SW v MK

SW v MK - [2019] NSWDC 242 - NSWDC 2018 case summary — Zoe

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.

[5]

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.

[7]

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.

[9]

The CCTV footage

The relevant extracts from the CCTV footage, as identified by the plaintiff in written submissions, are as follows: 1. 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. 2. 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). 3. 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. 1. 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). 2. 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. 3. 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. 4. Image 1877: This image shows the taxi has stopped on Regents Street with the motor still on but all the doors closed. 5. 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. 6. 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: 1. 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). 2. 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. 3. Image 1937: The plaintiff can no longer be seen. The taxi has accelerated to 27.9 km/hr with the defendant the only occupant. 4. 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: 1. The CCTV footage is "clear and unambiguous" (written submissions, paragraph 3.9). 2. 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). 3. 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. 4. 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)). 5. 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. 6. 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). 7. At no time on any of the images was the duress button pressed.
The defendant submits: 1. 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. 2. 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. 3. 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. 4. 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). 5. 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.

[10]

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.

[11]

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.

[13]

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).

[14]

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."

[19]

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: 1. 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). 2. The defendant was heard by many of the witnesses shouting that the plaintiff and her companions had tried to rob him, that she had a knife, and that he had been injured. This is clear from the statements of Senior Constable Beltrami (Exhibit 18, p 195), Mr Godfrey (Exhibit 18, p 287), Ms Viravong (Exhibit 18, p 298) and Ms Edgar (Exhibit 18, p 305). 3. The defendant was observed to be in a state of considerable distress. Mr Godfrey described him as "frightened and under stress" (T 806), by Ms Viravong as "agitated and distressed" (Exhibit 18, p 298), by Ms Edgar as "very shaken" (Exhibit 18, p 305), by Mr Vamvoukuis as "shocked" (Exhibit 18, p 312) and by several of the witnesses as shouting and screaming to call the police or for help.
Senior Constable Beltrami was given a Samsung mobile phone by Constable Hazzard. That and other information appears to have led to him attending premises at Ambarvale to speak to TJ. Following TJ being escorted to the police station, TC and SD attending the police station as set out in paragraph 15 of his statement. I note also the evidence of Senior Constable Kingston concerning the finding of the knife and his request for a description of the knife seen by the defendant. Senior Constable Kingston states that the length shown by the defendant was around the same length as the knife he had discovered in the bush. Both the knife and the mobile phone were marked as exhibits.
As is clear from the evidence of the plaintiff and the plaintiff's witnesses, the circumstances in which the plaintiff's friends left the scene is not in dispute; the explanations for them leaving the scene varied, as the summary of evidence above confirms. The credit of the plaintiff and of the witnesses called on her behalf is a significant issue, not only in relation to the circumstances in which the plaintiff suffered her accident, but also the explanation for the plaintiff's friends leaving the scene.

[21]

