Lifetime Care and Support Authority of NSW v Foster
[2024] NSWPIC 363
•8 July 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Lifetime Care and Support Authority of NSW v Foster [2024] NSWPIC 363 |
| APPLICANT: | Lifetime Care and Support Authority of NSW |
| RESPONDENT: | Andrew Foster |
| MEMBERS: | Belinda Cassidy Alexander Bolton Susan McTegg |
| DATE OF DECISION: | 8 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); Motor Accidents (Lifetime Care and Support) Act 2006 (LTCS Act); eligibility of injured person to participate in Lifetime Care and Support Scheme (the scheme); claimant injured when he collided with the rear of a parked utility vehicle; vehicle was parked lawfully with hazard lights on and had been in position for a few minutes; insurer submitted vehicle had no causative role in the accident and vehicle was not in use or operation at the time; LTCS Act imports definition of motor accident from MAI Act into the scheme; QBE v Abberton, QBE v Lay referred to; May v TAC, GIO v King, Lamont, Hodkinson and Jorgenson v Motor Accidents Board, TAC v Hoffman & Ors, and RBK v Montague considered; Dickinson v Motor Vehicle Insurance Trust cited; section 1.9 of the MAI Act is not a gateway of governing provision for the LTCS Act; the definition of use or operation of a vehicle includes the parking of a vehicle and does not require the vehicle to be in active use at the time of the accident; the “something” that causes the injury is “an incident or accident involving the use or operation of a vehicle” which is a single concept; use or operation (as a part of the single concept) does not have to cause the injury on its own; “involving” replaces the former phrase of “arising out of the use of” and has a wide reach; if a strict causal nexus was required between use or operation and the injury the Panel would have found the vehicle was in use at the time of the accident; Held – claimant was injured in a motor accident within the definition of the LTSC Act as he was injured in a motor vehicle within the meaning of the MAI Act. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under section 20(4) of the Motor Accidents (Lifetime Care and Support) Act 2006 The Panel certifies that, on 15 March 2021, Mr Foster sustained a motor accident injury within the meaning of section 7 of the Act. |
STATEMENT OF REASONS
INTRODUCTION
Accident
At about midday on 15 March 2021, Andrew Foster was riding his bicycle along Mona Vale Road, St Ives when he collided with the rear of a parked utility. While Mr Foster does not now remember the accident, he submits that he may have collided with the rear of the parked vehicle due to the actions of another vehicle driving on Mona Vale Road, St Ives, at the time.
Mr Foster was 54 years of age at the time of the accident. He is now 57 years of age.
Mr Foster was catastrophically injured in the accident sustaining a traumatic brain and spine injury, facial lacerations including a broken nose and a crush injury to his right hand.
Motor accident claim against the Nominal Defendant
On or about 7 April 2021, Mr Foster’s wife Dianne Foster made a claim for statutory benefits on behalf of her husband under the Motor Accident Injuries Act 2017 (the MAI Act). As she did not know the identity of any vehicle involved in the accident, the claim was made against the Nominal Defendant.
NRMA was appointed to act as agent for the Nominal Defendant in accordance with s 2.36 of the MAI Act.
NRMA accepted the claim for statutory benefits and began paying Mr Foster his weekly income and treatment and care benefits. NRMA continued to pay Mr Foster his statutory benefits beyond the first 26-week period while NRMA investigated the claim.
On 28 April 2022, NRMA denied liability on the basis Mr Foster’s accident was caused wholly or mostly by his fault. NRMA said there was no unidentified vehicle which caused or contributed to the collision with the parked car.
Motor accident claim against AAMI
The parked vehicle which Mr Foster had collided with was owned and driven on the day by Mark Bull. It had compulsory third party motor vehicle insurance with AAMI.
On 9 June 2023, Mr Foster, through his solicitors, made a claim against AAMI on the basis that “his collision with your client’s stationary vehicle is a motor accident.”
On 26 July 2023 AAMI wrote to Mr Foster rejecting the claim noting that a claim had been made against the Nominal Defendant and it “is the relevant insurer and has accepted management of that claim.”
Application to Lifetime Care and first referral to the Commission
On or about 28 April 2021, Ms Foster completed an interim application form for participation in the Lifetime Care and Support Scheme (LTCSS).
