4 March 2020

Lorraine Brown and the Forgotten Provision

Brown v Logan City Council [2019] QSC 46 Mark O’Connor
Mark O'Connor Compensation Lawyer

An until recently forgotten section of the Queensland Criminal Code Act 1899 “(the Code”) has and will into the future cause unjust outcomes for injured Queenslanders unless repealed.

By way of background, the Civil Liability Act 2003 (“the CLA”) was passed by the Queensland Parliament as part of a raft of tort reform measures in response to Justice Ipp’s review of the law of negligence in Australia.

S45 of the CLA provides that a person cannot pursue a claim for damages which arises from harm suffered while the person was engaged in committing an indictable criminal offence, if that criminal conduct contributed materially to the suffering of the harm.

In effect, persons committing a serious criminal offence cannot complain if they are injured during the commission of the crime.

Sensibly, S45(2) gives judges a discretion, if, to not award damages, might operate “harshly and unjustly”.

If a judge exercises the discretion under s.45(2), then the damages awarded would be reduced by no less than 25% to take account of the injured person’s conduct.

At the same time as the CLA was introduced into Parliament it appears the legislature was unaware of a little-known provision hiding in the Code.

s.6(2) of the Code provides:

A person who suffers loss or injury in, or in connection with, the commission of an indictable offence of which the person is found guilty has no right of action against another person for loss or injury.”

Judges have no discretion regarding the application of this section.

S6 of the Code should have been repealed at the time of the passing of s45 of the CLA into law.

The perverse application of s.6 of the Code came to haunt a Ms Lorraine Brown last year.

Ms Brown on 30 January 2012 was involved in a car accident in Logan Village.

The road was a narrow rural road. The road did not have any marked centre line. Ms Brown drove around a bend with limited visibility. She drifted across the centre of the road and had a collision with a van travelling in the opposite direction. The accident was a violent one and both vehicles were written off. Ms Brown was injured.

After the accident, the local council installed a centre line and reflective devices and generally made that part of the road much safer. The remedial action by the Logan City Council was consistent with the corner of the road not being safe at the time of the accident.

Lorraine Brown was charged by police with dangerously operating a motor vehicle which would normally have been dealt with in the Magistrates’ Court. For unknown reasons, she made an application, which was successful, to have the prosecution dealt with on indictment in the District Court.

She pleaded guilty and was fined $750.

She subsequently brought legal action for damages for her injuries against the Logan City Council for its failures regarding the design of the roadway which contributed to the cause of the accident.

The Logan City Council brought a successful application in the Supreme Court and had Ms Brown’s action for damages for personal injury struck out relying upon s.6 of the Code even though her case against the council was otherwise likely meritorious.

There could be some perverse applications of s. 6 of the Code.

An extreme example would be as follows:

John is a 14-year-old boy and comes from a troubled background. There is no food in the family home and he is hungry. He decides to scale a ladder at night and force open an upstairs window at the house of his neighbour, Mr Jones, with the intention of raiding Mr Jones’ refrigerator.

John mistakenly believes Mr Jones is holidaying at his Byron Bay beach house.

Mr Jones observes John climbing the ladder.

Rather than calling out to John to go back down the ladder and to go home, Mr Jones decides to teach John a lesson.

Mr Jones waits until John is near the top of the ladder and then pushes it away from the house causing it and John to fall to the ground, rendering John a tetraplegic.

Although Mr Jones will likely face serious criminal charges, John, because of s.6(2) of the Code will be unable to pursue a claim for damages for the heartless and wilful harm which has been caused to him by Mr Jones which will lead John to suffer a lifetime of pain and suffering. This is because John was attempting to commit an indictable offence at the time he was injured.

The Queensland Government should repeal section 6 of the Code before a terrible injustice is done to another injured Queenslander.

To read the full judgement of Brown v Logan City Council [2019] QSC 46, click here.



Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).

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