A boy who suffered brain damage in a car crash cannot sue the driver, as the pair were equally involved in stealing the car, the Supreme Court has ruled.
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The boy was 14 years old when he hopped in the front seat of a stolen Toyota Hilux, driver by a 16-year-old and with two other passengers in the back.
None of the boys wore seatbelts, and when the car crashed into a light pole in the Townsville suburb of Aitkenvale the 14-year-old suffered severe head injuries.
The boy now needs 24-hour care, and the case against the driver was brought by his carer.
However Justice Martin Daubney said the boy was jointly complicit in the offence of illegally using a vehicle, and on that basis the driver did not owe him a duty to take reasonable care.
"He was an active participant in the actual stealing of the vehicle, and went along for the 'joyride'," Justice Daubney said.
"If he had not assisted in stealing the car and continued to participate in its unlawful use, he would not have faced the risk of the harm which he suffered."
According to evidence from police and testimony from the driver and one of the backseat passengers, on the evening of February 7, 2013 the four boys planned to steal a car and went hunting for a vehicle.
They found the Toyota Hilux with the keys in the ignition, got in and went for a short drive before the car crashed.
"(The driver) said that when he got to the Gulliver Street intersection he was travelling at a speed of 80-85km/h," the justice wrote.
"He said he was looking at the speedometer when he lost control of the vehicle. He said he was going so fast because he was 'in shock' and 'didn't know what to do either'."
One of the back seat passengers testified at least two of the boys - it was unclear whether this included the plaintiff, the judge said - had shouted at the driver to slow down.
Counsel for the plaintiff argued this meant the boy had withdrawn from the illegal enterprise just before the accident occurred, but Justice Daubney said there was not enough evidence to support that claim.
"He did not ask to be let out of the car ... On the plaintiff's best case, he did nothing more than yell at the defendant to slow down," he said.
"That was, at highest, a request for the defendant to stop speeding, thereby engaging in reckless or dangerous driving.
"But it was neither an express nor a tacit communication of withdrawal from the joint illegal enterprise of unlawful use of the vehicle.
The defendant also said the plaintiff himself was negligent for failing to wear a seatbelt.
In September 2015 Dr Johnn Olsen reviewed the circumstances of the cras, including the plaintiffs injuries, and said he thought there was "almost no possibility" of the plaintiff sustaining those injuries had he been wearing the seatbelt.
Justice Daubney said the plaintiff had paid "a very heavy price for his involvement in that criminal conduct", but the driver did not have a duty of case and so was not liable for damages.
