VIC CTP: Supreme Court of Victoria considers the scope of the Transport Accident Commission’s liability to indemnify drivers – RBK v Montague [2022] VSCA 183

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.