Supreme Court of Queensland ‘slows down’ a joyrider’s attempt to argue withdrawal from a joint illegal enterprise with his accomplice driver – Alifaio Koge Captain (by his litigation guardian Hilda Gladys Sailor) v Willie Wosomo & Anor [2017] QSC 86

• When a plaintiff and defendant are engaged in illegal activity, the defendant does not owe a duty of care to the plaintiff where upholding such a duty is inconsistent with the statutory purpose of prohibiting the criminal activity.
• If the plaintiff unequivocally withdraws from a joint criminal activity before an accident occurs, the duty of care owed by the defendant survives.

The plaintiff, the defendant, and their two friends jointly stole a ute and took it for a joyride. The plaintiff was a front‑seat passenger who suffered catastrophic head injuries when the defendant driver lost control and crashed the vehicle into a light pole.

The occupants of the utility were all teenagers. Moments before the collision, some of the passengers, possibly including the plaintiff, had yelled at the defendant to slow down. The parties agreed that by reason of their involvement in a joint illegal enterprise, no duty of care was initially owed by the defendant. However, the plaintiff argued that he had withdrawn from the joint illegal enterprise at the point the defendant had been asked to slow down.

In the Supreme Court of Queensland (the Supreme Court), Daubney J dismissed the plaintiff’s claim on the grounds that the defendant did not owe a duty of care to the plaintiff in circumstances where they were, at the time of the accident, jointly engaged in a criminal activity. His Honour explained:

“…when the vehicle was stolen and thereafter, the defendant and the plaintiff were complicit in the offence of illegally using the vehicle. On the authority of Milller v Miller it must therefore be said that, for so long as they were complicit in that joint illegal enterprise, the defendant did not owe the plaintiff a duty to take reasonable care.” ²

The plaintiff had not withdrawn from illegal activity merely because the defendant was implored to slow down. The Supreme Court held that unequivocal notice of the withdrawal must be communicated before the duty will be re-instated. Specifically, the plaintiff would need to establish:

(a) Something more than a mere mental change of intention

(b) Timely communication of the withdrawal, and

(c) That he took such action as he could reasonably take to undo the effect of his previous encouragement or participation.

As none of these elements were satisfied, it was held that no duty of care was owed.

It is now well established that one illegal user of a motor vehicle cannot recover damages for injuries sustained as a result of the negligent driving of another illegal user of the vehicle. This is on the basis that for as long as they are complicit in that joint illegal enterprise, the driver does not owe his passenger a duty to take reasonable care.

There are circumstances, however, when a passenger, by conduct, will have withdrawn from that illegal enterprise. This case clarifies the elements that a passenger will need to satisfy a court in order to secure a finding that a duty of care was re‑instated before the accident occurs.