. You’re mixing my words up.
Q. Are you sure about that?
A. I mean I remember what I remember and you’re mixing my words up.
Q. I’m not mixing your words up.
A. You are, that’s what you’re doing. I told you that I tried to get up and you’re saying that I tried to get up and run away from him because I was doing something but that’s not what happened.
Q. I’m asking you a different question. I’m asking you to agree to the simple proposition that after your girlfriends came back to where you were lying on the footpath--
A. They didn’t come back. They saw me laying on the floor and they tried to come up to me and they were wondering why I wasn’t getting up.
Q. Yes.
A. They didn’t know what happened to me.
Q. They tried to carry you away from the scene of the accident, didn’t you?
A. No.
Q. They tried to drag you away from where you were lying on the footpath, didn’t they?
A. No. T[redacted] was pulling my jumper and she was saying, “Get up. Get up” and I couldn’t. I told her, “I can’t get up.” And then she said, “Why? What’s wrong with you?” And then she said - just kept yelling and then I told them, “Go. Get.”
Q. I want to take you back and they ran away, didn’t they, leaving you on your own?
A. Because I told them to go and get my mum.” (T 235-236)

However, the plaintiff acknowledged that two of them had mobile phones (T 236) as did the plaintiff herself. She acknowledged that at least TJ knew her mother’s mobile phone number.
The plaintiff was asked about what her mother said when she came on the scene:

“Q. What I want to put to you is that the first thing your mother said when she arrived at the scene was "That's what you get for trying to be gangsters"?
A. Are you serious?
Q. I am very serious. Do you recall her saying that or not?
A. She didn't say that.
Q. I put it to you that she said it clearly to you at the scene?
A. No, she didn't.
Q. Do you recall your mother also saying over a phone that she was using, to someone on the phone, "You're a good sister, you are, you left your sister here on the side of the road"?
A. I don't think she said that.
Q. Do you remember her saying that?
A. I highly doubt she said that.” (T 238)

The plaintiff’s evidence is that no attempt was made at robbery, there was no knife and the defendant ignored her instructions to stop and continued driving. The other girls got out of the car and without warning the defendant accelerated the taxi while pushing the plaintiff out the open door of the taxi. The plaintiff made up the story about having a knife because she was aware the taxi driver was claiming there was one at the scene, so she took the blame because she did not know what was going on; she believed one of her friends was going to get charged and would not have a chance to defend themselves (T 190 – 1, T 196 – 7).
However, this was not what the other passengers in the car said. As is set out in more detail below, SD said they had intended to rob the taxi and that there had been a knife, which TJ threw into the bushes. TJ acknowledged there was an intention to rob the taxi but denied that there was a knife. TC repeatedly failed to remember most of the events. All admitted they had run from the scene and left the plaintiff alone lying in the street, although their reasons for this varied. The evidence of the witnesses at the scene made an important contribution in terms of describing events such as finding the knife and the state the defendant was in.

The evidence of the other passengers

Each of the other three girls in the taxi (TC, SD and TJ) was called to give evidence. Rather than set out their evidence individually, I set out the evidence they gave on issues such as the purpose of the trip and the phone call to the taxi company; the clothing they were wearing; their evidence in relation to what is shown on the CCTV footage; their conduct at the scene; the knife and other events subsequent to the accident, such as the threats made to SD concerning her reluctance to testify at the Children’s Court. Their evidence on these topics is then compared to the plaintiff’s evidence.
SD failed to attend court in response to a subpoena. On the application senior counsel for the plaintiff, an arrest warrant was issued and she came before the court to give evidence. She told the court:

“Q. So why didn't you feel confident?
A. I didn't want to go because I didn't want [the plaintiff] to get in any trouble and I knew if I went I was going to tell the truth, so I knew I wouldn't be much help to the case 'cause I didn't want to lie but like when I say the truth I meant I knew that I was going to tell them what we planned, like that we were going to actually rob the taxi.” (T 505)

What was the purpose of the trip?

The other girls gave the following explanation of the purpose of the trip.
SD’s evidence was that the girls planned to rob the taxi:

“Q. You can't recall that. Can I just take you back a bit. Before you got into this cab on the night of [the plaintiff]'s accident, you had talked with your girlfriends about what was going to happen, hadn't you?
A. Yes.
Q. And what had been discussed between - I'll put it to you nominally. What had been discussed between you and your girlfriends about what was going to happen to the taxi and its driver on this night?
A. Yes.
Q. What had been discussed?
A. We just discussed that we were going to like rob the taxi.
Q. And that was why you got into the taxi with [the plaintiff] in the front seat?
A. Yes.
Q. And that's what happened, you tried to rob the taxi, didn't you?
A. Yeah, we tried to.” (T 499)

Immediately after the plaintiff asked for money from the defendant, there was that struggle:

“Q. Before the struggle started you heard [the plaintiff] demand money from the driver, didn't you?
A. Yes.
Q. Are you sure you didn't have a glimpse of the knife in the car?
A. Yes.
Q. It was immediately after the demand for money was made by [the plaintiff] that the struggle started?
A. Yes.” (T 500)

She saw the knife on the plaintiff’s lap afterwards (T 498) and took it and saw TJ take the knife and throw it away (T 498).
TJ said that they attempted to rob the taxi driver (T 388-389). In the course of Facebook exchanges, she acknowledged she had written the entry “we all did it”. TJ was asked about this admission at T 536:

“Q. Do you remember, just take your mind back to it, I was asking you some questions about what you said in the Facebook entries, particularly the words “we all did it”. Now, do you remember me asking you some questions about that?
A. Yes.
Q. At page 388, I want to remind you about the questions that were asked about what happened on this night, particularly flowing from the words “because we all did it”. The questions, starting on line 36 on page 388, the question I asked you was this:
“Q. ‘Because we all did it’ is what you said and ‘did it’ is the attempted arm robbery, isn’t it?
A. Yes, but there was no knife pulled out on him.”

Do you remember giving that answer?
A. Yes.
Q. What you were saying in answer to that question, I put to you, was there was a knife but it wasn’t pulled out, that’s what you were saying, wasn’t it?
A. Yes.”

She also said:

“Q. What you were all in together with and involved in was an attempt to rob the taxi driver, wasn't it?
A. To run.
Q. To run after attempting to rob the taxi driver, correct?
A. We never did.
Q. Sorry?
A. Yeah. We never did but yes.” (T 537-538)

TJ’s statement as to how these events occurred was particularly revealing:

“A. Sorry, I've seen it happen before and we sort of got caught up in the moment of talking about it, following other people's footsteps that, you know--
Q. I'm sorry, I don't quite understand what you're saying?
A. That I said what I said.
Q. You all got caught up in an attempted armed robbery that went wrong; isn't that right?
A. Yeah, that's true, although there was no knife, no attempt to hand it over or anything like that. It didn't even get that far so--
Q. What you are saying to her Honour was - and you were waving your right arm around gesturing, saying it didn't--
A. That's what I've been accused of.
Q. --involve waving the knife around, correct?
A. That's what I've been accused of.
Q. Yes, and you're quite clear in your recollection that there was no waving of the knife around; that's what you--
A. No knife at all.
Q. But you don't dispute, do you, from those very answers that I earlier read to you that there could have been a knife but it wasn't waved around?
A. Well, when I went to [the plaintiff] after it happened and I asked her did she have anything she couldn't give it to me. She couldn’t find it. I had, didn't, I ran with nothing. I made sure - I told S[redacted] to stay there with [the plaintiff] and S[redacted] was the one that didn't. She ran after me to get help when [the plaintiff]'s telling me to get help. I was only the one that was supposed to run and get help, not S[redacted]. S[redacted] was supposed to stay with her but okay.
Q. Can we come back to the knife, please?
A. There wasn't any.
Q. You are clear in your recollection that you didn't see one being waved around, correct?
A. None waved around, none with [the plaintiff], none in the taxi, no--
Q. But you agreed--
A. --asking--
MCILWAINE: Please--
WITNESS: --him for money--
HER HONOUR: Don't interrupt.
WITNESS: --nothing.
DEAKIN: I'm sorry.
HER HONOUR
Q. I'm sorry, what was that last bit?
A. We weren't asking him for money or anything.
DEAKIN
Q. You heard [the plaintiff] demand money from him before the struggle started, didn't you?
A. No.
Q. And before the struggle started there was a knife visible in the front of the taxi, wasn't there?
A. No.
Q. Why did you say "possibly" to the suggestion of there being a knife?
A. I was confused.
Q. What did you mean by that earlier answer you gave about following other people's footsteps?
A. Meaning that seen it on television before, seen it, seen other people do it.
Q. You see--
A. Not seen other people but heard of it before.” (T 538-539)

