Court of Appeal Supreme Court New South Wales Medium Neutral Citation: SW v Khaja [2020] NSWCA 128 Hearing dates: 12 March 2020 Decision date: 14 July 2020 Before: McCallum JA at [1]; Emmett AJA at [108]; Simpson AJA at [132] Decision: (1) Appeal dismissed. (2) Appellant to pay the respondent's costs. Catchwords: NEGLIGENCE – motor vehicle accident – passenger falling from moving taxi – central factual contest as to whether she was engaged in joint criminal enterprise of attempted armed robbery of the driver – where appellant conceded that it was open to find she had possession of a knife but denied using it and denied any robbery – whether evidence supports the finding that the appellant did attempt to rob the driver with the knife – prohibition on awarding damages by operation of s 54 of the Civil Liability Act 2002 (NSW) Legislation Cited: Civil Liability Act 2002 (NSW), ss 5D(1), 52, 53, 54 Crimes Act 1900 (NSW), ss 61, 94, 97, 98, 99, 117, 192D, 192E, s344A(1) Motor Accidents Compensation Act 1999 (NSW) Passenger Transport Regulation 2007 (NSW), cl 163(2) Cases Cited: Bevan v Coolahan (2019) 89 MVR 407; [2019] NSWCA 217 Colosimo v DPP [2006] NSWCA 293 Douglas v R [2005] NSWCCA 419 Jones v Dunkel (1959) 101 CLR 298 Laresu Pty Ltd v Clark [2010] NSWCA 180 Lim v Cho (2018) 84 MVR 514; [2018] NSWCA 145 Mencarious v R [2008] 189 A Crim R 219; [2008] NSWCCA 237 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 Rolls Royce Industrial Power (Pacific) Ltd v James Hardie and Coy Pty Ltd (2001) 53 NSWLR 626; [2001] NSWCA 461 SW v MK (No 5) [2019] NSWDC 242 Category: Principal judgment Parties: SW (appellant) Md Abdus Khaja (respondent) Representation: Counsel: R S McIlwaine SC; N D Compton (appellant) P Deakin QC; A Parker (respondent) Solicitors: Stacks Goudkamp Lawyers (appellant) McInnes Wilson Lawyers NSW (respondent) File Number(s): 2019/190004 Publication restriction: The names of the appellant and some of the witnesses have been anonymised to avoid breach of s 15A(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW). Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2019] NSWDC 242 Date of Decision: 24 May 2019 Before: Gibson DCJ File Number(s): 2017/170506 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] The appellant suffered catastrophic spinal injuries when she fell from a moving taxi. The driver of the taxi (the respondent) had collected the appellant and three other teenage girls from a location in Ambervale and followed their directions to Campbelltown, which was only a short distance away. When the driver pulled over as instructed a struggle erupted between him and the appellant who was seated in the front passenger seat. During the struggle the taxi began moving forwards, reaching a speed between 22 and 28 km/h by the time the appellant fell out of the passenger side doorway. The driver told police that the appellant had produced a knife and demanded money, his wallet and mobile phone. In a search of the area shortly after the incident, police found a large kitchen knife under a hedge. The appellant denied threatening the driver or having possession of a knife while in the taxi. The appellant sued the driver claiming that he pushed her out of the moving taxi (for no apparent reason). She relied heavily on CCTV images from inside the taxi to support her case. On 24 May 2019, the primary judge (Gibson DCJ) dismissed the claim and gave judgment for the respondent. Her Honour concluded that the appellant was engaged in an illegal enterprise, namely the commission of robbery involving the use of a knife and so s 54(1) of the Civil Liability Act 2002 (NSW) precluded an award of damages. Her Honour also found against the appellant on the issues of duty of care and breach of duty and held that the appellant had not established factual causation or scope of liability within the meaning of s 5D(1)(a)-(b) in the Civil Liability Act 2002 (NSW). Further, her Honour held that the driver was acting in self-defence. The appellant appealed against the primary judge's decision, raising thirteen grounds of appeal. It was not disputed that there was a struggle inside the taxi and the appellant conceded that there was sufficient evidence to support a finding that she had possession of a knife. The principal issue before this Court was whether the appellant attempted to rob the respondent with a knife. One way or another, the resolution of that factual issue against the appellant is fatal to her claim. Held (per McCallum JA; Emmett AJA and Simpson AJA agreeing), dismissing the appeal: (1) The CCTV images support the primary judge's finding that the appellant had a knife and attempted to rob the respondent: at [76], [79]. (2) The primary judge did not explicitly address the second element of s 54(1) of the Civil Liability Act, which considers whether the conduct of the appellant materially contributed to the injury: at [82]. However, the only reasonable conclusion that could be reached on the findings made by the primary judge was that the appellant's criminal conduct "contributed materially" to her harm: at [82], [85]. (3) There is no merit in the appellant's argument that she abandoned her criminal enterprise when she attempted to leave the taxi: at [86]. The offence of attempted armed robbery was complete and s 54 of the Civil Liability Act, by inclusion of the word "following", precludes recovery of damages for injury suffered while abandoning a criminal enterprise: at [86]. (4) The respondent was acting in self-defence when he pushed the appellant from the taxi: at [87]. Although intentional, the push was a direct response to the appellant's attempt to rob him: at [87]. (5) As s 54 of the Civil Liability Act applies in this case to preclude damages, it is immaterial whether the respondent's conduct materially contributed to the injury sustained by the appellant: at [88]. (6) It follows from a factual finding that the appellant was attempting to rob the respondent with a knife that he did not owe her a duty of care and if he did owe her a duty of care he did not breach that duty: [91]. (7) Although the primary judge did not make a formal finding as to the element in s 52(2) of the Civil Liability Act, which concerns the belief that self-defence was necessary, it is clear from her reasons as a whole that her Honour did address the issue of belief and found it was satisfied in the present circumstances: at [96]. (8) Although the respondent did not give evidence at trial, the plaintiff tendered an out of court statement made by him to the police. Accordingly, there was evidence that went to his subjective belief concerning self-defence: at [100]. Although the rules in Jones v Dunkel may still be applied in those circumstances, "until the plaintiff proves facts from which an inference of negligence can be drawn, the defendant is not called upon to say anything": at [99]. Lim v Cho (2018) 84 MVR 514; [2018] NSWCA 145 considered. (9) Accepting that the appellant was attempting to rob the respondent using a knife, the primary judge's conclusion as to contributory negligence was plainly open and should not be interfered with: at [103]. Rolls Royce Industrial Power (Pacific) Ltd v James Hardie and Coy Pty Ltd (2001) 53 NSWLR 626; [2001] NSWCA 461 at [172] applied. (10) Damages for non-economic loss are discretionary and there was no identifiable error in primary judge's discretion in this case: at [105]-[106]. Judgment 1. McCALLUM JA: Most of us emerge from the turbulent years of adolescence more or less unscathed. It was not so for the appellant in this case who, on her 15th birthday, suffered catastrophic spinal injuries when she fell from a moving taxi after trying to rob the driver. That was not the version of events she gave at the trial that has given rise to this appeal. She sued the driver claiming that he pushed her out of the moving taxi (for no apparent reason). However, I am satisfied that the primary judge (Gibson DCJ) was right to find that the appellant did attempt to rob the driver by threatening him with a knife and that he reacted to defend himself and committed no crime: SW v MK (No 5) [2019] NSWDC 242 at [144], [149]. It is beyond doubt on the strength of those findings that the appellant's own criminal conduct contributed materially to her injuries. Unfortunately for her, it follows in accordance with s 54 of the Civil Liability Act 2002 (NSW) that the Court is not to award damages. 2. The appellant is now a paraplegic. As observed by the primary judge, her life will undoubtedly be one of extreme hardship. However, in light of the findings of the primary judge, to which there has been no successful challenge, the result mandated by the statute is that the appeal must be dismissed. Circumstances in which the proceedings in the District Court were brought 1. The driver of the taxi (to whom I will refer as the respondent) had collected the appellant and three other teenage girls from a location in Ambervale. The appellant directed him to Campbelltown, which was only a short distance away. She was seated in the front passenger seat and her three friends were seated in the back. I will return to the detail of the evidence of the events that caused the appellant's injuries. In short, when the respondent pulled over shortly after the point indicated by the appellant, the three girls in the back began to get out. Putting the matter neutrally, a struggle erupted between the respondent and the appellant during which the taxi began moving forwards as she was getting out. CCTV images indicate that the taxi had reached a speed of somewhere between 22 and 28 km/h by the time the appellant fell out of the passenger side doorway. 2. In a search of the area shortly afterwards, police found a large kitchen knife under a hedge. A photo of that knife was in evidence. 