The Sidharta file note - Exhibit 13

The plaintiff gave a very different account of events to her solicitor in an interview at the hospital a few weeks later. The text of this interview was contemporaneously recorded by a member of the hospital staff, Ms Laura Sidharta and the text is as follows: "Progress Note SOCIAL WORK Laura Sidharta pager 45161 SW telephone Centrelink re: carer allowance/payment application and early release of superannuation application. SW able to get these forms delivered to SCH. SW accompanied mother and [the plaintiff] to meet with Solicitors Tom Goudkamp and James Goudkamp with case manager Miriam Poole. [The plaintiff]'s version of events: [The plaintiff] advised that she had smoked cannabis approximately 10 minutes prior to getting into the taxi. [The plaintiff] smoked approximately 1 stick (1 gram) between the four of them. [The plaintiff] stated that smoking cannabis makes her calm. She and her two friends T[redacted] and S[redacted] went to her other friend T[redacted]'s house to collect her. S[redacted] phoned a taxi using T[redacted]'s phone. Unsure if they told the taxi over the phone of their planned destination. They left T[redacted]'s home and was walking through a park/alley way. [The plaintiff] saw a kitchen knife on the ground and picked it up and put it in her jacket pocket. [The plaintiff] 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 ([the plaintiff] in the front seat, with T[redacted], S[redacted] and T[redacted] in the back). They informed the driver of their destination - Park Central. [The plaintiff] stated that she had headphones on and was listening to music. She said that the driver was giving dirty looks, looked creepy to them. [The plaintiff] could not hear much of the conversation as she had headphones in. As the driver pass their intended stop, [the plaintiff] told him to pull over. He kept driving. The driver eventually pulled over after being told to stop. T[redacted] and T[redacted] got out of the taxi. [The plaintiff] opened the door, took off her seatbelt, intending to get out of the taxi. [The plaintiff] advised that T[redacted] was going to pay the taxi driver. At this point, the driver grabbed hold of [the plaintiff]'s arm to prevent her from exiting the taxi. The driver has then accelerated the car and was driving up a hill. T[redacted]'s got dragged by the taxi as her jacket was caught in the door. [The plaintiff] believed that at this point, she was in the taxi on her own and was frightened. [The plaintiff] kept telling him to let her go 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. [The plaintiff] 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. [The plaintiff] did not know S[redacted] had been in the vehicle after her two other friends got out. It is believed that S[redacted] got out of the vehicle at some point as the vehicle was moving. SW and clinical psychologist spoke to mother Tonia individually re: [the plaintiff]'s routines and home and barriers to therapies. Laura Sidharta Social Worker Page 45161" Exhibit 18, p 324-323)
What the plaintiff is admitting in this interview is: 1. She entered the taxi carrying a knife. 2. She was able to describe it accurately as a kitchen knife, as this was the kind of knife found at the scene, suggesting that this knife was not one which the plaintiff had not seen before. Senior Constable Kingston (Exhibit 18 pp 175 and 178) and Senior Constable Feher (T 582 - 583) made it clear that they had been careful not to describe the knife to her. 3. She "pulled out" the knife when the driver came to a stop.
The plaintiff's explanation is that she lied to her solicitor in order to get her friends out of trouble, as she knew that they could be blamed for being her companions at the time. The plaintiff did not suggest she was lying to her solicitor to protect herself from criminal charges; her intention was to help her friends.
The inconsistencies between the evidence of the plaintiff in the witness box and in her conversation with her solicitor, like the inconsistencies between her evidence and that of at least two of her fellow passengers, are matters requiring careful analysis. One relevant tool for use in any such analysis is the issue of credit.

[23]