TC gave very generalised evidence:

“Q. Do you agree that you did discuss what you were going to do that night? A. What do you mean?
Q. You did talk about what you were going to do that night, didn’t you, with your girlfriends?
A. I don’t understand.
Q. You knew what everyone was going to be doing together, didn’t you?
A. We were going to hang out together.

Q. You knew where you were going?
A. Yes.
Q. What you were going to do?
A. Yeah, we knew.” (T 424)

The call was made using TC’s phone and the booking was made in the name “Sarah”. TC was asked who made the call:

“Q. Do you remember who was talking to the taxi company to bring the taxi? A. S[redacted] I think.
Q. You think it was S[redacted]?
A. I’m not sure.
Q. Whoever it was who used your phone to call the taxi company you were there with her when she made the call; correct?
A. Correct.
Q. There was only the four of your there, wasn’t there?
A. Correct.
Q. There was no one with the name Sarah with you, was there?
A. No.” (T 422)

However, even TC appeared to acknowledge she heard the plaintiff ask the defendant for money:

“Q. You see in that [CCTV] image the driver reaching across and, as I’ve put to you, struggling with [the plaintiff]?
A. Yes.
Q. You say you didn’t see it?
A. I don’t remember.
Q. You can’t recall seeing it?
A. Yeah, I don’t recall.
Q. You must have heard a conversation if you were still in the taxi at that time, mustn’t you?
A. Yes.
Q. You don’t dispute or you don’t disagree with the fact that [the plaintiff] asked for money, didn’t she?
A. No.
HER HONOUR: Just wait a moment. Q. You said “No” you don’t dispute; that’s right?
A. (No verbal reply)
MCILWAINE: That’s a double negative to start with.
HER HONOUR: I know it was and I checked it and she’s confirmed that’s what she said.
DEAKIN: And she nodded her head
HER HONOUR: She’d nodded her head. I’m very concerned to ensure that we do everything that’s fair to help this witness. She’s confirmed that so that’s it.
DEAKIN Q. You heard the driver say, did you not, “Don’t hurt me, I’ll give the money.” Words to that effect, did you not?
A. No. No.” (T442 lines 18 – 36)

Although TC appears to contradict herself I am satisfied that she did make the admission and sought to retract it only when she realised the damaging nature of the admission she had just made.
TC was an unsatisfactory witness. She repeatedly said she did not remember, and her poor recollection of events extended even to the instructions as to where the plaintiff told the taxi driver to drive to:

“Q. What did [the plaintiff] say to the taxi driver about where you were going?
A. I don’t remember.
Q. She gave some directions to the driver, didn’t she?
A. I don’t remember.” (T 426).

This is hard to accept given the role TC played in relation to the cab being booked. TC was cross-examined as to the pick-up address given when the taxi was booked. She denied the taxi was called to 1 Startop Place, Ambarvale (T 423). She denied that the booking was made under the name “Sarah”. As is set out below, the occupant of 1 Startop Place provided a statement confirming that no booking had been made by her or any family member and that there was no “Sarah” at that address. These are serious credit issues for TC.
However, part of the reason for TC’s difficulty may have been the threats made to her and to SD by TJ if the right evidence was not given in the Children’s Court:

“Q. One of the things that was said to you about this accident was a conversation in which you and perhaps others were involved with T[redacted], isn’t that right?
A. I don’t remember.
Q. You would remember if [redacted] had threatened you, wouldn’t you?
A. Yes.
Q. It would be something you couldn’t possibly forget if T[redacted] had threatened you, do you agree with that?
A. Yes.
Q. T[redacted] threatened you and S[redacted] about what was going to be said about this accident, didn’t she?
A. She didn’t threaten me.
Q. She did or did not?
A. She did not threaten me.
Q. I want to put to you that T[redacted] has given evidence about saying to you and S[redacted] that, “If you fuck it up, I’m bashing youse.” What do you say to that?
A. I don’t remember that.
Q. You told her Honour you would remember it if you’d been threatened.
A. Yeah, but I didn’t get threatened.
Q. If you’d been told, “If you fuck it up, I’m bashing you,” you’d remember that?
A. No.
Q. Did it happen or not?
A. No.
Q. I want to put it to you that in her sworn evidence in this Court, T[redacted] has said that—
HER HONOUR: Transcript page?
DEAKIN: Page 396, your Honour, line 35 to 45.
Q. I want to put it to you that she sent an SMS message to S[redacted] that said these words, “You have prove to me you fucked this up. I told every single one of youse you fuck it up, I’m bashing youse.” Firstly, would you assume that was in a message sent by T[redacted] to S[redacted]?
DEAKIN: Facebook, I apologise, your Honour. I said SMS, I apologise, it’s a Facebook message.
Q. Were you ever made aware that T[redacted] had sent a Facebook message to S[redacted] saying those words?
A. No.
Q. Did either of them ever tell you about that?
A. Sorry?
Q. Did either of them ever tell you that that message had been sent?
A. No.
Q. You were still at school with them, were you not?
A. Yes.
Q. I want to put to you that that exchange on Facebook occurred the day before [the plaintiff]’s case was going to be heard before the magistrate, do you not remember this?
A. No.
Q. What I want to put to you is that after referring to that Facebook message T[redacted] was asked about her words, "I told every single one of youse," she was asked to whom was she referring there and I put it to her that it was T[redacted] and S[redacted] and T[redacted] said, "Yeah," she was referring to you and S[redacted]. Do you agree with what T[redacted] said as I've read it to you?
A. No.
Q. There was a reference to [the plaintiff] and the question was this, "So this is only yourself, T[redacted] and S[redacted] that you've told that to, and she says, "Yeah, myself." She was asked, "You say to them that if they fuck it up you're bashing them, right?" and she said, "Yeah." If T[redacted] said that you wouldn't disagree with her, would you? If T[redacted] had said that you would not disagree with her?
A. I would.” (T 431 – 432)

There can be no doubt these Facebook messages were sent. SD acknowledged them, as did TJ. I am satisfied that TC’s memory problems are at least in part due to these threats.

The clothing the girls were wearing

According to the meteorological reports the only rain that evening occurred after the accident and the weather was around 20 degrees. Nevertheless, all four girls were wearing hoodies over their heads as well as caps. TC denied it only rained after the accident (T 425).
TC was asked:

“Q. Do you remember any conversations about what you were going to wear? A. No.
Q. This was summertime, wasn’t it?
A. Yeah.
Q. It was quite warm, wasn’t it?
A. It was raining.
Q. When do you recall there being any rain on this night?
A. It was raining that night for a while.” (T 424)

The CCTV footage, poor in quality though it is, demonstrates the degree to which the plaintiff and other passengers had covered their bodies and much of their faces.

The CCTV footage

The relevant extracts from the CCTV footage, as identified by the plaintiff in written submissions, are as follows:

Image 1229 (the first image): This depicts the defendant alone in the taxi, with the time at 21.52.13 (9.52 pm) with the meter off, travelling at 18.8 km/hr, at Startop Place, Ambervale.