3. Two days after the accident, the respondent voluntarily participated in an electronically recorded interview with police. I will return to explain the status of that record of interview in the evidence before the primary judge. The respondent said that he is an accountant who drives taxis on weekends for extra income. He told the police that, after he picked up the four passengers, the girl in the front seat gave him directions towards Campbelltown. She gave him directions to stop, which he did. He said that, after he had stopped, she produced a knife and demanded his money, his wallet and mobile phone. He described the knife as a "kitchen knife", a "chopping knife, not the smaller one but thick one". The photograph in evidence of the knife found by police under the hedge fits that description. 4. The respondent, who was aware that another taxi driver had been beaten and robbed in that area about a month earlier, became frightened for his life (it emerged in evidence at the trial that the appellant was present at that earlier incident but, for reasons it is not necessary to explain, it is appropriate to disregard that evidence for present purposes). 5. The respondent was asked by the police to describe the girl. He did not have a good recollection of her clothes. He thought she was probably around 20 years old and described her as an "Aussie girl". However, he added: "I'm, the night time, I normally, it is not our job to exactly, to look around the girl, I mean I am … person, we don't want to look at the girls all like this, I got two girls and I feel … possible. And I, I never look at the customer, how they are wearing, how they look like, normally I try to avoid, is part of my cultural reason." 1. He said that when he stopped he was "expecting some money". The fare on the meter was about $14. He said somebody then produced the knife and demanded money from him. He said it was the girl in the front seat who produced the knife and he thought it had been in her jumper pocket. He agreed, when asked, that he was describing the pocket with two holes "that runs along your stomach". There was unequivocal evidence that the appellant was wearing a hoodie with a pocket of that kind. 2. The respondent further explained that, when the girls in the back got out (they were all wearing hoods or hats and he thought two of them were boys), he could see one of them coming and he got more frightened because the previous attack had involved a driver being beaten from the driver's side door. He said: "And I get a bit shaky because they might be attack me again and they might, ah, they asking for the wallet and the mobile phone and it's, it's not, my life is more worth than this things, and I that, I should prob, better I should run. That was, that, unconscious mind." 1. The respondent said that he did not know where he was "running" (driving) and that the taxi hit the gutter. 2. The respondent said that the back passengers left the taxi first. He then gave the following description of the appellant's exit from the vehicle: "And within a few, matter of fraction, just a few second, that she was holding knife and open the door and about to go because … they got scared as well. I get a scared myself and they get a scared as well because it can be happen anything they get bit caught. The, she just open the door and holding the leg on outside, I just, I just, they coming people like … and I was just run, I just … run, I said, I just move the car as quick as possible." 1. The respondent estimated that he travelled only a few metres and that he might have been travelling 20 to 30 km per hour when he hit the curb a few seconds later. He said he was holding the steering wheel in one hand and trying to protect himself with the other hand. He said once the taxi stopped after hitting the gutter he still feared the girls were running towards him so he opened the door screaming and ran towards the nearest house. 2. The respondent was then shown the footage from the taxi (strictly, a series of stills). In large measure, the images he was shown confirmed the account he had given but in some important respects they did not. For example, he told the police that he had in fact given the girl money from his pocket. However, none of the CCTV stills showed him taking money out of his pocket or handing it to the girl. 3. In due course the appellant was arrested and charged with armed robbery. She was acquitted of that charge in the Children's Court in August 2016. Proceedings before the primary judge 1. The proceedings in the District Court were commenced by statement of claim filed 7 June 2017. The statement of claim pleaded a case that the appellant was ejected from the taxi and then run over by its back wheels. The particulars of negligence alleged that the respondent drove at a speed which was excessive in all the circumstances, failed to maintain any or any proper control over the taxi, drove the taxi in a dangerous manner, failed to exercise due and proper care and failed to slow down or stop to avoid running over the appellant. The primary judge allowed the appellant to expand the case during the hearing to include the allegation that the respondent pushed the appellant from the moving car. 2. The evidence was heard over nine days in November 2018. The matter was then stood over for final oral submissions in March 2019 following the exchange of written submissions. 3. The appellant gave evidence that she and her friends were intending to go to a park in Campbelltown where it appears young people often gathered. She said that when they got near the park, she indicated for the respondent to pull over but that he kept driving. She said he continued driving to the end of the street and then turned "upwards" (there was a right-hand turn onto Regents Street, which went uphill). The respondent then stopped the taxi. By that time, based on the CCTV images, it appears all three passengers in the back had undone their seatbelts. The appellant said she then undid her seatbelt and opened the passenger side door. She said she tried to exit the taxi and that the respondent then grabbed her right arm with his left hand. She said "I was trying to get him off me and I – we were – there was just a struggle". She said that he then threw her out of the taxi. She said he pushed her out the door while the taxi was moving. She said that she thought he did not accelerate until after he grabbed her arm. 4. The appellant denied that at any time during the journey she had demanded money from the respondent and she denied that she had threatened him with a knife. 5. In cross-examination, it was put to the appellant that she had a knife when she entered the taxi. She denied that. She also again denied producing a knife in a threatening way to the respondent. 6. The appellant was cross-examined as to a previous inconsistent statement allegedly made to her solicitor, Tom Goudkamp, in the presence of a social worker on 22 December 2015 (about a month after the accident) while she was in Sydney Children's Hospital. The social worker's notes included the following as the appellant's "version of events": "SW advised that she had smoked cannabis approximately 10 minutes prior to getting into the taxi. SW smoked approximately 1 stick (1 gram) between the four of them. SW stated that smoking cannabis makes her calm. She and her two friends TJ and SD went to her other friend TC's house to collect her. SD phoned a taxi using TC's phone. Unsure if they told the taxi over the phone of their planned destination. They left TC's home and was walking through a park/alley way. SW saw a kitchen knife on the ground and picked it up and put it in her jacket pocket. SW said that she picked up the knife as she did not want any children getting injured by the knife. The [sic] saw the taxi driving by and hailed it. They got in (SW) in the front seat, with TJ, SD and TC in the back. They informed the driver of their destination – Park Central. SW stated that she had headphones on and was listening to music. She said that the driver was giving dirty looks, looked creepy to them. SW could not hear much of the conversation as she had headphones in. As the driver pass [sic] their intended stop, SW told him to pull over. He kept driving. The driver eventually pulled over after being told to stop. TJ and TC got out of the taxi. SW opened the door, took off her seatbelt, intending to get out of the taxi. SW advised that TJ was going to pay the taxi driver. At this point, the driver grabbed hold of SW's arm to prevent her from exiting the taxi. The driver has then accelerated the car and was driving up a hill. TC's got dragged by the taxi as her jacket was caught in the door and in self-defence she pulled out the knife and told him to let go. The driver loss [sic] control of the vehicle and ended up hitting an electrical box. SW believes that she was pushed or fell out of the vehicle as it was still moving, then she fell under the vehicle with the back wheels running her over. She then rolled down the street. SW did not know SD had been in the vehicle after her two other friends got out. It is believed SD got out of the vehicle at some point as the vehicle was moving." 1. I note that the appellant said nothing in her evidence-in-chief at the trial about the respondent giving her "dirty looks". The CCTV stills in evidence do not cover the whole trip but there is nothing in those images to suggest that he showed any interest in the girls whatsoever. As already noted, he told the police that he thought there were two girls and two boys. 2. When confronted during cross-examination with the version given to her solicitor, the appellant maintained that she did not have a knife with her in the taxi. The cross-examination continued (Tcpt 190): "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." 