On 29 July 2021, the Regional Manager at the Lifetime Care and Support Authority (the Authority) wrote to the claimant rejecting his application on the basis:
(a) Mr Foster “did not meet the eligibility criteria”;
(b) the Authority was “unable to determine that your accident and subsequent injuries were caused by a motor accident”, and
(c) the police report and NRMA’s investigation report “were unable to confirm that a motor vehicle accident caused you to impact with the parked vehicle.”
The Nominal Defendant, an “interested person” in the above decision, disputed the decision and on 7 June 2022 the Authority referred the dispute to the Personal Injury Commission (the Commission) pursuant to the Motor Accidents (Lifetime Care and Support) Act 2006 (the LTCS Act). The Commission allocated the dispute to a Panel of three general members on 20 July 2022 and directions were issued by the Panel to the claimant and the Authority.
NRMA withdrew its disputation of the Authority’s decision to exclude Mr Foster from its scheme and on 25 July 2022 the Commission was advised and finalised the proceedings.
Further referral to the Commission
Mr Foster’s solicitors wrote to the Commission on 7 September 2023 asking that the referral made by the Authority on 7 June 2022 proceed. On 3 November 2023 Ms Dargan of the Crown Solicitor’s office wrote to the President of the Commission querying whether the proceedings were to be re-opened.
On 16 November 2023, the Commission responded advising the claimant and the Crown Solicitor that a fresh application would need to be made. A fresh referral was made to the President of the Commission by the Crown Solicitor on behalf of the Authority on 20 December 2023. A bundle of documents accompanied the referral. The Commission processed the referral and referred the proceedings to the current Panel.
THE PROCEDURAL HISTORY
For ease of reference, for the remainder of these reasons, Mr Foster will be referred to as “the claimant”.
First directions
The Panel confirmed receipt of the Authority’s 201 page bundle of documents and directed the claimant to provide any additional documents. Directions were issued to the claimant and the Authority on 22 December 2023.
The Panel noted the Nominal Defendant was an interested person and that the Authority was to provide copies of the direction to the Nominal Defendant. No directions were made to inform AAMI at that time.
The Panel informed the parties that the Panel would be meeting on 5 February 2024.
First preliminary conference and report
The Panel conducted a teleconference with the parties on 5 February 2024. Mr Poulden appeared for the claimant and Ms Dargan appeared for the Authority. The application, the factual background and the legislation were discussed with a view to narrowing the matters in dispute and identifying the “real issues in the proceedings.”
The Panel reported to the parties indicating that the following matters did not appear to be in dispute:
(a) the parked vehicle had motor vehicle insurance cover with AAMI (and that AAMI was possibly a further interested person);
(b) fault on the part of the owner or driver of the parked car (or Mr Foster) is not relevant when considering the question of Mr Foster’s entitlement to entry into the LTCSS;
(c) Mr Foster’s injuries were caused by the impact of his body with the tray of the parked vehicle;
(d) Mr Foster’s collision with the parked car was an “incident or accident” involving a vehicle (the parked car);
(e) Mr Foster’s injury was a result of and was caused during “a collision … with the parked vehicle”, and
(f) in relation to the unidentified vehicle, if the Panel was satisfied there was an unidentified vehicle and that Mr Foster took action to avoid colliding with it, and then collided with the parked car, his injury would come within the definition of a “motor accident injury”.
In terms of the unidentified vehicle, the Panel identified the following matters in dispute:
(a) was there an unidentified vehicle? and
(b) did Mr Foster collide with the parked car because of anything done or not done by the owner or driver of that unidentified vehicle?
In terms of the parked vehicle, the Panel identified that the following matters were in dispute:
(a) did the incident or accident involve the use or operation of the parked motor vehicle? The Panel notes that the definition of use or operation includes the “parking" of the vehicle.
(b) does Mr Foster’s injury have to be caused by the use or operation of a motor vehicle or does the injury have to be caused by an incident or accident involving the use or operation of a motor vehicle?, and
(c) is there any real difference between those two approaches and is there any significance to the word “involving”?
The Panel discussed with the parties the two vehicles and the parties agreed that the Panel should first consider the accident involving the parked vehicle before considering the involvement of the unidentified vehicle. The parties agreed that if the definition of motor accident injury was satisfied by considering the involvement of the parked vehicle only, there would be no need to further consider the existence and involvement of the unidentified vehicle. Significant costs in terms of investigations and expert witnesses would likely be saved if that approach was taken.
The Panel advised the parties that in its view, the onus of satisfying the Panel that Mr Foster’s injury is a motor accident injury entitling him to entry into the LTCSS lies with him.