Failure to call the defendant

The defendant was not called to give evidence.
To which issues in the case would his evidence go, and what inferences should be drawn from his failure to give evidence? This is one of the main issues raised by the plaintiff (written submissions, paragraphs 4.6, 4.15 - 4.17, 7.13 - 7.14).
The plaintiff submits that his failure to do so "means the court has no evidence to contradict the evidence of the plaintiff and other passengers as to the intended destination of the taxi journey nor any explanation from the defendant to explain why he did not pull over and stop at the car park when directed to do so" (written submissions, paragraph 4.6). The plaintiff's submission is, however, that where there is any issue upon which the defendant would have been expected to have "contradicted" the evidence of the plaintiff or her witnesses, that evidence should be more readily accepted, for the reasons explained by Menzies J in Jones v Dunkel at 312.
Mr McIlwaine SC submits that this requires me to accept the plaintiff's evidence that the defendant pushed her out of the taxi while it was moving; as the defendant has given no evidence to contradict this, his failure to do so "supports a finding that no conduct of the plaintiff contributed materially to her injury or risk of injury" (written submissions, paragraph 7.14). The reasons why the defendant "prevented the plaintiff from exiting the taxi when he initially stopped in Regents Street and subsequently pushed her out of the taxi as he accelerated up Regents Street can only be explained by him" as "he has failed to give any evidence at the trial to do so" (written submissions, paragraph 7.14).
However, the first difficulty the plaintiff must face is that the plaintiff and passengers gave differing versions as to whether or not they planned to rob the defendant and whether there was a knife present to be used which was seen by the defendant. In addition, there is independent contemporaneous corroboration of certain parts of the evidence from witnesses at the scene, including evidence concerning the discovery of the knife. The defendant's evidence, in the context of these other sources of information, is of much less forensic value than Mr McIlwaine SC is prepared to admit.
The correct approach by a trial judge in proceedings where the defendant gives and/or calls no evidence is explained in King v Collins [2007] NSWCA 122 where the court noted that, to succeed, the plaintiff had to be believed on the relevant issues (at [46]). There are a number of helpful personal injury claim decisions applying these principles.
A good example is Lim v Cho [2018] NSWCA 145. The facts in that case were that the plaintiff leapt from a moving car being driven by his wife, apparently after an argument they had had. As was the case here, the plaintiff tendered statements made by the defendant to the police and Sackville AJA noted (at 10]) that the trial judge, Wilson SC DCJ, observed: "To now suggest that an inference adverse to the defendant ought to be drawn does not sit well with the plaintiff's election to incorporate the defendant's version of the accident as a part of his own case. The Court was referred in particular on this question to the decision of the High Court in Strong v Woolworths Limited (2012) 246 CLR 182 [at [53], [54]. In my view, there was nothing in the evidence called by the [appellant] which created an evidential burden in the sense of a provisional or tactical burden on the [respondent]. Further, by reason of the [appellant's] own adoption of the [respondent's] version, there is no scope for the drawing of any adverse inference.""
The appellant submitted that Wilson SC DCJ erred in failing to draw an inference adverse to the respondent by reason of her failure to give evidence. As is the case here, the evidence the respondent should have given was identified as being the way in which the respondent was driving the vehicle (for example, whether she had time to stop). Sackville AJA observed at [41]: "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." [Citations omitted]
Sackville AJA then applied that reasoning to the disputed issues of fact of the case: "[42] Mr Phillips was invited to identify any evidence which might suggest that more than an exceedingly brief time elapsed between the moment the appellant opened the door of the vehicle and the moment he jumped out. Had Mr Phillips been able to do so, it may have been permissible to infer from the respondent's failure to give evidence that the time between the two events was at the limits of the range suggested by the evidence. Whether that inference would have supported a finding that the respondent had sufficient time to attempt to grab the appellant and to apply the brakes is another question. But evidence indicating that there was any more than a few seconds between the two events might have strengthened the appellant's case. [43] Mr Phillips was not able to identify any such evidence. As his Honour indicated, the limited evidence adduced at the trial was consistent only with the finding that the lapse of time between the two events was no more than a very few seconds. For this reason the rule in Jones v Dunkel does not assist the appellant."
Both these circumstances apply in the present case. The defendant gave evidence in the Children's Court and was cross-examined, as well as a record of interview, all of which are before me. To a degree, all that Mr McIlwaine SC would be doing would be to put the same questions to him and to submit that his answers are untrue and should not be accepted.
However, using the line of reasoning adopted by Sackville AJA, there are significant topics about which the defendant's evidence is crucial, including self-defence issues, for which the test is subjective. Accordingly I propose to draw the inference.
Nevertheless, as is set out in more detail below, the findings of fact that I propose to make concerning the evidence in these proceedings have relatively little to do with the evidence of the defendant (or his failure to present himself for cross-examination) and rely substantially upon the evidence of the other passengers, the witnesses at the scene and concessions made by the plaintiff in cross-examination.
I also note that, although the plaintiff's tutor and mother, Mrs Tonia Waqabaca, was originally to be called as a witness (and remained outside the court accordingly), Mr McIlwaine SC announced at the end of the plaintiff's case that he no longer intended to call her and that she intended to be in court while the plaintiff was recalled to give evidence (T 530 - 531). The defendant asks me to draw a Jones v Dunkel inference.
Mrs Waqabaca could have given evidence of the information she received which led her to make the statements she did (concerning) at the scene of the accident. She was also present when the plaintiff made certain admissions about the knife to her solicitor. However, it is difficult to see how her evidence could have added anything of particular significance and accordingly I do not propose to draw the inference.