1. That was an implausible explanation for an extremely damaging piece of evidence. 2. The appellant's next witness was TJ, who was seated behind the respondent. TJ said that, when the taxi stopped, she already had her seatbelt off (that is confirmed by the CCTV images) and that she said "let's go, let's get out". Asked who was going to pay the respondent, she said that she was and that she had sufficient money to do that. However, she said she did not pay the respondent "because he already had held [sic] of my friend". She denied that the appellant had a knife and denied that the appellant had threatened the respondent or demanded anything from him. 3. At the conclusion of TJ's evidence-in-chief, the primary judge indicated that she did not understand why TJ got out of the taxi without paying. Trial counsel for the appellant asked a further question about that, to which TJ responded "I was in the process of paying him, but as I got out he held onto [the appellant] and he took his foot off the brake and accelerated. That way I didn't have a chance to pay him". 4. The judge pressed the witness, indicating that she did not understand why the witness did not pay the respondent while she was still in the taxi. The witness replied "because you get out and you pay people face to face". She said that she was getting out to go to the door and hand him the money. In cross-examination TJ maintained that the appellant did not have a knife. 5. Later in the cross-examination it was put to TJ that there was a struggle "by the driver trying to stop [the appellant] using the knife that she had in her hand". She replied "possibly but I don't recall seeing it" (Tcpt 353). 6. TJ recalled seeing the driver running down the street after the accident screaming "help me, help me" and "she had a knife". 7. TJ was cross-examined about a series of Facebook messages she later sent to SD, who was seated in the middle of the back seat on the night. It was put to TJ that this exchange took place the day before the appellant's criminal matter was before the Children's Court. TJ said she did not know that. The Facebook entries were in evidence before the primary judge. In summary, in those exchanges, TJ was expressing in forceful and threatening terms her disapproval of SD for not going to court to give evidence to support the appellant. 8. The next witness after TJ was TC, who was seated behind the appellant in the taxi. TC had apparently also seen the Facebook messages from TJ about giving evidence to support the appellant. Before TC was called, both trial counsel foreshadowed an application for the issue of a bench warrant for the arrest of SD as she had failed to attend court in response to a subpoena issued at the request of the appellant. 9. TC's account was consistent with that given by the appellant and TJ. In short, she said the respondent drove off as they were getting out of the car. She denied seeing the appellant with a knife before they got in the taxi or at any time. She denied hearing the appellant threaten the taxi respondent or demanding anything from him. 10. SD was arrested on the warrant and brought to court by the sheriff's officers. As already noted, she was in the middle seat in the back and so had a clear view into the front of the taxi. She gave evidence that, after the taxi stopped, TJ and TC got out. She said that she saw the respondent grab the appellant's hand. She said she heard the appellant demand money from the respondent and that it was immediately after that demand was made that the struggle between the appellant and the respondent started (Tcpt 500). 11. SD said she did not see the appellant with a knife in the taxi. However, describing what happened when the appellant fell, she said that after they saw that the appellant was on the ground and could not feel her legs, TJ "threw away the knife for [the appellant]". She was not sure where the appellant had the knife but she thought it was on her lap. 12. SD also said that the girls had discussed before calling the taxi that they were going to rob the driver. 13. SD agreed that she may have touched the respondent on the neck. During his interview with police, the respondent had shown the police that he had a scratch on the left side of his neck. The CCTV photos show SD holding the back of the respondent's seat at one point, apparently as she was getting out of the taxi. 14. Trial counsel for the appellant asked SD what the Facebook conversation was about. She replied "I didn't want to speak on the stand for [the appellant] and [TJ] wanted me to because she thought it would help her case but I didn't feel confident getting up on the stand" (Tcpt 498). 15. In cross-examination, there was the following exchange (Tcpt 504): "Q: Was one of the reasons why you didn't feel confident about getting up on the stand is that you didn't want to have to tell the Court about the fact that there was a knife in [the appellant's] hands, is that right? A: No. I didn't want to tell them that we were planning on robbing the taxi." 1. In response to a further question from the judge, she added: "I didn't want to go [to the Children's Court] because I didn't want [the appellant] 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." 1. After the conclusion of SD's evidence, trial counsel for the respondent sought leave to further cross-examine the appellant, TJ and TC in light of SD's evidence. That application was not opposed and each of those witnesses was made available for further cross-examination. In each case, SD's version was put to the witness and she was pressed as to whether there was a knife. Each maintained that there was not (TJ suggested that SD was "talking shit" about them). 2. The respondent did not give evidence. It was explained by his counsel at the trial that the decision not to call him was based on the fact that the appellant had tendered his police record of interview in her case. So far as can be gleaned from the appellant's closing submissions, the reason for tendering that document was that it included an admission that the respondent had pushed the appellant out of the car. However, it was tendered without qualification and was available for all purposes. 3. After it was indicated that the respondent was not going to give evidence, trial counsel for the appellant sought leave to re-open his case to tender part of the transcript of the respondent's evidence in the Children's Court. After some debate, counsel ultimately tendered a single page (dated 12 August 2016) of the 100 pages of transcript of the evidence given by the respondent. The purpose of the tender was to establish that the respondent was lying or exaggerating in his account of the incident. It is doubtful whether it established that. The respondent had been asked "can you place your hand where you say the knife was held?" He said: "Knife was – like I'm sitting down, as a driver, here. She sit down next to me. She produce knife from this side like a very professional way not like this way, holding like this was to be more stronger, could be hit any time." 1. The prosecutor then sought to describe for the record what had been demonstrated, saying: "Would your Honour accept that the knife was held in a fist like motion above the left side of his temple, just higher than his temple, where the knife would be held by the butt facing downwards with the blade?" 1. It is by no means clear from that exchange that the respondent was claiming the knife had been held at his temple on the night. It is apparent from the record of interview that English is not his first language. He may have been simply describing the way in which the knife was held in the hand of the appellant, not the position in which it was held relative to his own head. Conclusions reached by the primary judge 1. The primary judge acknowledged the difficult circumstances in which the appellant had to give evidence (being very seriously injured and in great distress) but found, primarily based on the inconsistencies between her evidence in the trial and what she had previously told her solicitor, that she was not a witness of truth: at [124]. 2. Her Honour noted at [8] that SD and TJ had essentially admitted that there was an attempt to rob the taxi driver, although TJ had denied that there was a knife. The primary judge considered that the evidence of TJ should be regarded with caution, particularly having regard to her attempt to influence SD and TC in relation to giving evidence in the Children's Court: at [126]. Her Honour similarly found that TC had "serious credit issues" and that her evidence was probably influenced by TJ's threats: at [68]-[70], [127]. 3. Her Honour accepted SD as a truthful witness: at [125]. 4. After a careful and thorough analysis of all of the evidence, the primary judge set out at [143] a series of findings of fact. On the strength of those findings, her Honour concluded at [144] that the appellant was engaged in an illegal enterprise, namely the commission of robbery involving the use of a knife. Her Honour observed that the circumstances of the robbery satisfied "all of the criteria in R v Henry (1999) 46 NSWLR 346". The decision in Henry is a sentencing guideline judgment. Its relevance in this context is not entirely clear. It appears from a remark later in the judgment that her Honour may have taken the fact that the case fell within the Henry guideline into account in her consideration of the scope of liability for the purpose of s 5D(1)(b). In any event, her Honour's analysis of the evidence and her factual conclusions were, in my respectful opinion, plainly right. 