The Panel issued directions to the parties for submissions on the relevant legislation and case law. The claimant’s submissions were due on 8 March 2024 and the Authority’s on
5 April 2024.
Panel only preliminary conference and further report
The Panel was due to meet on 8 April 2024 however, as the claimant’s bundle of documents and submissions were received late on 13 March 2024 and the Authority’s were not received until 9 April 2024, the Panel deferred the conference and instead met on 16 April 2024. The Panel reported to the parties on the same date.
The Panel requested additional submissions:
(a) from the claimant addressing s 1.9(1) of the MAI Act raised by the Authority in its submissions and
(b) further submissions from the Authority as to a factual scenario posed by the claimant in his submissions (had the driver been sitting in the car at the time of the collision).
Further steps
Both parties provided additional submissions and the Panel met to consider them. The Panel also considered the issue of costs and sought submissions from both parties. On 4 July 2024 the Panel was advised the parties had agreed to the sum of costs to be paid to the claimant.
LEGISLATIVE HISTORY AND BACKGROUND
The Lifetime Care legislation
The Motor Accidents (Lifetime Care and Support) Act NSW 2006 will be referred to as the LTCS Act in these reasons.
Section 4 provides for the application of the LTCS Act to certain motor accidents:
(a) the motor accident must have occurred after the scheme commenced (s 4(1));
(b) the motor accident must have occurred in New South Wales s 4(2);
(c) the motor vehicle involved must have had “motor accident insurance cover for the motor accident …” s 4(3), and
(d) the Act applies, “whether or not the injury was caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle or of any other person and so applies even if the injured person was at fault (whether as owner or driver of the vehicle or otherwise)” s 4(4).
An injured person’s ability to access the scheme involves consideration of the following matters as set out in s 7:
(a) medical criteria relevant to the nature and extent of the injury as set out in the LTCS Guidelines;
(b) satisfying the s 4 criteria, and
(c) satisfying the definition of a “motor accident injury”.
The LTCS Act provides a definition in s 3 as follows, “motor accident injury means injury caused by a motor accident.”
There is no definition of “motor accident” in the LTCS Act. Section 5 however provides that, “words and expressions used (but not defined) in this Act have the same meanings as in the Motor Accidents Compensation Act 1999” (the MAC Act).
The definitions to be applied
The LTCS legislation was passed in 2006 at the time when the MAC Act was the legislation governing the compulsory insurance of vehicles in NSW and the compensation of persons injured in motor accidents in NSW. Since that time, the Parliament passed the MAI Act which provided a newer system of compulsory insurance of vehicles and a new scheme for the payment of benefits (on a not-at-fault basis) and compensation to persons injured in car accidents on or after 1 December 2017.
Schedule 4 part 2 cl 5 of the MAI Act provides that:
“A reference to the Motor Accidents Compensation Act 1999 or the Motor Accidents Act 1988 in any Act (other than in this Act), in any instrument made under any such Act or in any document is to be read as including a reference to this Act, unless the regulations or the context otherwise requires.”
There is nothing in the regulations that the Panel has been taken to which might suggest the reference to the MAC Act in s 5 of the LTCS Act should prevail. The context suggests it should not, as the MAI Act (and its definition of motor accident) applies to Mr Foster’s claims made under that Act and it would appear somewhat perverse for the previous legislation to apply in those circumstances.
The Panel notes the definitions are the same, however the Panel will refer to the MAI Act provisions in these reasons because the Panel is of the view that Act should apply.
Definitions are found in s 1.4 of the MAI Act. Of relevance to the current dispute is the following definition of “motor accident”:
“… an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during -
(a) the driving of the vehicle, or
(b) a collision, or action taken to avoid a collision, with the vehicle, or
(c) the vehicle’s running out of control, or
(d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.”
Use or operation of a motor vehicle is also defined in s 1.4 to include:
(a) the maintenance or parking of the vehicle, or
(b) in the case of a motor vehicle that is not a trailer—the use or operation of a trailer attached to the motor vehicle and a trailer running out of control having become detached from the motor vehicle towing it, or
(c) in the case of a motor vehicle that is a tow truck—the use or operation of an uninsured motor vehicle that is being towed or carried by the tow truck.
Historical provisions
In order to fully understand the submissions from the parties and the cases referred to, the Panel considers it appropriate to include a short summary of the motor accident compensation schemes and the relevant definitions which have prevailed in New South Wales over time.