Image 1237: This depicts four passengers entering the taxi which is stationary in Startop Place, with the meter on (at the time of 21.52.33).

Image 1269: This shows the defendant and the four passengers sitting in the taxi as it proceeds along Boythorn Ave, Ambarvale at a speed of 56.1 km/hr with the doors all closed and the meter on.

The next series of images show the taxi following the route shown in Exhibit C onto Parkside Crescent at Campbelltown, passing the hospital, and continuing on Parkside Crescent past the T-intersection with Centennial Drive.

Image 1697: The taxi is past the T-intersection with Hampstead Road, approaching the T-intersection with Parc Gueill Drive on the right and the car park on the left. This is just beyond the intersection shown in Exhibit A1 which the plaintiff said was the intended destination (T 121).

Image 1697: The CCTV shows that the plaintiff is looking to the left with her left arm horizontal; her evidence was that she pointed to indicate where she wanted the taxi to pull up.

Image 1869: he Defendant did not pull over and stop until he turned onto Regents Street (as the plaintiff said at T 202); this image shows the taxi still moving after the taxi turns onto Regents Street.

Image 1877: This image shows the taxi has stopped on Regents Street with the motor still on but all the doors closed.

Image 1913: This image shows the taxi stopped, the doors open, the rear passengers exiting the taxi and the defendant with his hand on the Plaintiff’s right arm as she turns towards the open car door.

Image 1917: This shows the plaintiff still attempting to get out of the taxi while the defendant still has his hand on her; the taxi is now moving off, with the speed captured at 3.5 km/hr.

The following images are asserted to show the defendant assaulting the plaintiff whilst the taxi is accelerating up Regents Street:

Image 1929: This image shows the plaintiff and defendant in some kind of struggle as the taxi is moving (the speed has now increased to 19 km/hr).

Image 1933: The plaintiff is further towards the door and still engaged in some kind of struggle with the defendant. The taxi has accelerated to 22.6 km/hr on Regents Street and is now near Renmin Lane.

Image 1937: The plaintiff can no longer be seen. The taxi has accelerated to 27.9 km/hr with the defendant the only occupant.

Image 1969: The taxi has stopped with the defendant the only occupant. This appears to be the point at which the taxi, having crossed to the wrong side of the road during these events, has now stopped by reason of collision.

The plaintiff submits:

The CCTV footage is “clear and unambiguous” (written submissions, paragraph 3.9).

What is shown in the “assault” part of the CCTV is the defendant grabbing the plaintiff when the taxi stopped in Regents Street (image 1913), and then, after accelerating up Regents Street (image 1929) and reaching 22.6 km/hr, deliberately pushing her out of the taxi (image 1933).

These images demonstrate the unreliability (indeed, falsity) of the defendant’s evidence in the Children’s Court, where he testified that a knife was held above the left side of his temple just higher than his temple (Exhibit N). The plaintiff submits that if this had happened, it would have been captured and recorded by the CCTV. There is no knife to be seen in any part of the CCTV.

Similarly, the defendant told police that a knife was held to his throat (Exhibit 16, p 10) and money demanded (evidence of Detective Senior Constable Feher, T 585 – 586). If this had happened, it would have been captured and recorded by the CCTV but it is not (I note, however, that the CCTV footage does capture the action of SD in leaning forward and touching or scratching the defendant, which caused him a minor wound, which she acknowledged (T 231, 506)).

Detective Senior Constable Beltrami’s conclusions about the CCTV were put to Mr Mavroidis in cross-examination and Mr Mavroidis said that these did not sound correct. The qualifications of Detective Senior Constable Beltrami are unknown, as is his method of calculation, and his opinions should not be accepted.

The “objective and impartial insight” provided by the CCTV” deprives what the defendant told the police and the Children’s Court of any credibility and those statements made by the defendant in those documents “cannot be accepted nor acted upon to make any finding” (written submissions, paragraph 3.13).

At no time on any of the images was the duress button pressed.

The defendant submits:

The CCTV footage shows that when the taxi came to a stop in Regents Street there was a demand for money made by the plaintiff as the other three girls got out of the taxi without attempting to pay the driver.

The struggle was a struggle by the defendant trying to stop the plaintiff from using the knife she had in her hand. The sequence is said to be 1885 (reach to meter), 1897 (plaintiff bent over, hand emerges), 1901 (hand seen), 1921 (what appears to be an object in the plaintiff’s hand.

The evidence of Mr Mavroidis was admitted only on the voir dire for the tender of the CCTV (T 48 – 49) and was admitted for no other purpose. While I note that evidence on the voir dire can become evidence in the trial (ASIC v Rich (2005) 213 ALR 338 at 345), Mr McIlwaine stated that Mr Mavroidis’s evidence went solely to the admissibility of the CCTV (T 48) and the questioning proceeded only on that basis.

There was some evidence of Detective Senior Constable Beltrami in relation to the footage, but the defendant invites me to form my own conclusions. The defendant does point to a number of defects, including the absence of video for the entire journey (the CCTV only commences at image 1228); only one camera operates at a time in a sequence (T 62); the images are not continuous but at one-second intervals; the passengers are only seen from the waist up; they are edited in that additional information about speed and the like are added; and the grainy black and white nature can readily be appreciated by comparing how the plaintiff’s hoodie looks on the CCTV when compared to the actual garment, which was tendered (submissions in reply, paragraph 29). I particularly note that the CCTV does not accurately indicate the view for the passengers in the back of the taxi (submissions in reply, paragraph 34).

As to the CCTV generally, the defendant’s principal submission is that the evidence of the witnesses as to there being a knife and a proposed robbery should be preferred, given the revolving “still” nature of the photographs and their very poor quality. In particular, the defendant relies on the evidence of SD, who said she saw the plaintiff give TJ a knife directly after the event, and this evidence, although denied by the plaintiff, was not the subject of cross-examination.

This requires analysis of the correct way to interpret such footage.

Use of CCTV footage

The correct approach to the use at trial of photographs and, more recently, CCTV footage, has been set out in a series of appellate decisions over the past two decades. This line of authority is helpfully summarised in Goode v Angland [2017] NSWCA 311 at [93] – [96] per Beazley P:

“[93] A matter that frequently arises in the use of photographs is that they can be deceptive, particularly in relation to perspective and distance. This was the subject of observation in Angel v Hawkesbury City Council (2008) Aust Torts Reports 81-955; [2008] NSWCA 130 where the Court (Beazley and Tobias JJA, Spigelman CJ, Giles and Campbell JJA agreeing) said, at [69]-[72], that photographic evidence could not trump the direct evidence of witnesses that compelled acceptance.
[94] I had cause to review the use of photographic evidence again in Yarrabee Coal Company Pty Ltd & Anor v Lujans (2009) Aust Torts Reports 82-024; [2009] NSWCA 85 at [20]-[27] and concluded, at [28]:
“… much will depend upon the photograph in question, the circumstances in which it was taken and what the evidence, if any, is in relation to the photograph. Thus, in Angel v Hawkesbury City Council [2008] NSWCA 130 the Court rejected that the photographs should have trumped the eyewitness evidence which, the Court held, was compelling: see at [69]-[70].”
[95] In Townsend v O’Donnell (2016) 78 MVR 283; [2016] NSWCA 288, there were photographs in evidence, taken after a motor accident, which depicted the place where the accident occurred and from which it was sought to estimate how long the respondent had had to take evasive action. Sackville AJA, with whom I and McColl JA agreed, said, at [52]:
“… great care must be taken in interpreting photographic evidence. This is particularly the case where there is no evidence as to the precise position of the camera when the photographs were taken and the photographs themselves are indistinct.” (citations omitted)

See also Warren v Gittoes [2009] NSWCA 24 at [54]-[55].
[96] In Herne Investments (NSW) Pty Limited v Don Watson Proprietary Limited [2016] NSWCA 72, which concerned a motor accident, the appellant contended that the primary judge had failed to give adequate weight to video footage taken from a camera in a vehicle travelling behind the vehicles involved in the accident. Sackville AJA, Ward JA and Garling J agreeing, said, at [42]:
“The authorities warn that care must be taken in relying on photographic evidence, bearing in mind that photographs are not always easy to interpret for forensic purposes. Most of these warnings have been given in relation to photographs taken after the relevant events have occurred. Photographs taken or videos filmed contemporaneously with the relevant events may provide cogent evidence that enables a court to resolve disputed factual issues. The probative value of the contemporaneous evidence of this kind will, however, depend on the nature and quality of the photograph or video evidence and the issues which need to be resolved.” (Citations omitted)
See also, again in the context of video evidence, Asim v Penrose & Anor [2010] NSWCA 366 at [57]; QBE v Orcher; Bowcliff v Orcher [2013] NSWCA 478.”