5. The appellant invited the primary judge to find that, even if there was an attempted robbery, the respondent was liable because he pushed the appellant from the taxi as she was trying to get out. The respondent submitted that the appellant should not be permitted to put that case as no allegation of pushing was included in the particulars of negligence in the amended statement of claim. The primary judge rejected that submission, noting that the allegation of pushing had been pleaded in the reply and that the respondent had elected not to raise the issue before the trial: at [159] (I note that the respondent's submissions in this Court reprised that argument but I see no reasons to depart from the approach taken by the primary judge). 6. As noted below, the primary judge appears to have been satisfied that the respondent pushed the appellant away from himself in order to defend himself. While it followed that he pushed her in the direction of the open door while the taxi was moving, the critical issue was whether that was done in response to being threatened with a knife, in which event it took on a completely different complexion. 7. As I understand her Honour's reasons, the dispositive finding was that the respondent owed no duty of care to the appellant in circumstances where her Honour was satisfied that the appellant "was using a knife to try to rob [the respondent] and he was responding by trying to push her away or out of the vehicle": at [172]. 8. The primary judge proceeded to consider some of the remaining issues in the case against the risk of error in her conclusion as to duty of care. However, as I will explain, her Honour did not expressly address every element of the remaining issues. Her Honour said at [173] that if she had erred in holding that the respondent did not owe a duty of care in the circumstances, she would be satisfied that there was no breach of duty in circumstances where the respondent, confronted with a knife by the appellant and with three other participants very close to the taxi, put his foot on the accelerator while seeking to push the appellant "away". 9. In the following passage of the judgment, her Honour set out her reasons for that finding "noting not only the common law principles and statutory provisions, but also the applicability of section 54": at [173]. It might have been appropriate to address s 54 first: cf Bevan v Coolahan (2019) 89 MVR 407; [2019] NSWCA 217 at [65]-[69] per Leeming JA (Basten JA at [34] agreed with parts of Leeming JA's judgment but did not include those paragraphs in his agreement; I was in dissent and did not consider the issue). In any event, as already noted, the judge found against the appellant on the issues of duty of care and breach of duty. Her Honour also concluded that the appellant had not established factual causation as defined in s 5D(1)(a) of the Civil Liability Act or scope of liability within the meaning of s 5D(1)(b): at [176] to [183]. 10. In the exposition of her reasons for her conclusion as to duty of care and breach of duty, her Honour dealt with breach of duty and s 54 of the Civil Liability Act under the same heading, apparently on the understanding that counsel for the respondent, Mr Deakin QC, had also addressed those issues together. In fact, there was a separate section in Mr Deakin's submissions concerning breach of s 54. 11. Section 54(1) provides: (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. 1. Her Honour made a finding at [190] that the appellant's conduct constituted a serious offence, which was enough to satisfy the first limb of s 54(1). One of the grounds of appeal is that her Honour failed to address the second limb (whether the conduct contributed materially to the injury). It will be necessary to return to that issue. 2. Section 54(2) removes the application of the prohibition on awarding damages to "criminals" where the defendant's conduct that caused the injury constitutes an offence. The primary judge did not expressly refer to that provision but, having found that the appellant's conduct constituted a serious offence, moved directly to consider s 52 of the Civil Liability Act. That section addresses the situation where the conduct of the defendant complained of was carried out in self-defence (which informs its lawfulness). 3. Section 52(2) relevantly provides: (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 1. The primary judge did not make an express finding on that issue. At [194], her Honour said: "'Belief' is a subjective test. The plaintiff submits that the failure of the [respondent] to give evidence means that this is a difficult hurdle to climb." 1. The discussion of s 52 ended there. However, her Honour had earlier at [149] recorded her finding that the respondent was acting in self-defence and that therefore no crime was committed by him. The result of that finding was that, if the two limbs of s 54(1) were satisfied, s 54(2) did not operate to remove the application of the prohibition in that section. The primary judge did not expressly articulate that conclusion but it necessarily follows from the findings she made. 2. The primary judge next dealt with contributory negligence at [195]-[200], concluding, on alternative scenarios, that the deduction for contributory negligence should be either 100% or 90%. Her Honour recorded her conclusions concerning liability in the following terms: "[199] 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. [200] Before considering damages, I note my findings (also in the alternative) in relation to s 53 Civil Liability Act." 1. Those remarks ("I note my findings in favour of the defendant") confirm that her Honour was satisfied of findings in favour of the respondent on the question of self-defence under s 52. 2. The primary judge then turned to address s 53 of the Civil Liability Act. That section provides: (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. 1. Her Honour said at [202]: "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." 1. However, as I read that part of the judgment, her Honour did not in fact make a finding that the respondent's response was not reasonable in the circumstances as he perceived them but simply intended to indicate, against the risk of error in her conclusion concerning s 52, her findings on the issues raised by s 53. 2. The primary judge recorded her view that the denial of damages would be "harsh and unjust" (which addresses the issue raised by s 53(1)(b) but did not address the issue raised by s 53(1)(a) (whether she was satisfied that the circumstances of the case were exceptional). Grounds of appeal 1. The appellant's submissions on appeal opened with a concession that there was sufficient evidence to support a finding that she had possession of a knife. However, she challenged the finding that she used the knife to rob the respondent. 2. The notice of appeal specified 13 grounds of appeal challenging most aspects of the primary judgment. However, as noted by the primary judge, the critical issue in the proceedings was whether the appellant did attempt to rob the respondent with a knife. One way or another, the resolution of that issue against the appellant is fatal to her claim. The CCTV images 1. Grounds 1 and 2 concern the CCTV images. Ground 1 contends that the primary judge erred in finding that the CCTV images from inside the taxi were of poor quality, lacked clarity and were difficult to interpret. Ground 2 contends that the primary judge erred in failing to correctly interpret and rely upon the CCTV images. 2. It is important to note that the CCTV evidence is not a continuous video. There were four cameras attached to the taxi which took still images from different perspectives on a rotational basis at a rate of approximately one image per second from each camera. The most useful images are those taken from camera two, which is fixed to the inside of the front windscreen at about the height of the rear-view mirror facing back into the inside of the taxi. The images from that camera show the taxi driver and all four passenger seats. The photographs are imprinted with a variety of information including the date and time, the speed of the taxi and "door (close)" or "door (open)". 3. At trial, the appellant relied on the CCTV images as "clear and unambiguous" evidence that, after the taxi stopped, the respondent assaulted her by grabbing her arm (as shown in image 1913) and then, after accelerating up Regents Street and reaching a speed of 22.6 km/h, deliberately pushing her out of the taxi (image 1933). The appellant submitted to the primary judge that those images demonstrated the unreliability (and indeed falsity) of the respondent's evidence in the Children's Court where he said that a knife was held above the left side of his temple just higher than his temple. It was submitted that, if that had occurred, it would have been captured and recorded by the cameras. As explained above, it is not clear to me that the respondent made that claim. Even if he did, it does not follow that he was lying about having been threatened with a knife. 4. The appellant also submitted that the CCTV images show the falsity of the respondent's claim to police that the appellant held a knife to his throat and that she demanded money. However, his claim that she demanded money was corroborated by SD, whose evidence the primary judge believed. As to the claim that the knife was held to his throat, that was based on what was recorded in the COPS report at Blue/3 1151. However, the respondent did not describe the robbery in those terms in his record of interview with police. As already noted, he did receive a scratch to the neck which police observed when they interviewed him (Q505). He could not say how he got that scratch. 