The Motor Vehicle (Third Party Insurance) Act 1942 NSW provided a scheme of compulsory insurance and a scheme of common law damages assessment based on fault and death or injury “caused by or arising out of the use of” motor vehicles.
On 1 October 1989, after the short lived, no fault Transcover scheme, the Motor Accidents Act 1988 NSW came into effect. It included the following definitions:
(a) motor accident - “an accident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle which causes the death of or injury to a person”.
(b) injury – “personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during:
(i)the driving of the vehicle, or
(ii)a collision, or action taken to avoid a collision, with the vehicle, or
(iii)the vehicle’s running out of control, or
(iv)such use or operation by a defect in the vehicle…”
When passed in 1999, the Motor Accidents Compensation Act was also a fault-based scheme and contained:
(a) a definition of motor accident that was identical to the previous version with the addition of the words “or incident” after the word accident;
(b) the same definition of injury, and
(c) a definition of use or operation of a motor vehicle which included:
(i)the maintenance or parking of the vehicle, or
(ii)in the case of a motor vehicle that is not a trailer—the use or operation of a trailer attached to the motor vehicle and a trailer running out of control having become detached from the motor vehicle towing it, or
(iii)in the case of a motor vehicle that is a tow truck—the use or operation of an uninsured motor vehicle that is being towed or carried by the tow truck.
In 2006, the scheme of compensation and benefits to people injured in motor accidents in New South Wales altered with the provision of limited no-fault or not-at-fault benefits including:
(a) under Part 1.2 Division 1, the “blameless accident” provisions;
(b) under Part 1.2 Division 2, the recovery of a “special entitlement” to limited damages for children;
(c) under Part 3.2 - the early payment of $5,000 towards treatment and loss of earnings, and
(d) the establishment of the LTCSS.
Because of the no-fault or not-at-fault provisions in these 2006 amendments, the definition of motor accident was amended to remove the word “fault”. The definitions of “injury”, “motor accident” and “use or operation” in the MAI Act are the same as the provisions enacted in the 2006 amendment to the MAC Act.
Dispute resolution
Section 20 of the LTCS Act provides as follows:
(1) an interested person who disputes a decision of the Authority as to whether an injury is a motor accident injury may request the Authority to refer the dispute for determination under this section.
(2) each of the following is an interested person -
(a) the person whose injury is the subject of the Authority’s decision,
(b) the insurer of a claim made by the injured person in respect of the injury,
(c) the Nominal Defendant.
(3) the Authority is to refer the dispute to the President for the determination of the Commission under Part 4.4 of the Motor Accidents Compensation Act 1999.
(4) the Commission is to determine the dispute and certify in writing as to its determination giving reasons for its determination.
(5) the Commission’s determination as to whether an injury is a motor accident injury is final and binding for the purposes of this Act and any proceedings under this Act.
Part 4 of Schedule 4 to the Personal Injury Commission Act 2020 requires the Commission to be constituted by three members of the Commission assigned to the Motor Accidents Division of the Commission.
Section 21 provides that legal costs are to be assessed and included in the determination.
SUBMISSIONS FROM THE PARTIES
Claimant’s first submissions
The claimant’s submissions dated 11 March 2024 noted at [6] the location of the collision and the fact that Mr Bull’s vehicle was parked in the kerbside lane outside 379 Mona Vale Road. The claimant notes at [7] that the vehicle had been parked for about three minutes, had its hazard lights activated at the time of the collision, and that the driver of the vehicle had been doing some work at a nearby property.
The claimant refers at [8] to the immediate aftermath of the accident including Mr Foster apparently telling the attending police officer that the accident was “not my fault.”
The claimant refers at [11] to the definition of “motor accident” in the legislation and at [12] to the definition of “use or operation of a motor vehicle.”
In terms of the “use or operation including the maintenance or parking”, the claimant at [14] relies on the case of Transport Accident Commission (Victoria) v Hoffman & Ors[1] (Hoffman) which involved similar factual circumstances (a bicycle colliding with a parked car) but dealt with a different scheme of benefits. The Victorian legislation[2] required consideration of whether an injury was “caused by or arose out of the use of” a motor vehicle and identifies at [15] the following principles from that decision:
(a) the vehicle does not have to be in motion to be in “use”;
(b) the injury must be a consequence of the use of the vehicle as a motor vehicle, and
(c) the injury does not have to occur or arise while the vehicle is actually being used but must be incidental to the normal use of the motor vehicle.