One of the problems with CCTV that is rarely found with photographs is that the quality of the vision is quite often poor. In Asim v Penrose & Anor [2010] NSWCA 366 at [17], Tobias JA, considering traffic CCTV, noted that “[i]t would be an understatement to say that the quality of the CCTV footage from all cameras was poor”, adding that the trial judge had had the same difficulty. The standard of the stills from the CCTV was worse; at [56] Tobias JA added that “[t]o say that the stills, like the CCTV footage, were of poor quality would be an understatement”, concluding:

“[57] It is well accepted that a judge of fact should be extremely cautious in interpreting photographic evidence (which would include CCTV footage) particularly in the absence of expert evidence: Angel v Hawkesbury City Council [2008] NSWCA 130 at [70] to [72]; Blacktown City Council v Hocking [2008] NSWCA 144 at [8] to [12], [167] to [170]; Warren v Gittoes [2009] NSWCA 24 at [54] to [55]; Yarrabee Coal Co Pty Ltd v Lujans [2009] NSWCA 85 at [20] to [28].
[58] Camera footage and photographs of poor quality are particularly suspect and ought to be interpreted with an enhanced degree of caution. This is particularly so where a judge has rejected an expert’s evidence with respect to those photographs. In the present case there is nothing to suggest that Mr Bailey was an expert in the interpretation of photographs; but then neither was his Honour or, for that matter, this Court.”

In QBE v Orcher; Bowcliff v Orcher [2013] NSWCA 478, Tobias JA repeated these earlier concerns. Once again, the inadequacies of the CCTV footage were a central issue and the first instance judge’s findings as to what these meant were set aside on appeal.
Another way in which CCTV is less reliable than photographs is that the footage often comes in the form of more than one camera angle. In Asim v Penrose & Anor there were 7 cameras; in this case there are 4, but recording consecutively. In addition, footage from one or more of the cameras may be missing, or the date/time shown on the CCTV wrong. However, the presence of both of these defects was not a problem for the defendants in LVMH Watch & Jewellery Australia Pty Limited v Michael Lassanah & Ors [2011] NSWCA 370, where police formed an opinion about the plaintiffs’ activities in a shop based on seeing a few minutes of such CCTV footage (although it should be noted that none of the above problems or authorities were referred to in the judgment).
These concerns were, however, more recently repeated and amplified in relation to the inadequacies of CCTV footage in Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176, where Sackville AJA noted at [54]-[56]:

“[54] While the CCTV footage is undoubtedly useful, it is important to bear in mind the limitations of such evidence. Courts have repeatedly warned about the dangers of relying on photographic evidence, particularly in relation to perspective and distance. The warnings include the “sage advice” of Lord Reid that lawyers are not experts in reading or construing photographs and thus should generally not adopt their own interpretation of the photographic evidence on contested issues.

[55] Similar warnings have been given in relation to CCTV footage. In QBE v Orcher, for example, Tobias AJA said that the weight to be attached to CCTV footage:
“is very much depend[e]nt on the quality and clarity of the images they depict as well as the context in which they were taken”.

His Honour observed that CCTV footage can be quite misleading and was in that case because the footage was “very dynamic”.
[56] The warnings are apposite to the present case. There was no expert evidence to assist in interpreting the CCTV footage. Nor was there evidence explaining the dimensions of the area near where the respondent fell or of the distance between the accident site and the shops or structures in the vicinity. Because of the parallax effect, it is very difficult for the uninstructed viewer to obtain a clear understanding of the precise location of the fall. Among other things, this makes it difficult to determine how close the cleaners, particularly Mr Nguyen, came to the accident site. It also makes it difficult to determine how many patrons walked over or very close to the accident site during the period between 10.35 and 10.44.29, although it would seem that many did.”

A still from the CCTV footage in that case is helpfully inserted into that judgment. There could be no greater contrast than the clarity of the colour image from the continuous CCTV footage of the scene with the dark and grainy stills tendered in these proceedings.
The plaintiff submits (submissions in reply, paragraphs 1 – 5) that the CCTV clearly portrays the defendant pushing the plaintiff out of the vehicle, as opposed to a struggle between them, or the defendant trying to push away the plaintiff, a knife or both, and that I should make the finding that the defendant pushed the plaintiff out of the taxi and that there was no knife. To make such findings on such poor quality CCTV, particularly where the plaintiff’s hands cannot be seen at all in images 1889, 1893, 1897, 1901 and 1921, would be to disregard those warnings and I do not propose to do so.
Taking all of the above into account, I consider that the problems with the clarity and interpretation of these images is such that, where there is a conflict between the oral testimony of the witnesses and the CCTV, I should give greater weight to that oral evidence than I would otherwise have done if clearer and more reliable CCTV were available. That includes treating the plaintiff’s evidence on this topic with care. For example, it is important that one of the witnesses at the scene (Mr Coffin) told police that the plaintiff said the defendant “pushed me out”, but it is also important that she said to her solicitor (“believes that she was pushed or fell out of the vehicle”, Exhibit 18).
In particular, I propose to give great weight to objective contemporaneous evidence, such as the finding of the knife at the scene, and to the admissions of two of the passengers in relation to the intention of the four girls to rob the taxi driver.

Documentary evidence in relation to the defendant

Although the defendant did not give evidence, his cross-examination from the Children’s Court (as set out in Exhibit N) and in the police record of interview (Exhibit E) were tendered by the plaintiff. The defendant refers in a number of answers to his state of mind and appears to be in a state of distress.
The COPS report prepared by Detective Senior Constable Feher (who was called to give evidence) was tendered by the defendant at the invitation of the plaintiff: T 578. This summarises the evidence obtained on the night. In this report (Exhibit 16), she notes that the plaintiff produced a knife “toward” the defendant and money demanded from the defendant and that he threw the money on the console, following which there was a demand for further money and the defendant’s wallet. At this stage, the defendant grabbed the hand that was holding the knife and “it appears there has been some struggle between the victim and [the plaintiff]”. The plaintiff is described as having “exited the taxi through the front passenger door” where it was “not clear exactly how this occurred”. The defendant was not in control of the taxi, which mounted the kerb and travelled along the footpath for a short distance before hitting a small electricity box. The defendant then activated the emergency alarm.
Detective Senior Constable Feher then describes how the other young persons had “run from the scene”, the recovery of the knife, the arrival of local residents and of the plaintiff’s mother and the identification of the other passengers and their arrest. She also states that the $80 cash proceeds from the robbery “has not been recovered” although in cross-examination she conceded that there did not appear to have been any search at the scene (T 587).
One topic of particular relevance in relation to the reliability of the defendant’s testimony as to the events on the night in question is the additional notation made by Detective Senior Constable Feher on 29 December 2015, long after the night in question and presumably in relation to the subsequent proceedings. Detective Senior Constable Feher notes that “the victim is still very shaken by the incident” (page 1 of Exhibit 16).
All of the police documentation is indicative of the police treating this as a serious incident (it was referred to the Robbery and Serious Crime Squad and classified as “extreme”, according to Exhibit 16). The integrity of the police discovery of the knife at the scene and the quick identification of the other passengers who had “run from the scene” (Exhibit 16) are not challenged. Detective Senior Constable Feher was cross-examined about the absence of DNA or fingerprints on the knife, but these were not matters within her knowledge.