[24]

Conclusions of fact: the plaintiff was engaged in a criminal enterprise

The following areas of evidence are relevant: 1. The circumstances in which the taxi was booked; 2. The conduct of the occupants of the taxi; 3. The presence of a knife at the scene of the accident; 4. The conduct of the plaintiff and her companions after the accident occurred; and 5. The plaintiff's statements to her solicitor as set out in the document referred to as "The Sidharta file note" (Exhibit 13 of these proceedings).
The evidence demonstrates: 1. The plaintiff arranged to meet her friends at Startop Place, well away from their homes (T 188) and to make an unnecessary taxi trip in the sense that they had no need to travel by taxi given the location of the plaintiff's home. 2. They chose their clothing for the purpose of disguising their appearance as far as possible, including hoods over their heads and caps, in the form of clothing unnecessary for a warm and dry evening. 3. They made a booking in the false name of "Sarah" from an address in Startop Place with which they had no connection, using the phone of a relative. 4. The plaintiff and TJ were familiar with the destination as a place where a taxi robbery had been committed a month beforehand, as they had both been present during that earlier robbery. They knew they would escape from the scene of the robbery by using an underpass (T 502) which would bring them close to the plaintiff's or TJ's home (T 502). 5. The plaintiff had a knife in her pocket. I do not accept the explanation she gave to her solicitor about why she was carrying it; I note that this false explanation was not proffered in her evidence. 6. They were all sitting in (although about to leave) the taxi when the plaintiff demanded money from the defendant. I am satisfied the plaintiff showed the knife to the defendant as being in her hand. 7. There was a struggle between the plaintiff and defendant and in the course of that struggle the plaintiff, because she was pushed away, fell from the vehicle while still having the knife in her possession. 8. After the plaintiff fell from the taxi and it hit a tree, TJ took the knife and threw it in the bushes. As the taxi driver was screaming that the plaintiff had tried to rob him and had a knife and people were coming from their houses, the other passengers tried to drag the plaintiff from the scene. When they could not do so, ran away, in circumstances where consciousness of guilt is the only likely explanation for leaving the plaintiff. They ran towards the underpass as a means of escape and were familiar with it (T 234, 248). Further, despite having three mobile phones from which they could have called for help from the scene, they did not do so (T 236, 420 and 571). They left the scene in such a hurry that one of the mobile phones was left behind, and found by police. 9. The plaintiff insisted that the police not be called. 10. The admissions by TJ that they "all did it" (T 388) and all the admissions of SD, especially those concerning the knife.
I am satisfied that the plaintiff was engaged in an illegal enterprise, namely the commission of robbery involving the use of a knife, in circumstances satisfying all of the criteria in R v Henry (1999) 46 NSWLR 346 ("R v Henry").
The plaintiff (written submissions, paragraph 4.14) asks me to make findings that the defendant, not the plaintiff, has committed criminal offences, and in particular the following: 1. s 35(2) Crimes Act (reckless wounding or grievous bodily harm); 2. s 64 Crimes Act (causing grievous bodily harm by negligent act); and 3. s 59 Crimes Act (assault).
I was not addressed as to the standard of proof but my findings are the same whether or not s 140 Evidence Act 1995 (NSW) applies.
The plaintiff specifically notes that the defendant did not give evidence to contradict the plaintiff's version in circumstances where "if ever there was a case in which the defendant would be expected to give sworn evidence", this was it (written submissions, paragraph 4.16).
The plaintiff tendered the record of interview, transcript of evidence and police statement made by the defendant, and I note the approach taken in Lim v Cho (albeit in relation to a Jones v Dunkel finding) where such documents are tendered. This is not a case where the defendant's version of events is unknown. In addition, I have the benefit of the observations of the police, including the description of how "the victim" (i.e. the defendant) feared for his safety (Exhibit 18 p. 136).
I am satisfied the defendant was acting in self-defence and that therefore no crime was committed by him. I make the following specific observations: 1. As to the s 35(2) charge, the incident in question happened over a few seconds where, given my findings as to the production of the knife (even if only accidentally, as the plaintiff told her solicitor, let alone deliberately for the purpose of robbery, as I have found) the plaintiff had no foresight of the possibility of injury and was merely seeking to fend off the knife. Mens rea for this very serious offence would not be established on the facts. The same is the case for the ss 59 and 64 offences. 2. All of the evidence and in particular the evidence of SD points to the defendant acting in self-defence. I note SD acknowledges that she scratched the defendant's neck just before these events; it is acknowledged that he suffered a small wound. I do not accept the plaintiff's submissions (submissions in reply, paragraph 6) that "any self-defence plainly ceased when he deliberately prevented the plaintiff from leaving the taxi as seen in image 1913". My interpretation of image 1921 is that it shows the defendant using his fisted arm to push against the plaintiff's right arm (which would have been holding the knife), not pushing her out of the taxi, and that the plaintiff is turned towards the defendant, not turned away as claimed in the submissions in reply (referring to image 1913). (I would add that I am unimpressed submissions based on the knife scenario being put on the basis "for the purpose of argument only and without admission or concession" (submissions in reply, paragraph 6); there either was a knife in the plaintiff's hand or there was no knife at all, and the plaintiff's inability to be truthful about this issue is a major problem in terms of her credibility.) In addition, despite the claim to the contrary at paragraph 21 of the plaintiff's submissions in reply, the defendant is clearly seen in all the images to be wearing his seatbelt at all times. 3. There is no evidence of forethought or malice. The trip proceeded perfectly normally until the defendant stopped the car. While I note the plaintiff complains that the defendant did not stop where he was asked to do so, there is no evidence of complaint about this, or of this action being related to what happened after the taxi stopped. The most the plaintiff does in her conversation with her solicitor in the hospital is to refer to the driver giving "dirty looks" and being "creepy" while he was driving.