5. In his submissions to the primary judge, the respondent identified a number of shortcomings of the CCTV evidence including the fact that only one of the four cameras operates at a time, in sequence and the fact that the images are not continuous but are at approximately one second intervals. 6. In circumstances where the appellant was relying on the images for what they did not show and the respondent was emphasising their limited value as evidence, the primary judge was careful to consider a series of appellate decisions concerning the correct approach to the use of photographs and CCTV footage. Her Honour concluded at [86]-[88] that it would be inconsistent with those authorities to make the findings contended for by the appellant "on such poor quality CCTV". 7. The primary judge said at [87]-[88]: "[87] 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). [88] 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." 1. As submitted by the appellant, it is not clear what her Honour had in mind in referring to any "conflict between the oral testimony of the witnesses and the CCTV". The appellant noted in this context that the respondent did not give evidence at the trial. However, I see no error in her Honour taking a cautious approach to the CCTV images and instead focussing on other evidence in the trial. As the foregoing analysis reveals, there was ample evidence that the appellant threatened the respondent with a knife. 2. In any event, even assuming the correct approach was as contended by the appellant ("to correctly interpret and rely upon the CCTV images") that does not assist the appellant. In my view, the CCTV images support the primary judge's finding that the appellant had a knife and attempted to rob the respondent. 3. Because of the importance placed upon this material by the appellant, it is appropriate to describe my analysis of the photographs from camera number two in some detail. I have set out my observations in table form below (the "time" column shows hours:minutes:seconds): Image # Time Observation 1885 21:58:35 The taxi is at a standstill (it remains so for about 8 seconds, until 21:58:43). The driver is looking more or less forward and down and has his left hand raised and almost touching the camera, perhaps turning off the meter. The appellant has her hands in the area of her lap, apparently in her pockets, and her face down. She is wearing a hoodie with the hood up and also a baseball cap tilted down. Her face is completely obscured. 1889 21:58:36 The driver is looking towards the appellant's lap. She is leaning forward and her right elbow is bent. 1893 21:58:37 The driver is still looking towards the appellant's lap. She is leaning slightly further to her left and her right elbow has come higher, as if she is drawing her right hand out of her lap or her pocket. 1897 21:58:38 The driver's facial expression has changed; his mouth is partly open as if he is saying something. The appellant is still leaning to the left and her hand is in her lap. No object can be seen but she appears to be clutching something. 1901 21:58:39 The driver's mouth is wide open as if he is exclaiming. His left arm is reaching directly into the appellant's lap. She is leaning further forward. The girls in the back are starting to get out. 1905 21:58:40 The driver is reaching for the appellant's right lower arm near the elbow with his left hand. She is leaning mostly out of the image in the direction of the passenger side door. 1909 21:58:41 The appellant is leaning further forward. The driver's hand still appears to be in the area of her lap. Both his hand and her arm are out of the picture. 1913 21:58:42 The appellant has straightened up (ie she is no longer leaning forward) and is leaning sharply towards the passenger side door. The driver's left arm is higher up, now perpendicular to his body. He appears to have a hold of the appellant's right upper arm. He is now directly facing the appellant and his face is in a grimace. Only the upper portion of his right arm can be seen but it is in a position consistent with his right hand being on the steering wheel. Two of the passengers in the back have left the car and the third is in the process of leaving on the driver's side. In all of the images up to this point, the taxi has been at a standstill. 1917 21:58:43 The driver has turned to look forward rather than at the appellant. His left arm is back down and he has his hand in the area of the passenger seat. All that can be seen of the appellant is a white blurry shape apparently much closer to the camera than in the previous image. It is not possible to tell what part of her body is shown. The taxi has begun to move forward and is recorded at 3.5 km/h. 1921 21:58:44 This is an important image. The driver is looking not at the road but back towards the passenger seat. His hand appears to be clutching an object in the appellant's lap. She is crouched over leaning forward in the passenger seat so that the top of her head can be seen. Her arms appear to be bent with her elbows pointing into her lap. While the image is blurry, the object the driver is clutching in his left hand could be the butt of a knife. At this stage, the taxi is travelling at 9.6 km/h. 1925 21:58:45 The image is blurry suggesting movement. The driver is looking towards the appellant and his face is in a grimace. His left arm is reaching right over towards the passenger side door, which is where the appellant's right hand also appears to be but due to the blurriness it is hard to tell. The appellant is facing towards the passenger side door. The taxi is travelling at 16.6 km/h. 1929 21:58:46 The driver has taken his right hand off the wheel and is looking directly at the back of the appellant with both arms outstretched towards her. She is facing away from him, towards the passenger side door. The driver no longer appears to have hold of her arm. His right hand is in the area of her right upper arm or shoulder and his fingers are outstretched. The taxi is travelling at 19 km/h. 1933 21:58:47 The driver's right hand appears to be back towards the steering wheel (only the upper portion of the arm can be seen) but he is still facing the appellant rather than the road. His left hand is on the appellant's lower back. His left knee is raised. The taxi is travelling at 22.6 km/h. 1937 21:58:48 The appellant can no longer be seen. The driver is facing forward. The taxi is travelling at 27.9 km/h. 1941 21:58:49 The driver is still leaning forward. The taxi is travelling at 32.4 km/h. 1. The remaining four images from camera two are also important for what they show of the driver. Between 21:58:50 and 21:58:53 the taxi went from 31.2 km/h to almost a complete halt. However, in two of those three images the driver is looking towards the passenger side door. In the final image at 21:58:54 he can be seen undoing his seatbelt and making to leave the taxi. 2. What is important about the photographs is that, although they are blurry in some parts, they clearly show a struggle which erupted almost immediately after the taxi stopped and in which the respondent appears to be trying to get hold of something being held by the appellant in the area of her lap. The evidence offers no sensible explanation for that struggle other than that the appellant produced a knife. No other reason for a struggle has been suggested by her. On the strength of my analysis of that material, even if, as submitted by the appellant, the primary judge was wrong not to analyse and place reliance on the CCTV images, that evidence is of no assistance to the appellant and indeed harms her case. I would reject grounds 1 and 2. Section 54: criminals not to be awarded damages 1. It is convenient to consider ground 11 next. As already noted, the judge found that the appellant was engaged in an illegal enterprise being the commission of robbery involving the use of a knife: at [144]. That finding satisfies s 54(1)(a) of the Civil Liability Act. 2. Ground 11 is: "The primary judge failed to consider pursuant to s 54(1)(b) of the Civil Liability Act, that the conduct of the Appellant materially contributed to the injury or risk of injury." 1. It is correct that the primary judge did not explicitly address the second element of s 54(1). It does not necessarily follow that her Honour overlooked that issue. In addressing the test in s 5D(1)(a) at [178] of the judgment, her Honour had found that the appellant's commission of the offence of armed robbery was "the dominant and immediate cause" of her harm. In that context, a finding in the terms of s 54(1)(b) of the Civil Liability Act that the appellant's criminal conduct "contributed materially" to her harm was so obvious it went without saying. I am satisfied that that is the only reasonable conclusion that could be reached on the findings made by the primary judge as to the commission of the offence (with which I agree). 2. Although this was not the appellant's argument on appeal, her Honour also did not explicitly address s 54(2), which provides: (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). 1. Elsewhere, however, her Honour had found that the respondent "was acting in self-defence and that therefore no crime was committed by him": at [149]. 