Other witnesses at the scene

As is noted in the Police Full Facts (Exhibit 18) at p 2, a number of people came out from their homes on hearing the collision and screams in order to assist both the plaintiff and the taxi driver. Police and ambulance were called in the circumstances set out in more detail below, and they attended rapidly. The Police Full Facts note that “a large silver kitchen knife was located at a short distance” from the plaintiff (Police Full Facts, p 2).
The evidence of these independent witnesses at the scene is of significant value in determining what occurred.

Ms Edgar and her fiancé

Amy Lyndal Edgar, who lived in a unit on the corner of the street, was getting ready to go to bed when she heard a bang that sounded like “a heavy impact” (Police Statement, 2 December 2015, Exhibit 18, p 304). She looked out the bedroom window and saw three persons whom she thought were 14 to 15 years old, one of whom she recognised as a girl she had seen hanging around in the area before. She went on to say:

“7. All three were looking up the street. Up Regents Street and they were qhite [sic] panicked. They looked like they were deciding to stay or go. The one in the grey hoodie had her hands up to her head. They weren’t emotional, they wre [sic] hanging around looking at one another like ‘what are we going to do’.
8. They were there about 3 minutes and it looked like they were working out what to do and then they ran down towards the underpass, back toward Ambarvale way.”

Ms Edgar’s fiancée, Shannon Vamvoukuis, decided to go to the scene of the accident. She telephoned him and he told her to come. She described what she saw as follows:

“10. I walked up Regents street, past our block, into the next and I saw people out of their houses, a girl laying head down next to a tree. She was on the path and she had two people helping her. The girl had one shoe off and one shoe half off. The girl was wearing grey tracksuit pants and I think a white t-shirt. When I got up to where the girl was, the Police and Ambulance hadn’t arrived, but they got there in under 5 minutes. They got there quick.
11. I saw a taxi was on the footpath on an angle, about 10 metres from where the girl was laying. I saw the taxi driver and he came to talk to me and Shannon. He was saying something about ‘they had a knife they took my money>’ [sic]. His English was not very goo [sic] and he was hard to understand. The taxi driver was very shaken. When we spoke to the taxi driver, we were standing in from [sic] of where the taxi was.
12. I went to talk to the taxi driver because he looked shaken and about 3 weeks ago we had an incident on the corner of Parkside and Regents Street where a taxi driver was bashed and robbed. He was about 65 and had been hit in the head. I was concerned for the taxi driver that something similar may have happened to him. When I went outside the 3 people had gone from the end of the street to the underpass.”

The reference to the incident three weeks beforehand is a reference to the earlier taxi robbery at which both the plaintiff and TJ were present.
Ms Edgar’s fiancée made similar observations about what he saw, but of a much more general nature (Exhibit 18, p 312-313).

Mr Dzmitranok

Mr Kanstantsin Dzmitranok was in a unit on the third floor of a building on the street with his balcony door opened. He heard a “boom” and went out on the balcony, where he saw the following:

“4. I got up and went out on the balcony and the first which I saw was three probably girls running down the hill towards next to my van to the corner of Regents Street and Parkside Crescent. There is a path with a metal gate across. They run there and they stopped for a second and they were shouting something but I couldn’t understand what they were saying. When they got to the corner they stopped and turned around and looked back up Regents Street and then two of them run back up Regents Street away Parkside Crescent.
5. That is when I looked up the street as well and I saw the girl laying on the ground between the road and the footpath on the small bit of grass. The girls they come to her and they tried to pick up her, to pull her up. The girl laying on the ground doesn’t move, she was talking to them but I couldn’t understand it because they were shouting and talking too fast for me. Next to her was a van, it was like white and it was parked on the angle facing up the hill on Regent [sic] Street. The girl and the van were on the same side of the street as my house but they were past Renmin Lane. The tree is only small and it doesn’t cover everything looking from my house.
6. I started to see other people coming out from up the street and I heard people saying call the police and help and then I saw the other two girls run away down that corner back past the metal gate and disappeared in the bush. More people come [sic]. I went back inside the unit to get dressed and then I came back in like two minutes and there was a lot of people there and police and Ambulance.
7. I don’t know the girls but I remember one of them was wearing a light blue sun hat. I’m not sure what the others were wearing. From when I first heard the noise outside until when the police come [sic] was up to five minutes it wasn’t very long, they came pretty fast. From where I was standing to where the girl was laying was about 50 metres.”

Mr Coffin

Adrian Graeme Coffin was sitting in his lounge room in Regents Street when he heard a “loud, sudden crunch noise” and felt a slight vibration which seem to come from out of the front of the house. He described the following:

“7. It was about a minute when I first went to the door and saw the taxi driver to when I went outside and saw the young girl. In this time I called Kendyl to cal [sic] the Police because something was going on. When I went outside and saw the girl, I yelled to call the Ambulance because somebody had been hit by the car. I said this because it was my assumption seeing the maxi taxi stopped the way it was and the girl on the footpath.
8. When I put my head out the door and saw the girl on the footpath I saw a lady with long blonde curly hair walking toward the girl. That was when I went in to tell Kendyl to call the Police and Ambulance. When I went back inside and Kendyl got the phone, I did hear yelling coming from up the street, but I don’t know what was being said.
9. Kendyl handed me the phone and I spoke with the Operator. I went back to the front door and went outside. I saw other people coming either outside or walking toward my house, so I felt safe to go out. I had the phone outside and I relayed to the Operator what I could see.
10. There was a lady and a man near the girl who were talking to her, keeping her calm. I don’t know what they were saying, but I remember the girl saying, “I can’t breather” [sic] a couple of times. I remember looking at her when she said this and her ribs were moving, so I could see she was still breathing. The girl said, “I think my legs are broken” or “my legs are broken”. I don’t know when she said it, but I did hear her say “He pushed me out.””

He described hearing the defendant call out “call the police, call an ambulance” and also “they produced knife, they produced knife” (Exhibit 18, pp 289-290). Mr Coffin relayed this to the operator as he called for emergency assistance.

Ms Viravong and her family

Sumana Viravong was having dinner with other family members when she heard a bang which sounded like a collision and a male voice yelling. She went outside with her sister and brother, about one house down from the site of the accident. The taxi driver was shouting for help. She dialled 000 and asked for an ambulance. She described the plaintiff as being helped by two people, one of whom was her brother, and makes no reference to the teenage girls being at the site.
Another member of the Viravong family, Sriphamom Viravong, described hearing a man yelling out “call the police, call the police” and saw the plaintiff lying on the footpath near the tree outside his neighbour’s house. He described what he then heard as follows:

“4. I heard the girl on the ground saying, “No police, no police, just call the ambulance.” Other people had come out from their houses and were saying call the police and ambulance and don’t touch the girl until the ambulance arrives. People were asking the taxi driver what happened and I heard him say they had a knife.
5. So when I heard the taxi driver call out for someone to call the police he was also calling out, “Help, help”. The girl said not to call the police after she heard all of us calling out for someone to call the police and ambulance. She said only Ambulance.”

Ms Mason

Ms Deanne Maree Mason (Exhibit 18, p 320) did not come to the scene of the accident but her evidence is relevant to the telephone call made for the taxi. She is the occupant of 1 Startop Place for the past 32 years (as at 9 December 2015), the residence given by the person “Sarah” who called for the taxi. Ms Mason said in her statement that neither she nor her family placed a call for a taxi, nor was there anyone called Sarah living in that house.

