SW v MK (No. 5)

Case [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

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Details
AGLC
SW v MK (No. 5) [2019] NSWDC 242
Case
[2019] NSWDC 242
Decision Date

CaseChat Overview and Summary

In the matter of SW v MK, the plaintiff, a taxi passenger, sought compensation from the defendant, the taxi driver, for serious injuries she sustained during a taxi ride. The plaintiff alleged that the defendant was negligent in his driving and that this negligence caused her injuries. The defendant counter-claimed that the plaintiff’s injuries arose from her own conduct, specifically, that she produced a knife and threatened him, which led to a struggle and her injuries. The dispute was heard in the Supreme Court of New South Wales.

The primary legal issues the court needed to address were whether the defendant was negligent in his driving, and if his negligence contributed to the plaintiff's injuries. The court also had to determine whether the plaintiff’s own actions, specifically her threat with a knife, constituted an illegal enterprise under the Civil Liability Act 2002 (NSW). If so, the court had to consider whether the illegal enterprise was a contributing cause of the injuries, which could bar her from recovery under sections 5B, 5C, 5D, 52, 53, and 54 of the Act.

The court found that the plaintiff had produced a knife and threatened the defendant, which constituted an illegal enterprise. This illegal act was a significant contributing factor to the injuries she suffered. The court held that under the Civil Liability Act, the plaintiff’s illegal conduct was a cause of her injuries, and thus she could not recover damages for those injuries. The court found no negligence on the part of the defendant that contributed to the plaintiff's injuries.

The court ordered judgment in favour of the defendant, with the plaintiff to pay the defendant’s costs. The plaintiff was granted liberty to apply in relation to the costs. The exhibits were retained until further order.

Orders

Orders of the court

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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