2. In my view, it followed inexorably from her Honour's findings that s 54 of the Civil Liability Act precluded any award of damages. That conclusion is enough to dispose of the appeal. However, in case it is wrong, it is appropriate to address the other grounds. That can be done briefly. Abandonment of the criminal enterprise 1. Ground 3 is that the primary judge erred in failing to find that any illegal conduct on the part of the appellant ceased when the appellant attempted to exit the taxi whilst it was stationary. There is no merit in this ground. The only sensible inference based on the evidence summarised above is that, in attempting to exit the taxi, the appellant was attempting to flee from the scene of her unsuccessful attempted armed robbery. It makes no sense to speak of her abandoning the enterprise at that point; the offence of attempted armed robbery (in which she was the principal) was complete. Further, s 54 would preclude the recovery of damages for injury suffered even while abandoning a criminal enterprise, as it refers to injury "following" conduct that constitutes a serious offence. There are authorities that discuss the temporal scope of that phrase but here the answer is clear: the injuries were undoubtedly suffered "following" the attempted armed robbery as that term is understood in s 54. I would reject ground 3. Alleged push 1. Ground 4 is that the primary judge erred in failing to find that the respondent intentionally pushed the appellant out of the moving taxi. It is clear from the way this ground was argued that the true complaint is that the judge erred in failing to find that the respondent intentionally pushed the appellant out of the moving taxi for no apparent reason. As I read the judgment, her Honour did find that the respondent pushed the appellant away from him while the door was open and the taxi was moving. That was an aspect of her conclusion at [172] that no duty of care was owed ("he was responding by trying to push her away or out of the vehicle"). The difficulty for the appellant is that the judge found that the act of pushing was a response to the appellant's attempt to rob the respondent by threatening him with a large kitchen knife. The conclusion that he was acting in self-defence was inevitable, based on the finding of attempted armed robbery. I would reject ground 4. Causation 1. Ground 5 is that the primary judge erred in failing to find that the respondent's conduct of pushing the appellant out of the moving taxi materially contributed to the injury she sustained. On the strength of the conclusions I have reached, the determination of that question is immaterial. On the premise that s 54 applies, it does not matter whether any conduct of the respondent materially contributed to the injuries sustained by the appellant. The conclusions that her injury occurred at the time of or following conduct on her part that constitutes a serious offence and that that conduct contributed materially to her injury is enough to preclude an award of damages. 2. In any event, as with other grounds, the argument of this ground assumed the correctness of the appellant's case that she was attempting to get out of the taxi in the ordinary course when the respondent grabbed her right arm while he drove off. That argument has been addressed in the discussion of grounds 1 and 2 above. I would reject ground 5. Failure to find the respondent's conduct constituted an offence 1. Ground 6 is that the primary judge erred in failing to find that the conduct of the respondent pushing the appellant out of the taxi constituted an offence. The resolution of that issue turns on the question of self-defence, which is addressed in below in the discussion of grounds 9 and 10. Duty of care and breach of duty 1. Grounds 7 and 8 were addressed together by the appellant. Those grounds contend that the primary judge erred in finding that the respondent did not owe the appellant a duty of care and erred in finding that if he owed her a duty of care he did not breach that duty. Again, those grounds reprise the factual argument that the respondent cannot be believed and that the appellant did not have a knife and did not try to rob him. They must be rejected for the reasons already given. Self-defence 1. Grounds 9 and 10 were also addressed together by the appellant. Those grounds contend that the primary judge erred in not applying the correct test when considering and finding that the respondent acted in self-defence pursuant to s 52 of the Civil Liability Act when pushing the appellant out of the moving taxi and that the primary judge erred in finding the respondent acted in self-defence when there was no reliable evidence to satisfy the test as set out in s 52(2) of the Civil Liability Act as to his belief and perception. 2. Those grounds relied on the fact that the respondent did not give evidence at the trial. It was submitted that, in that circumstance, he could not discharge the onus of proving that his conduct was in self-defence. 3. The respondent disputed the existence of a requirement to give evidence as to his state of mind "before the self-defence criteria could be satisfied", citing three criminal cases: Colosimo v DPP [2006] NSWCA 293 at [19]; Mencarious v R [2008] 189 A Crim R 219; [2008] NSWCCA 237 at [61]; Douglas v R [2005] NSWCCA 419 at [99] to [101]. Those cases provide unexceptionable statements of the well-known principle for determining whether there is an evidential basis for leaving self-defence to the jury in a criminal case, where the accused person bears no onus of proof and the onus is on the prosecution to exclude self-defence. They are not helpful in the present context. 4. The respondent further submitted that, although her Honour did not make a formal finding as to the element in s 52(2), it does not follow that its terms were not considered, particularly having regard to the fact that her Honour expressly referred to the terms of the section and in light of her other findings (particularly the finding at [149] that the respondent was acting in self-defence and therefore committed no crime). The respondent referred in that context to the decision of this Court in Laresu Pty Ltd v Clark [2010] NSWCA 180 at [42]-[43]. As explained by Macfarlan JA in that case (Tobias JA and Handley AJA agreeing at [1] and [99]), the critical question is whether it is apparent that the judge has addressed and determined the issues that the Civil Liability Act requires be addressed and determined. 5. In my view, reading the reasons fairly as a whole, it is clear that her Honour did address the issue of belief and was satisfied that the respondent believed his conduct in pushing the appellant away from him while she was holding a knife was necessary to defend himself. That is the conclusion that necessarily underpins her Honour's entire analysis of the events that resulted in the appellant falling from the moving taxi. 6. The critical question is whether there was evidence to support that finding. In my view, there was. As already noted, the appellant tendered the record of the respondent's interview with the police in her own case and accordingly it was available for all purposes. The record of interview was replete with statements to support the conclusion her Honour reached (the relevant exchanges were listed in schedules to the respondent's written submissions in this Court). 7. The failure of the respondent to give evidence means that he was not cross-examined about those statements and caution was due on that account in considering what weight they should be given. But it did not follow from the respondent's failure to give evidence that there was no evidence to support a finding as to the belief he described to the police. 8. The significance of the plaintiff's tender of an out of court statement by a defendant was considered by this Court in Lim v Cho (2018) 84 MVR 514; [2018] NSWCA 145. Coincidentally, that was also a case involving injuries resulting from the plaintiff's fall from a moving car. In that case, Sackville AJA said at [41] (Leeming JA and Emmett AJA agreeing at [1] and [60]) (citations omitted): "The fact that the appellant tendered the respondent's statements to the police does not necessarily make it inappropriate to apply the rule in Jones v Dunkel. It is, however, important to appreciate the limits of the rule. It allows an inference that evidence not called by a party would not have assisted that party, but not that the evidence would have been adverse to that party. Nor does the rule enable a party to fill gaps in the evidence by relying on the absence of a witness the other party might have called. Until the plaintiff proves facts from which an inference of negligence can be drawn, the defendant is not called upon to say anything. More generally, no inference can be drawn unless evidence is given of facts requiring an answer." 1. It may be acknowledged that the circumstances of this case were different in that the issue in respect of which an inference might be drawn from the respondent's failure to give evidence went to his subjective belief. However, because the appellant tendered the record of interview, it was not the case that there was no evidence on that issue. 2. In oral submissions, the appellant argued that the inference that should have been drawn from the respondent's failure to give evidence is that the appellant was trying to get out of the taxi; that she had abandoned any illegal enterprise and that, "for some reason that's completely unexplained, he was trying to prevent her from doing so". There was a measure of tension between that case (that the respondent held the appellant back) and the case put below (that he pushed her out). In any event, I do not accept that the inference contended for should be drawn. The respondent could not have given evidence as to what the appellant was trying to do or whether she had "abandoned any illegal enterprise". 