Statements of the ambulance officers who attended the scene

As to Mr Dzmitranok’s evidence concerning the attempts made by the plaintiff’s friends to pull her up, I note that this is consistent with the evidence of Karen Venter (Exhibit 18, p 283-284). In particular, the following occurred:

“I said: Who were you with, were you here by yourself?
He [sic]: No I was with friends but they left me here because I could not walk. They tried to drag me down the road but I was too heavy, so I told them to leave me here and go.” (Exhibit 18, p 284)

Ms Venter also described the plaintiff’s mother coming to the scene and saying over the phone to an unknown person “you’re a good sister you are, you left your sister here on the side of the road” (Exhibit 18, p 285).
Another ambulance officer, Dean Godfrey, described speaking to the taxi driver and hearing the plaintiff’s mother talking as follows:

“8. I walked up to the taxi driver, the Taxi driver was anxious and distressed from the incident. I approached the Taxi driver and said, “What’s happened here mate?”. The Taxi Driver replied, “They have all attacked me and all jumped out”. At this point the Taxi driver was unable to inform me of how the patient received her injuries.
9. I have then looked down and seen that additional paramedics were on scene and when [sic] and briefed them on the situation.
10. I then assisted Ali SMITH and Karen SMITH in treating WAQABACA. From my memory I went and got the spinal board and assisted in the extrication (removal) of the patient from the scene into transporting Ambulance vehicle. At this point WAQABACA had calmed down, due to the effects of pain medication. The patient’s mother arrived on scene and I recall the mother saying openly “that’s what you get for trying to be gangster’s [sic]”.”

Statements of the police officers who attended the scene

Evidence set out in the statements by police officers is consistent with these observations. Senior Constable Beltrami said (Exhibit 18, p 194-195):

“3. About 10.00pm on Saturday 28 November 2015, I was with Detective FEHER when I heard a Police radio broadcast about a robbery of a taxi in Regent [sic] Street Campbelltown. About 10.15pm Detective FEHER and I arrived at Regent [sic] Street.
4. We entered Regent [sic] Street from Santana Road and I saw police and ambulance vehicles. I saw a Toyota Tarago Taxi with Premiere Taxi insignia. I saw paramedics treating a female on the footpath out the front of number 6. Detective FEHER spoke to Senior Constable KINGSTON. Senior Constable KINGSTON handed a NSW Drivers License in the name of Md Abdus Salter KHAJA to Detective FEHER who handed it to me. Senior Constable KINGSTON indicated a male standing near a police vehicle to be the driver of the taxi.
5. I approached KHAJA and spoke to him. KHAJA stated he received a job to pick up from Ambarvale and drop off in Campbelltown. He showed me the terminal in the taxi that had this information. The terminal read:
Pickup: 1 Startop Place Ambarvale
Destination: Campbelltown
Time: Pickup 2152
Time: Order 2146
Name: Sarah
Job#: 40163514

6. KHAJA said, “I went to the address and they didn’t come from the house but from the side. There were two females and two males. One female sat next to me and the other was behind me. The two males had hoodies on their heads and they were in the back next to the other female”. KHAJA further stated the girl at the front had a silver kitchen knife and indicated with his hands the knife to be about 30 centimetres long.”

Detective Senior Constable Beltrami also made some observations about the CCTV footage.
The knife in question was located by Senior Constable Kingston. He drew it to the attention of Senior Constable Kaczmarek, who describes this as follows:

“10. It was at this time that Senior Constable KINGSTON drew my attention to the hedge again but about 3 or 4 metres down from where the Young Person had been paying [sic]. At the base of the hedge was a large silver/chrome style kitchen knife. The knife had both a silver/chrome style handle and blade about 25cm in length. A witches [sic] hat was placed over the top of the knife to protect it from any contamination.”

This was photographed and placed into an exhibit bag, as it was starting to rain.
This evidence from the witnesses attending the scene paints the following picture:

The three passengers in the vehicle with the plaintiff tried to pick her up or pull her up and, when other people came out, ran away down past the metal gate and disappeared into the bush (evidence of Mr Dzmitranok, Exhibit 18 at p 317). This is confirmed by the plaintiff’s statement to Karen Venter, the ambulance officer, that her friends had tried to drag her down the road but had left her there because she could not walk (Exhibit 18, p 284). This is also confirmed by Ms Edgar (Exhibit 18, p 305) and Mr Dzmitranok (Exhibit 18, p 318). I also note that Constable Kingston in his statement of 4 December 2015 said that he spoke to a couple standing on the opposite side of the road who said “they saw three people running away” (Exhibit 18, p 174).

Sections 5B, 5C and 5D Civil Liability Act 2002 (NSW)

Reference was made during closing submissions to ss 5B and 5C Civil Liability Act 2002 (NSW) although these are not pleaded. Section 5B was explained in Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320 at [105]-[107] and in Schultz v McCormack [2015] NSWCA 330 at [86] in terms of identifying the risk. Mr Deakin QC’s point was that when the plaintiff got into the taxi, the duty of care operated during the journey, but either changed or stopped altogether when he arrived at his destination and the passengers alighted.
Section 5D Civil Liability Act 2002 (NSW), which is pleaded, provides:

“5D General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm ("factual causation"), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability").

(2) In determining in an exceptional case, in accordance with established principles2, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”

The taxi had stopped in Regents Street (although the engine was still running) and three of the four passengers were in the process of getting out. But for the plaintiff demanding money from the defendant and pulling out the knife, Mr Deakin QC submits, the plaintiff would have got out of the taxi while it was still stationary (written submissions, paragraph 79).
The plaintiff’s answer to this submission is that these events never happened, but if I find that this was in fact the case, what is the plaintiff’s position? Mr McIlwaine SC submitted that the defendant should have realised that the plaintiff had changed her mind about robbing the defendant and was getting out of the cab; he should have stopped the cab in order for her to do so. Leaving aside the impossibilities of such a scenario in a matter of seconds (and I note the remarks of both the first instance and appeal judges in Lim v Cho), I do not accept that the plaintiff ever deviated from her intention to rob the defendant, even after he started to accelerate the car, because she did not give that evidence. Her evidence is to the contrary, namely that she was pushed from the cab.
Applying the “but for” test as laid down in s 5D(1)(a), I cannot be satisfied that the plaintiff has discharged the onus of proving that any negligence in the defendant moving his car from park to drive, accelerating the car and pushing the plaintiff away was a necessary part of the harm. The plaintiff’s commission of these offences was the dominant and immediate cause; the defendant was responding to a threat of serious harm.
Further, even if there was a breach of duty, the plaintiff has failed to establish that it was appropriate for the defendant’s duty to the plaintiff to extend to the resultant harm. Section 5D(1)(b) is the relevant provision. In Wallace v Kam [2012] NSWCA 82 at [26], the Court of Appeal said:

“One must, however, recognise the importance of the phrase "because of the revelation of the ... risk or danger". The Court in Canterbury v Spence was emphasising the relationship between disclosure and manifestation of the risk. The further relevant fact here is that the primary judge found, with some clarity, that this risk, although undisclosed, was acceptable to Mr Wallace in that it, as a risk distinct from the catastrophic paraplegia, would not have led Mr Wallace to decline the operation. It is the value judgment to be made consequential on that finding that is critical. That value judgment, in the circumstances here where the risks are distinct, in my view, is one that is indistinguishable from that to be made consequent upon disclosure and acceptance of the risk that came home.”