[25]

Pleading issues: particulars of negligence and "pushing"

Before dealing with the issues raised in the defence, I note that the defendant raised two preliminary issues of a summary nature in relation to much of the evidence. These were: 1. The plaintiff should be restricted to the particulars of negligence as pleaded and should not be permitted to conduct a case on the basis that the defendant pushed the plaintiff out of the moving vehicle; and 2. If the plaintiff's case is that she was pushed out of the moving vehicle, then that should be pleaded as an intentional tort (with liability consequences for the motor vehicle insurer) and not as a motor vehicle negligence claim: Dean v Phung [2012] NSWCA 223.
However, in New South Wales v Lepore [2003] HCA 4, the High Court said: "As Williams v Milotin makes plain, negligently inflicted injury to the person can, in at least some circumstances, be pleaded as trespass to the person, but the intentional infliction of harm cannot be pleaded as negligence. The appellants allege intentional trespasses to the person, not negligence. The appellants' claims founded on an allegation of a non-delegable duty to ensure that care was taken of them are, therefore, bound to fail." (Footnotes omitted)
There are additional problems in that "pushing" is asserted to be a trespass to the person or assault, not an act of negligence, and thus falling outside s 3B(1) Civil Liability Act 2002 (NSW).The relevant provisions applying to motor accidents are as follows: "(2) The following provisions apply to motor accidents: (a) Divisions 1-4 and 8 of Part 1A (Negligence), (a1) section 15B (Damages for loss of capacity to provide domestic services), except in relation to a motor accident to which the Motor Accident Injuries Act 2017 applies, (b) section 15C (Damages for loss of superannuation entitlements), except in relation to a motor accident to which the Motor Accident Injuries Act 2017 applies, (c) section 17A (Tariffs for damages for non-economic loss), (c1) section 18(1) (in its application to damages for any loss of the kind referred to in section 18(1)(c)), (d) Division 7 (Structured settlements) of Part 2, (e) Part 3 (Mental harm), (f) section 49 (Effect of intoxication on duty and standard of care), (g) Part 7 (Self-defence and recovery by criminals), (h) Part 8 (Good samaritans). (3) The regulations may exclude a specified class or classes of civil liability (and awards of damages in those proceedings) from the operation of all or any specified provisions of this Act. Any such regulation may make transitional provision with respect to claims for acts or omissions before the commencement of the regulation." (Emphasis added)
Cases where an injury occurs because a driver pushes a passenger from a vehicle are exceedingly rare. In the only decision with such facts that I was able to locate, Nielson v Willing [2001] WADC 15, the issue was not explored and negligence was assumed.
However, deliberate acts by motorists causing injury sometimes come before the courts. In The Nominal Defendant v Cordin [2017] NSWCA 6 the plaintiff brought a claim for injury after he was "shunted from behind" (at [2], [11], [139]) by an unknown vehicle. Although the appeal was allowed (on grounds not relevant to these proceedings) the claim for negligence proceeded notwithstanding the plaintiff's claim that his accident arose from a deliberate act.
In practical terms, liability for negligence in relation to motor vehicle driving arises from the manner of driving of the vehicle. The plaintiff's injuries were not sustained from being pushed but because the vehicle was moving. The fact that the defendant was driving the taxi at the time she was pushed was the direct result of her injuries. In those circumstances, this submission must fail.
A more serious difficulty is the failure of the plaintiff to plead and particularise the act of pushing her out of the vehicle. The bringing of an unparticularised case and/or raising of an unparticularised claim is effectively trial by ambush: Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116. Nevertheless, the reality is that most particulars in personal injury actions (such as "failure to exercise due and proper care") often display a phatic quality that appears intended to be as broad as possible in order to cover every possible contingency.
The particulars in this case (ranging from "driving at a speed which was excessive in the circumstances" to "failing to slow down or stop to avoid running over the plaintiff") bear almost no relationship to the evidence. However, this is often the case in personal injury proceedings and to allow the claim to fail for such a reason, at such a late stage of the proceedings, is inappropriate. That is all the more the case here as a Reply which was filed on 19 November 2018 particularises the conduct in question and describes it as an assault.
Mr Deakin QC submitted that if assault had been particularised, the motor vehicle insurer may not have been at risk, and drew my attention to the "tactical burden" in Nguyen v Tran [2018] NSWCA 215 at [54]-[56].
However, the defendant has been on notice of there being allegations of assault at least since the Reply was filed, and elected not to take the issue further before trial. Applying the principles set out in ss 56 - 62 Civil Procedure Act 2005 (NSW) and the fresh step rule, it is too late to do so at the trial. Accordingly, this basis for challenge to the plaintiff's claim must fail.

