Pursuant to s 94(1)(a) of the Transport Accident Act 1986 (VIC) (‘the Act’), the Transport Accident Commission (TAC) is liable to indemnify “the owner or driver of a registered motor vehicle in respect of any liability in respect of an injury or death of a person caused by or arising out of the use of the motor vehicle in Victoria or in another State or in a territory”.  

In RBK v Montague, the Supreme Court of Victoria considered the proper meaning of the words ‘caused by or arising out of the use of the motor vehicle’.  

Background

In early January 2012, the Applicant was provided heroin by the First Respondent, rendering her unconscious in the back seat of her vehicle. The First Respondent then drove the vehicle and abandoned it, leaving the Applicant unconscious in the back seat of the locked vehicle. Two days later, the Applicant was found, still unconscious, by her parents. The Applicant alleged that she suffered personal injuries as a result of being exposed to high temperatures in the vehicle, including paraplegia, a hypoxic brain injury, cardiac arrest, bilateral pulmonary emboli, heatstroke, and organ failure.  

The Applicant commenced a proceeding in the Trial Division in December 2019.  

Decision in Trial Division

On 28 June 2021, the trial judge dismissed the Applicant’s claim for damages, concluding that the Applicant had not established that the TAC was liable to indemnify the First Respondent pursuant to s 94(1)(a) of the Act.  

Decision on Appeal

The TAC submitted on appeal that the trial judge was correct when he found that the Applicant’s injuries arose ‘because she was unconscious and immobile inside the vehicle which had been used as the receptacle in which she was injected with heroin’. Further, it submitted that the trial judge was also correct in concluding that the use of the vehicle as a place in which to inject the Application with heroin was not the normal use of the vehicle as a motor vehicle. 

The Applicant’s case was that her injuries arose out of the First Respondent’s use of the vehicle in driving it to the place where he parked it locked, exposing the Applicant to excessive heat and causing her injuries. The Applicant also made alternative submissions to the effect that her injuries arose out of her continued use of it as a passenger from the time it was parked until she was discovered.  

In the Court of Appeal’s view, the relevant principle for consideration was whether there was a “causal or consequential relationship between the use of the vehicle and the injury, but the search is not for a single, predominant or main cause.” The Court opined that the words ‘arising out of’ operated to expand the scope of the relationship between the use of the vehicle and in the injury, rather than just being a synonym for ‘caused by’.  

Relying on the above construction of s 94(1)(a), the Court of Appeal ultimately opined that the TAC was liable to indemnify the First Respondent, as the Applicant’s injuries had arisen out of their use of the vehicle in driving it and parking it, resulting in the Applicant being exposed to excessive heat, leading to her injuries. 

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