I also note the observations of Ruddock v Taylor (2003) 58 NSWLR 269.
As I have noted elsewhere, there are strong public policy considerations operating in relation not only to conduct which may in other non-criminal circumstances amount to breach, but also in a criminal context. The facts of this case echo the observations of Spigelman CJ in R v Henry at [162]:

“It appears from the cases that come to this court, including the present proceedings, that there is a category of case which is sufficiently common for purposes of determining a guideline:
i) young Offender with no or little criminal history;
ii) weapon like a knife capable of killing or inflicting serious injury;
iii) limited degree of planning;
iv) limited if any actual violence but a real threat thereof;
v) victim in a vulnerable position, such as a shopkeeper or taxi driver;
vi) small amount of money taken;
vii) a plea of guilty, the significance of which is limited by a strong Crown case.”

The principles in R v Henry represent a guideline judgment which is referred to repeatedly in sentencing. Looking at the checklist above, matters (i) to (vi) all reflect crimes or attempted crimes with parameters such as the present.
I am satisfied that this is one of those occasions where policy considerations should operate to deny liability for harm which in other circumstances would have been held to have been caused by the defendant’s breach of duty.

Breach of duty and s 54 Civil Liability Act

Mr Deakin QC puts the “agony of the moment” argument (paragraph 6A of the defence) and s 54 arguments into his submissions on breach of duty (written submissions, paragraphs 69 – 78). Although there is a degree of circularity in the way the amended defence is constructed, I have followed this argument accordingly.
Mr Deakin QC refers to Cockburn v Jacobson [2017] ACTSC 380 where a taxi driver was attacked from behind, with his seatbelt pulled so tightly he lost control of the vehicle, which McWilliam AsJ was satisfied amounted to “agony of the moment”. Although illegal enterprise was not raised, this judgment is of assistance when determining the underlying issue of whether any duty of care has been breached by the driver in the agony of the moment that arose. Similarly, in Abdallah v Newton (1998) 28 MVR 364, where a driver was frightened by a person wielding karate sticks, Stein JA noted (at p. 366) that while the driver may have taken greater care when driving off if he had not felt threatened, the situation was not of his making and there was accordingly no breach.
However, for these exceptions to apply, there has to be a “serious offence”. Section 54 provides:

54 Criminals not to be awarded damages
(1) A court is not to award damages in respect of liability to which this Part applies if the court is satisfied that:
(a) the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and
(b) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage.

(2) This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned constitutes an offence (whether or not a serious offence). Note : Sections 52 and 53 can apply to prevent or limit recovery of damages even though the defendant's conduct constitutes an offence.
(3) A "serious offence" is an offence punishable by imprisonment for 6 months or more.
(4) This section does not affect the operation of the Felons (Civil Proceedings) Act 1981.
(5) This section operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned.

Some of the conduct particularised in the amended defence (such as smoking cannabis beforehand (paragraph 7C) and evading a fare (paragraph 7D) clearly would not apply. In Sangha v Baxter [2009] NSWCA 78 Basten JA noted:

“[159] Finally, the defendant relied upon s 54 of the Civil Liability Act which precludes a court awarding damages in respect of liability if satisfied that the injury occurred “at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence”, which conduct materially contributed to the injury or risk of injury. However, the defence is not available if the conduct of the defendant constituted an offence: s 54(2). Again, the application of these provisions may give rise to complex legal issues.”

There are two essential ingredients which need to be satisfied before the court can be precluded from awarding any damages, namely:

The court must be satisfied that injury to a person occurred at the time of or following conduct of the person that, on the balance of probabilities constitutes a serious offence [s 54(1)(a)]; and

That the person's conduct materially contributed to the injury or risk of injury [s 54(1)(b)].

In Sangha v Baxter [2007] NSWCA 264 at 84, Young CJ in Eq said, in relation to the word “following”:

“84 It seems to me that it cannot be that every action after someone has committed a serious offence can be caught by the words “following … “. Just where the cord must be cut is unclear. It may be that if one were to set down a test one would do it in similar words to those of Lord Normand in the Privy Council in Teper v The Queen [1952] AC 480, 487 (a res gestae case) that the injury must occur “if not absolutely contemporaneous with the” crime then “at least so clearly associated with it, in time, place and circumstances” that it can be considered part of the criminal conduct.”

As is noted in more detail below, as well as in my findings of fact, the conduct of the plaintiff in these proceedings falls directly within the description of armed robbery set out in the guideline judgment R v Henry. The conduct of the plaintiff in attempting to rob the defendant at knifepoint clearly satisfies the “serious offence” requirement.
I next set out my findings in relation to s 52 of the Civil Liability Act.

Section 52 Civil Liability Act 2002 (NSW)

Section 52 Civil Liability Act 2002 (NSW) as contained in Part 7 provides:

“52 No civil liability for acts in self-defence
(1) A person does not incur a liability to which this Part applies arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding:
(a) was unlawful, or
(b) would have been unlawful if the other person carrying out the conduct to which the person responds had not been suffering from a mental illness at the time of the conduct.

(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c) to protect property from unlawful taking, destruction, damage or interference, or
(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as he or she perceives them.
(3) This section does not apply if the person uses force that involves the intentional or reckless infliction of death only:
(a) to protect property, or
(b) to prevent criminal trespass or to remove a person committing criminal trespass.”

In Sahade v Bischoff [2015] NSWCA 418 at [62], the Court of Appeal sets out the three elements of the defence under s 52:

“[62] There are three elements of the defence under s 52 that are relevant to the present case:
(1) the conduct of the other person (Mr Sahade) must have been unlawful;
(2) the person (Mr Bischoff) must have believed the conduct was necessary to defend himself; and
(3) the conduct must have been a reasonable response in the circumstances.”

“Belief” is a subjective test. The plaintiff submits that the failure of the defendant to give evidence means that this is a difficult hurdle to climb.

Contributory negligence

The defendant submits that the contributory negligence finding should be assessed at between 90% - 100%. The plaintiff’s written submissions initially put contributory negligence at zero but in the course of oral submissions was prepared to increase this figure to around 20%.
First, any scenario involving an intention by a passenger to rob a taxi driver, whether it involves using a knife or not, warrants a very substantial finding of contributory negligence. In the present case, the taxi driver was confronted with a tall, muscular young woman looking much older than her years, with three companions just outside the vehicle, demanding money, would have been likely to try to flee from the scene.
Even if I accepted unreservedly that there was some kind of misunderstanding but that there was nevertheless a knife in the car and some odd behaviour by the back seat passengers which caused the taxi driver to fear he was being robbed, the percentage of contributory negligence would be substantial. The response of the defendant to try to push the plaintiff and drive away would have arisen wholly in response to conduct of the plaintiff which was well out of the ordinary.
If the first scenario is the correct one, the percentage for contributory negligence should be 100%. If it is the second, the percentage should be 90%.

Conclusions concerning liability

I note my findings in favour of the defendant on each of the grounds set out above and my findings, in the alternative, in relation to contributory negligence.
Before considering damages, I note my findings (also in the alternative) in relation to s 53 Civil Liability Act.

Section 53 Civil Liability Act

Section 53 Civil Liability Act 2002 (NSW) provides:

“53 Damages limitations apply even if self-defence not reasonable response
(1) If section 52 would operate to prevent a person incurring a liability to which this Part applies in respect of any conduct but for the fact that the conduct was not a reasonable response in the circumstances as he or she perceived them, a court is nevertheless not to award damages against the person in respect of the conduct unless the court is satisfied that:
(a) the circumstances of the case are exceptional, and
(b) in the circumstances of the case, a failure to award damages would be harsh and unjust.

(2) If the court determines to award damages on the basis of subsection (1), the following limitations apply to that award:
(a) Part 2 (with the exception of Division 3 of that Part) applies with respect to the award of damages despite section 3B(1)(a), and
(b) no damages may be awarded for non-economic loss.”