[27]

Duty of care

The plaintiff notes that the driver of a vehicle is under a general duty to a passenger to exercise reasonable care and skill in the management of the vehicle and is liable if the passenger is injured as the result of the driver's lack of care: Imbree v McNeilly; McNeilly v Imbree (2008) 236 CLR 510; [2008] HCA 40 at [4], [6] (Gleeson CJ); at [75]-[77] (Gummow, Hayne and Kiefel JJ).
In most motor vehicle cases, the scope and content of the duty of care requires no more than a general statement of requiring the exercise of reasonable care. However, cases that fall outside the recognised relationships giving rise to a duty of care a greater degree of specificity is needed in formulating the content of any duty that may be owed, as Sackville AJA pointed out in Lim v Cho, accepting that a driver did not owe a duty of care to a passenger who leapt out of the car.
Similarly, a driver was so terrified by threats made to her and malicious damage to her vehicle that she was held to owe no duty of care to the boyfriend who stood in front of the car intimidating her: Cusack v Stayt [2000] NSWCA 244 at [28]. Heydon JA said that this took the facts outside the scope of the duty of care: "[25] None of the general principles commonly used in identifying the existence of a duty of care in relatively normal circumstances apply here. There was no special relationship between the parties or between the defendant and anyone else giving rise to any assumption of responsibility by the defendant for the plaintiff's safety. Their quarrelling had gone well beyond any stage when there was any consensual understanding between them about anything. There was no peculiar vulnerability in the plaintiff, rather it was the defendant who was vulnerable to the plaintiff's campaign of threats and violence. There was no actual reliance, and there could have been no reasonable reliance, by the plaintiff on the defendant to avoid injuring him. Indeed, he invited her to do so. While a sober driver in the defendant's position who had not been upset by the plaintiff might be said to be in a position of control, the defendant in her intoxicated and terrified condition was to the plaintiff's knowledge not in a position of control. [26] So far as the existence or extent of duties of care are to be controlled by policy considerations, there are none which favour the recognition of liability and some which point against it. To use the words of Toohey J in Gala v Preston (1991) 172 CLR 243 at 291, the law: " … gives effect to the view seen as reflecting prevailing community standards of the person who is injured by participating in conduct which has been identified by the criminal law as inimical to society should not be entitled to a compensation the civil law ordinarily provides." It does not seem just that that section of the community which owns cars and pays premiums for compulsory third party insurance should have to bear the consequences of the plaintiff's conduct. [27] Orally the plaintiff advanced an argument in the alternative to this primary argument that the ordinary duty of care resting on the defendant was never changed or suspended. That alternative argument was that even if the duty of care had been suspended while the plaintiff was threatening the defendant, by the time she had driven to the closed gate, reversed and hit the wall, and struck the plaintiff on the first occasion, a sufficient break had arisen between his earlier conduct and her later conduct in hitting him, causing serious injury. The period of time involved must have been very short. There was no time for the defendant's agitation to resolve. In my judgment, what happened was part of one connected set of circumstances. [28] In my opinion the relationship of the parties to which the plaintiff had substantially contributed was not one in which the defendant owed the plaintiff any duty of care."
While Mr McIlwaine SC submitted that the general duty needed no further specificity, I consider that the problem identified by the Court of Appeal in Lim v Cho is one which occurs here. When that greater degree of specificity is sought, the question of the attempted robbery and the time for response by the defendant immediately become apparent as being relevant to the issue of duty.