3. Further, once it is accepted that there was an attempted robbery with a knife, the truthfulness of the respondent's statements in the record of interview as to his state of mind can hardly be doubted. I would reject grounds 9 and 10. Contributory negligence 1. Ground 12 is that the primary judge erred in finding that the appellant "was guilty of contributory negligence" at all, or in the percentage of 100% or alternatively 90%. As with other grounds, the argument on this ground proceeded on the premise of the correctness of the appellant's case (that she did not rob the respondent and that he pushed her out of the moving taxi for no apparent reason). Proceeding on the premise of the acceptance of the primary judge's findings, the judge's conclusion as to contributory negligence was plainly open and therefore should not be interfered with: Rolls Royce Industrial Power (Pacific) Ltd v James Hardie and Coy Pty Ltd (2001) 53 NSWLR 626; [2001] NSWCA 461 at [172]. I would reject ground 12. Damages for non-economic loss 1. Ground 13 is that the primary judge erred in determining the amount awarded for non-economic loss in circumstances of the appellant's significant injuries. 2. The respondent submitted that damages for non-economic loss are discretionary and that the appellant has identified no error in the primary judge's exercise of her discretion. The judge's reasons on this issue were short. Her Honour noted that the plaintiff had suffered catastrophic injuries, referring to the loss of the use of her limbs and sexual functioning and also her loss of bladder and bowel control. Her Honour said at [210]: "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". 1. The appellant submitted that damages for non-economic loss should have been awarded at the statutory maximum which, at the time of judgment, was $546,000. While a higher award might have been allowed, I am not persuaded that her Honour's discretion miscarried. I would reject this ground. Orders 1. For those reasons, I propose the following orders: 1. That the appeal be dismissed. 2. That the appellant pay the respondent's costs. 1. EMMETT AJA: This appeal is concerned with an injury suffered by the appellant on her 15th birthday in November 2015. The appellant was injured when she fell from a taxicab driven by the respondent in Regents Street, Campbelltown, and the rear wheels of the taxicab passed over her, causing grave injury resulting in paraplegia. The appellant sued the respondent, the driver of the taxicab, in the District Court claiming damages on the basis of the negligence of the respondent. 2. On 24 May 2019, a judge of the District Court (the primary judge) directed the entry of judgment for the defendant and ordered the appellant to pay the costs of the proceedings. By notice of appeal filed on 21 August 2019, the appellant appeals to this Court from the orders made by the primary judge. 3. In her amended statement of claim, the appellant alleged that the respondent so negligently drove, managed and controlled the taxicab that she was ejected from it and then run over by its back wheels, as a result of which she suffered catastrophic spinal injury that has rendered her a paraplegic. The appellant alleged that the respondent was negligent in the following respects: * driving at a speed that was excessive in all circumstances; * failing to maintain any or any proper control over the taxicab; * driving the taxicab in a dangerous manner; * failing to exercise due and proper care; * failing to slow down or stop to avoid running over the appellant. 1. The respondent's defence admitted that he was driving the taxicab in which the appellant was travelling as a front seat passenger. However he denied that he negligently drove, managed or controlled the taxicab and denied that the appellant suffered injury as a result of his negligence. 2. The respondent also made a number of allegations in his defence that give rise to the issues in the appeal. Thus, he made the following allegations: * the appellant was involved in an illegal enterprise in threatening the respondent with a knife such that, in the circumstances, he did not owe the appellant a duty of care; * the respondent denied that he breached any duty owed to the appellant; * the respondent was acting in self-defence or "in the agony of the moment"; * the injury sustained by the appellant occurred at the time of, or following, conduct by the appellant that constituted a serious offence materially contributing to her injury as referred to in s 54(1) of the Civil Liability Act 2002 (NSW) (the Liability Act), being offences under ss 61, 94, 97, 98, 99, 117, 192D and 192E of the Crimes Act 1900 (NSW) (the Crimes Act); * alternatively, the appellant attempted to commit the offences referred to above, thereby constituting offences under s 344A(1) of the Crimes Act; * the appellant smoked cannabis shortly prior to the accident; * the appellant evaded payment of the taxi fare payable in contravention of cl 163(2) of the Passenger Transport Regulation 2007 (NSW); * given the actions of the appellant, any action in response, whether it be by self-defence, "agony of the moment" or simply a reaction, was neither a breach of the duty of care owed by the respondent to the appellant nor a necessary cause of the injury sustained by the appellant; and * the amount of any damages awarded to the appellant should be reduced by reason of her own fault and negligence. 1. In her reply to the respondent's defence, the appellant denied that she committed any of the offences alleged in the defence or that she attempted to commit any of those offences. In particular, she denied that she threatened the respondent with a knife, denied that she attempted to avoid the taxi fare and denied any of the acts of contributory negligence alleged by the respondent. 2. In addition, the appellant alleged in her reply that: * the respondent, when he stopped the taxicab in Regents Street, assaulted her by grabbing her right arm and then preventing her from leaving the taxicab; * the respondent accelerated the taxicab and perpetrated a further assault by pushing her from the taxicab, causing her harm; and * the assaults by the respondent on the appellant constituted offences. The appellant relied on s 54(2) of the Liability Act alleging that the assaults referred to above that caused her injury constituted an offence or offences, such that s 54 of the Liability Act does not apply to the award of damages against the respondent. 1. The appellant's claim against the respondent is made under the Motor Accidents Compensation Act 1999 (NSW). In addition, she relies on the provisions of the Liability Act in the respects referred to below. 2. The evidence before the primary judge included photographs taken by security cameras in the taxicab, upon which the appellant placed considerable weight. She contended that the photographs portrayed the respondent pushing her out of the taxicab and invited her Honour to make a finding that the respondent pushed her out of the taxicab and that there was no knife as alleged by the respondent. Her Honour considered that to make such findings on the poor quality of the photographs would be to disregard repeated warnings by appellate courts about the dangers of relying on photographic evidence, particularly in relation to perspective and distance. Her Honour considered that the problems with the clarity and interpretation of the images were such that, where there was a conflict between the oral testimony of the witnesses and photographs, greater weight should be given to the oral evidence than might have been the case if clearer and more reliable images were available. 3. The appellant gave evidence before the primary judge, as did the three young women who were in the taxicab with her when the incident occurred. All were cross-examined. Several witnesses were called on behalf of the respondent, being residents of houses nearby, police officers and a hospital social worker who was present when the appellant made statements to her solicitor concerning the accident. However, the respondent did not give evidence himself, giving rise to the drawing of adverse inferences. [1] 4. The primary judge found that the appellant was a powerfully built young woman, six feet in height. Her evidence was that there was no attempt at robbery, no knife and that the respondent ignored her instructions to stop the taxicab but continued driving. She asserted that the other three young women alighted from the taxicab and that, without warning, the respondent accelerated the taxicab while pushing her out the open door of the taxicab. The evidence showed that a knife was found at the scene and was photographed by police. The knife closely matched the description given by the respondent of a knife that he said the appellant pulled from her pocket while sitting in the passenger seat of the taxicab. 5. The primary judge observed that the appellant gave evidence in circumstances of great difficulty, having regard to her serious injury and distress. However, her Honour considered that the conflict between the evidence given by the appellant in the witness box and what she had said in the presence of the social worker to her solicitor was sufficient to indicate that she was not a witness of truth. Her Honour accepted as a truthful witness one of the other three young women who made concessions and admissions where appropriate. Her Honour considered that the evidence of the other two young women passengers should be regarded with caution. 6. The primary judge found that the appellant arranged to meet her three friends at a place well away from their homes and arranged to make an unnecessary taxi trip. Her Honour found that they chose their clothing on the occasion for the purpose of disguising their appearance as far as possible, including hoods over their heads, caps, and clothing that was unnecessary for what was a warm and dry evening. They made a booking for a taxicab in a false name from an address with which none of them had any connection. The appellant and one of the other passengers were familiar with the destination given to the respondent as a place where a taxi robbery had been committed a month beforehand. They had both been present during that earlier robbery and knew that they could escape from the scene by using an underpass that would bring them close to the home of the appellant or one of her friends. Her Honour found that the appellant had a knife in her pocket and rejected the explanation that she gave to her solicitor about why she was carrying the knife. That explanation was not proffered in her oral evidence. 