If I find the defendant’s response was not reasonable (s 53 of the Act), the plaintiff still bears the onus of satisfying s 53(1)(a) and s 53(1)(b), and for the denial of damages to be harsh and unjust.
The plaintiff is presently a T6 paraplegic. There is very recent medical evidence of a 25% risk that this spinal disability may ascend and the Plaintiff suffer further neurological damage due to the presence of a significant syrinx leading to syringomyelia. The defendant objected to the tender of this late evidence on the basis that it could not meet it in time. In practical terms, however, this issue had been raised in the medical evidence, albeit rather elliptically.
The plaintiff’s life will be one of extreme hardship and that alone may be sufficient to satisfy the burden of proof in s 53(1)(b) of the Act. The defendant draws to my attention that she is in the Lifetime Care and Support Scheme and that the hardship is mitigated by that factor.
It is impossible not to feel sympathy for the plaintiff, who has paid a terrible price at a very young age for her foolish conduct. I cannot consider the denial of damages to be anything other than harsh and unjust.

Damages

In the event that I have erred in my findings as to liability I make the following brief observations concerning damages.
The plaintiff’s very serious injuries have resulted in her becoming a permanent participant of lifetime care and support.

Non-economic loss

If I have erred in my findings as to liability and were to award non-economic loss, I am at liberty to award whatever sum is appropriate, subject to a statutory maximum which is currently $546,000.00. That is the amount the plaintiff seeks.
The defendant proposes the sum of $450,000.
The circumstances in which the plaintiff suffered such catastrophic injuries are tragic. She has lost not only the use of her limbs and sexual functioning but also bladder and bowel control. Any award of damages must be substantial, but not to the extent that these are at the very top of the range. Accordingly, the sum I would have awarded is the sum of $450,000 proposed by the defendant.

Past economic loss

The plaintiff turned 15 on the day of the accident and had never had paid employment. She told the court she had applied for part time work at McDonalds a few days before the accident.
The plaintiff planned to continue her schooling until year 12 (T 109), while applying for casual or part time work. She The makes a claim of $50.00 net per week for causal/ part time or and vacation work which she may have earned but for the accident: = 167 weeks (as at 13/2/2019) claimed at $50.00 net per week, namely $8,350.00 She also claims lost compulsory employer superannuation contribution at 11% = $7,800.00 x 11% = $918.50. Her total past economic loss is $9,268.50
The defendant proposes a cushion for past and future economic loss of $150,000 inclusive of superannuation. I do not accept that figure for the reasons set out in more detail below.
In practical terms the plaintiff’s school results suggest that finishing school was unlikely given her problems with attendance, discipline and schoolwork from more or less the time she became a teenager. The likelihood is that she would have struggled to get past her school certificate and would have worked in low-paying jobs such as waitressing or in fast food outlets.
The plaintiff also claims superannuation. Neither party addressed me as to whether earnings of $50 a week for a person under 18 attracts superannuation entitlements. A person is generally only eligible to receive superannuation from an employer if they earn $450 or more in a month and are aged 18 or older.
Doing the best I can with so little information, I would allow a cushion of $2,000 for past economic loss.

Future economic loss

Although future economic loss was initially approached on the basis that the plaintiff has lost the opportunity of entering the army like her brother, the plaintiff now seeks damages on the more realistic basis of average weekly earnings.
The plaintiff’s written submissions set out the figures claimed on the basis that if the plaintiff had not been injured, and worked until the pension qualification age, then from the beginning of 2019 i.e., 51 years at a 5% multiplier (980.6) equates to $1,134.40 x 980.6. There is an allowance of 15% for vicissitudes resulting in $945,534 loss of future wages. To this should be added a figure for lost compulsory employer superannuation contribution ($945,534 x 14% 46 = $132,375). The total future economic loss claimed is thus $1,077,909.

The plaintiff had significant school behavioural issues as well as mental health issues which had led to her being hospitalised on 3 November 2015 and recommended for a two-month admission. While I do not regard her drug use as being a significant issue in relation to future economic loss, in circumstances where I must do the best I can (State of New South Wales v Moss (2000) 54 NSWLR 536 at [87]), the reality is that the plaintiff faced an uncertain future in terms of regular or well-paid employment.
While the plaintiff’s figure is described in the defendant’s submissions (paragraph 79) as “fanciful”, the same may be said of the defendant’s submission of a combined figure of $150,000 for past and future economic loss. This is one of many actions for damages brought in this court where the sums put forward by both parties are well outside the range which is likely to be awarded, a practice which has been the subject of adverse comment by the List Judge: Alat v Franklins Pty Ltd (2012) 15 DCLR (NSW) 203 at [47]. Such submissions do not assist the court.
While the awarding of very large sums by way of cushions is a practice the wisdom of which has been doubted at appellate level, in the present circumstances I have so little to go on that a cushion is effectively all that I could award. The sum in that cushion should reflect the likelihood that she will work for at least half of her working life in jobs which are at the level of average weekly earnings. That represents a figure of about half of the sum proposed by the plaintiff and accordingly I would award future economic loss of $500,000.

Summary of damages

My alternative findings would be that the plaintiff would be entitled to damages as follows:

Non-economic loss of $450,000

Past economic loss of $2,000

Future economic loss of $500,000.

This total is, of course, subject to my findings concerning contributory negligence.

Orders

Judgment for the defendant.
Plaintiff pay defendant’s costs.
Liberty to apply in relation to costs.
Exhibits retained until further order.

**********

Decision last updated: 12 June 2019

Medium Neutral Citation:	SW v MK (No. 5) [2019] NSWDC 242
Hearing dates:	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)
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 3B, 5B, 5C, 5D, 5G, 5S, 15C, 17A, 51, 52, 53 and 54 and Parts 1A and 7 Civil Procedure Act 2005 (NSW), ss 56 – 62 Crimes Act 1900 (NSW), ss 35, 59, 61, 64, 94, 97, 98 99, 117, 192D, 192E, 344A Evidence Act 1995 (NSW), s 140 Motor Accidents Compensation Act 1999 (NSW) Passenger Transport Regulation 2007 (NSW), clause 163(2)
Cases Cited:	Abdallah v Newton (1998) 28 MVR 364 Alat v Franklins Pty Ltd (2012) 15 DCLR (NSW) 203 Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 ASIC v Rich (2005) 213 ALR 338 Asim v Penrose & Anor [2010] NSWCA 366 Cockburn v Jacobson [2017] ACTSC 380 Cusack v Stayt [2000] NSWCA 244 Dean v Phung [2012] NSWCA 223 Goode v Angland [2017] NSWCA 311 Imbree v McNeilly; McNeilly v Imbree (2008) 236 CLR 510; [2008] HCA 40 Jones v Dunkel (1959) 101 CLR 298 King v Collins [2007] NSWCA 122 Lim v Cho [2018] NSWCA 145 LVMH Watch & Jewellery Australia Pty Limited v Michael Lassanah & Ors [2011] NSWCA 370 McGlen-McLeod v Galloway [2012] NSWCA 368 Miller v Miller [2011] HCA 9; 242 CLR 446 New South Wales v Lepore [2003] HCA 4 Nguyen v Tran [2018] NSWCA 215 Nielson v Willing [2001] WADC 15 Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 QBE v Orcher; Bowcliff v Orcher [2013] NSWCA 478 R v Henry (1999) 46 NSWLR 346 Ruddock v Taylor (2003) 58 NSWLR 269 Sahade v Bischoff [2015] NSWCA 418 Sangha v Baxter [2007] NSWCA 264 Sangha v Baxter [2009] NSWCA 78 Schultz v McCormack [2015] NSWCA 330 State of New South Wales v Moss (2000) 54 NSWLR 536 The Nominal Defendant v Cordin [2017] NSWCA 6 Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320 Wallace v Kam [2012] NSWCA 82
Category:	Principal judgment
Parties:	Plaintiff: SW Defendant: MK
Representation:	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
File Number(s):	2017/170506
Publication restriction:	None