As is set out in more detail below, these principles receive special legislative consideration in relation to s 52 of the act. In Miller v Miller [2011] HCA 9; 242 CLR 446 at [16], the tension between the illegal act and the negligent act was described as follows: "Secondly, and more fundamentally, the issue that is presented by observing that a plaintiff was acting illegally when injured as a result of the defendant's negligence is whether there is some relevant intersection between the law that made the plaintiff's conduct unlawful and the legal principles that determined whether the plaintiff should have a cause of action for negligence against the defendant. Ultimately, the question is: Would it be incongruous for the law to proscribe the plaintiff's conduct and yet allow recovery in negligence for damaged suffered in the course, or as a result, of that that unlawful conduct?"
The Court went on to say: "64. As the plurality in Imbree said (145): the conclusion that defendant owed the plaintiff no duty of care is open in a case like Joyce if the drunken driver cannot be expected to act sensibly... But as is implicit in what was said in all three cases (Joyce, Smith v Jenkins and Imbree) the question whether A owes B a duty to take reasonable care is not to be answered by reference only to whether A was the driver of and B a passenger in a motor vehicle. A duty of care arises from the "relations, juxtapositions, situations or conduct or activities." [147] in question. All aspects of the relations between the parties must be considered".
As to duty, the defendant submits that the law would not impose a duty of care in circumstances such as the present, as the threatened driver could not be expected to act sensibly, given such life threatening conduct by the plaintiff.
The defendant submits that the following facts reinforce the conclusion that no duty of care arose: 1. The close juxtaposition of the plaintiff in the front seat with a lethal weapon, combined with the threat to the defendant posed by the passengers in the rear seat, two of whom he believed to be male. Three of the four girls were tall and strong. The plaintiff was six feet tall and strongly built. 2. The conduct and activities of the plaintiff in demanding money and brandishing a knife in close proximity to him, created a frightening situation for the driver, confined as he was by his seatbelt and with no effective means of escape available to him. 3. The terrifying situation with which he was confronted was heightened by the action of SD in reaching forward from the back seat and inflicting a wound on his neck. He was not only required to deal with a threat in the area of the front seat, but he could not be confident that those in the back seat were not going to come to the assistance of the plaintiff even more than they did, when he started to struggle with the plaintiff. 4. The location of the vehicle in a darkened street where there was parkland.
In the circumstances of this accident involving serious acts of illegality on the part of the plaintiff and her friends and as a matter of public policy, Mr Deakin QC submits that whether or not the defendant "would have taken greater care in driving off" (Abdallah v Newton (1998) 28 MVR 364 at 366) should be seen in the context of the illegal enterprise, split second timing and the defendant's state of fear. Accordingly, any duty of care otherwise owed to the plaintiff as a passenger in the taxi, is not available to her: Miller v Miller at [64].
As set out above, I do not consider that there was a duty of care owed to the plaintiff in circumstances where I am satisfied that the plaintiff was using a knife to try to rob the plaintiff and he was responding by trying to push her away or out of the vehicle.
If I have erred, however, in holding that the defendant did not owe her a duty of care in those circumstances, I would be satisfied that there was no breach of that duty given the circumstances where the defendant, confronted with a knife by the plaintiff and with three other participants very close to the taxi, put his foot on the accelerator while seeking to push the plaintiff away. I set out my reasons for this finding, noting not only the common law principles and statutory provisions, but also the applicability of s 54.

[28]

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.

[29]

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: 1. 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 2. 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.

[33]

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.

[37]

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.

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