7. The primary judge found that all four passengers were sitting in the taxicab, about to leave it, when the appellant demanded money from the respondent. Her Honour found that the appellant showed the knife in her hand to the respondent and that a struggle followed between the appellant and respondent, in the course of which the appellant, because she was pushed away, fell from the taxicab with the knife still in her possession. At the time when the appellant fell from the taxicab, it had commenced to move again, the respondent apparently having lost control. The respondent screamed that the appellant had tried to rob him and had a knife and people then came from the nearby houses. One of the other passengers took the knife and threw it into nearby bushes. The appellant insisted that the police not be called. 8. The other three passengers tried to drag the appellant from the scene. When they could not do so, they ran away towards the underpass as a means of escape. They had three mobile phones from which they could have called for help from the scene but did not do so. They left the scene in such a hurry that one of the mobile phones was left behind and found by police. The primary judge held that consciousness of guilt was the only likely explanation for their leaving the appellant. 9. The primary judge was satisfied that the appellant was engaged in an illegal enterprise, namely, the commission of robbery involving the use of a knife. Her Honour was satisfied that the respondent was acting in self-defence and that no crime was committed by him. Her Honour observed that the incident in question happened over a few seconds, during which, given her findings as to the production of the knife, the respondent had no foresight of the possibility of injury and was merely seeking to fend off the knife. Her Honour considered that all of the evidence pointed to the respondent acting in self-defence. Her Honour rejected the appellant's contentions that any self-defence ceased when the respondent deliberately prevented her from leaving the taxicab. 10. The primary judge considered that the photographic evidence showed the respondent using his fisted arm to push against the appellant's right arm, which would have been holding the knife, not pushing her out of the taxicab, and that the appellant was turned towards the respondent, not turned away from him, as she claimed. Her Honour observed that, in all of the images in evidence, the respondent is clearly shown to be wearing his seatbelt. Her Honour considered there was no evidence of forethought or malice on the part of the respondent and the trip in the taxicab proceeded perfectly normally until the taxicab stopped. 11. The primary judge said that the central issue of fact was whether the appellant and her companions attempted to rob the respondent, with or without a knife, and, if so, what was the relationship between that act and the actions of the respondent resulting in the appellant's injury. Her Honour concluded that the there was no duty of care owed to the appellant in circumstances where the appellant was using a knife to try to rob the respondent and he was responding by trying to push her away or out of the taxicab. Her Honour considered that, if she was wrong in holding that the respondent did not owe the appellant a duty of care in those circumstances, her Honour was satisfied that there was no breach of that duty, given the circumstances in which the respondent, confronted with a knife by the appellant and with three other companions very close to the taxicab, put his foot on the accelerator while seeking to push the appellant away. 12. The primary judge addressed the general principles in s 5D of the Liability Act to the effect that a determination that negligence caused particular harm comprises two elements, namely, that the negligence was a necessary condition of the occurrence of the harm and that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused. Her Honour found that the taxicab had stopped in Regents Street, although the engine was still running, and three of the four passengers were in the process of alighting from the taxicab. But for the appellant demanding money from the respondent and pulling out a knife, the appellant would have alighted from the taxicab while it was still stationary. Her Honour referred to a contention on behalf of the appellant that the respondent should have realised that the appellant had changed her mind about robbing him and was getting out of the taxicab. Her Honour did not accept that the appellant ever deviated from her intention to rob the respondent, even after he started to accelerate the taxicab, because she did not give evidence to that effect. Her evidence was to the contrary, namely, that she was pushed from the taxicab. 13. The primary judge was not satisfied that the appellant had discharged the onus of proving, in accordance to s 5D(1)(a), that any negligence on the part of the respondent from moving the taxicab from park to drive, accelerating the taxicab and pushing the appellant away was a necessary part of the harm. Her Honour found that the appellant's commission of the offences was the dominant and immediate cause and that the respondent was responding to a threat of serious harm. Her Honour was also satisfied that, even if there was a breach of duty, the appellant failed to establish that it was appropriate for the respondent's duty to the appellant to extend to the resultant harm within the meaning of s 5D(1)(b) of the Liability Act. Her Honour considered that there were strong public policy considerations operating in relation, not only to conduct that may in other non-criminal circumstances amount to a breach, but also in a criminal context. Her Honour was satisfied that the case was one where policy considerations should operate to deny liability for harm that, in other circumstances, would have been held to have been caused by the respondent's breach of duty. 14. The primary judge referred to s 54 of the Liability Act, which relevantly provides that a Court is not to award damages in respect of a relevant liability if the Court is satisfied that the injury 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, that conduct contributed materially to the injury or to the risk of injury. However, s 54 does not apply to an award of damages against a defendant if the conduct of the defendant that caused the injury concerned constitutes an offence, whether or not a serious offence. For the purpose of s 54, a serious offence is an offence punishable by imprisonment for six months or more. The offences that her Honour found the appellant was engaged in satisfy that requirement. Her Honour considered that the conduct of the appellant fell directly within the description of armed robbery and that the conduct of the appellant in attempting to rob the respondent at knife point clearly satisfied the requirement of being a serious offence for the purpose of s 54. Her Honour also found that the respondent was not guilty of any offence. 15. The primary judge also referred to s 52 of the Liability Act, which relevantly provides that a person does not incur a relevant liability arising from any conduct of the person carried out in self-defence, if the conduct to which the person was responding was unlawful. Relevantly, a person carries out conduct in self-defence if, and only if, the person believes the conduct is necessary to defend himself or herself or another person and the conduct is a reasonable response in the circumstances as he or she perceives them. 16. Section 53 of the Liability Act relevantly provides that, if s 52 would operate to prevent a person incurring a relevant liability in respect of any conduct but for the fact that the conduct was not a reasonable response in the circumstances as he or she perceive them, a court is nevertheless not to award damages against the person in respect of the conduct unless the court is satisfied that the circumstances of the case are exceptional and, in the circumstances of the case, a failure to award damages would be harsh and unjust. The primary judge made no findings as to whether the circumstances of the case are exceptional. However, her Honour found that the denial of damages would be harsh and unjust. 17. The pivotal grounds of appeal relied upon by the appellant are that any illegal conduct on her part ceased when she attempted to alight from the taxicab while it was stationary and that the respondent intentionally pushed her out of the moving taxicab. I am not persuaded that those grounds are established. The primary judge made no error in reaching her conclusion that the appellant never wavered from her intention to commit the offence of robbery and her finding that the respondent did not intentionally push her out of a moving motor vehicle in circumstances other than in self-defence. I have had the advantage of reading in draft form the proposed reasons of McCallum JA for dismissing the appeal and agree with her Honour's reasons and proposed orders. 18. SIMPSON AJA: I agree with McCallum JA. ********** Endnote 1. See Jones v Dunkel (1959) 101 CLR 298. Amendments 14 July 2020 - 14 July 2020: HEADNOTE - "He Honour" to "Her Honour" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 July 2020