Late one evening on a quite country road, 2 mates were out driving in 2 separate cars and having some fun and doing some doughnuts, when one thing led to another and they started to race. In the course of the race one of the drivers lost control of his car, the car left the road and he hit a tree. His front seat passenger was injured and claimed compensation saying that the driver was driving negligent in driving way too fast. She said that she had asked the driver to slow down and that she was the innocent victim of his reckless driving.

The driver argued that she was a willing participant in the race so he didn’t owe her a duty of care.

The passenger argued that there was no “race”: there was no starting line; there was no finish line; there were no race rules, therefore she could not be a participant in an illegal street ‘race’.

The Court said that the word “race” should be given its ordinary meaning and can apply to an impromptu or unplanned contest between two drivers and as such there was no doubt that the accident happened in the course of a “race”. That finding was important because to race on public road is illegal therefore what they were doing when she was injured was illegal. As a general principle a Court will not allow a person to claim compensation if they were injured while doing something illegal. But the passenger said that she had asked the driver to slow down and to be let out of the car therefore her consent to participate had ended when she asked to be let out. The Court disagreed and found that she had not asked the driver to slow down or to let her out and therefore she had participated in an illegal enterprise. In those circumstances a driver does not owe a duty of care to a passenger and she lost her case.

On reading this case it seems to us that the case was lost when the court found that the passenger’s evidence was unreliable. It seems that when the passenger gave her evidence she was evasive, refused to answer some questions put to her under cross-examination, and at one point simply left the room. We wonder whether the outcome would have been different had her evidence been found to be reliable. It is arguable that had she been a good witness and if the Court had accepted her evidence that she had asked the driver to slow down and then to be let out,  that it would have been open to the Court to then find that she was not a willing participant in the race and she may have won her case and go paid compensation for her injuries. The case is salient lesson to be prepared before you give your evidence, and to give your evidence in a frank and candid and open and honest manner.

(Taylor v Hall [2020] NSWDC 321)