[1] 7 MVR 193.
[2] Section 13 of the Motor Accidents Act 1973 and s 135 of the Transport Accident Act 1986.
The claimant also relies at [16] on the case of Government Insurance Office (NSW) v RJ Green & Lloyd Pty Limited[3] (Green & Lloyd) where it was said at [446] that “any use that is not utterly foreign to its character as a motor vehicle is, I consider, covered by the words.” The following passage is also relied upon:
“The words, ‘injury caused by or arising out of the use of the vehicle’ postulate a causal relationship between the use of the vehicle and the injury. ‘Caused by’ connotes a direct or proximate relationship of cause and effect. ‘Arising out of’ extends this to a result that is less immediate; but it still carries a sense of consequence. It excludes cases of bodily injury in which the use of the vehicle is a merely causal comcomitant, not considered to be, in a relevant causal sense, a contributing factor.”
[3] (1966) 114 CLR 437.
The claimant submits at [17] that the word “involving” in the MAI Act definition connotes the same causal relationship as the words “arising out of the use of” as considered in Green & Lloyd and that the claimant needs to demonstrate “that the parking of the vehicle was a contributing factor to his subsequent collision with it.” The claimant refers at [19] to the “non-coincidental nexus” referred to in Hoffman between the parking of the vehicle and the accident.
The claimant says at [20] that the presence of the activated hazard lights on Mr Bull’s vehicle suggests the vehicle had been parked only temporarily and that this “plainly demonstrates” the accident involved the use or operation of the parked vehicle.
The claimant says at [21] that if the driver had been sitting in his vehicle at the time of the collision “there would be no question that the accident was one involving its use or operation” and that temporarily leaving the vehicle “should not cause a different result.”
As to the question of “injury” the claimant says at [26] that the “grammatical structure of the definition” requires:
(a) an “incident or accident” which involves the “use or operation” of the vehicle and
(b) the “injury” needs to be “a result of and is caused during” one or more of a series of events listed in (a) – (d).
The claimant says the “use or operation” must be incidental to the “incident or accident” but it is the incident or accident that must cause the injury.
The claimant says at [28] that the Authority’s construction of the definition would require a participant in the scheme to establish:
(a) that the incident or accident caused the injury;
(b) that the use or operation of the vehicle caused the injury and
(c) that one of the four events caused the injury.
The claimant described this a “a tortured and convoluted rewriting of the section that does not accord with its ordinary grammatical meaning.” The claimant says at [29] that such an interpretation would make it difficult for persons to gain entry to the LTCSS and would be inconsistent with the purpose and scope of the Act and the Scheme “remembering that fault has no role to play.”
The claimant cites a further passage from Hoffman:
“The right to compensation given by the legislation goes far beyond the right to compensation which the common law gives for injuries caused by negligence. Care must be taken not to confine the statutory rights to familiar situations of the type in which the common law right exists.”
The claimant submits at [32] that there is no temporal restriction on the relationship between the “incident or accident” and the “use or operation” of the motor vehicle due to the use of the word “involving” in the definition immediately before the words “use or operation”. The claimant notes that in Part 4 of the MAI Act there is required to be injury caused by fault “in the use or operation” of the vehicle (emphasis added) which does imply a temporal connection between injury and use or operation. The claimant says at [35] that by using “involving” instead of “in” broadens the scope of the relationship between the use or operation of the motor vehicle and the incident or accident that causes the injury. The claimant further says at [36]:
“The language of ‘involving’ as opposed to ‘in the’, and the contrasting contests of fault and no-fault respectively, indicate differential legislative purposes, and, hence, meanings. That being so, the claimant is required only to demonstrate some causal or consequential relationship between his collision with the vehicle, and the use or operation of it.”
Authority’s first submissions
The Authority’s primary submission at [4] is that the accident did not involve the use or operation of the vehicle and that the use or operation of the vehicle did not cause the claimant’s injury.
In terms of the “use or operation” of the parked vehicle the Authority says:
(a) the case of Hoffman dealt with different statutory language, “caused by or arose out of the use of” and that “caused by” was more direct, and that “arose out of the use of” was a looser concept [21];
(b) “involved” required a “far closer connection” which required the accident to be “part and parcel” of the use or operation. As the vehicle had been legally parked earlier that use was not involved in the accident [22];
(c) the word “parking” involved an “active process of use” and says at [23];
“There is a real question whether a motor vehicle which has been legally and properly parked, is stationary, and is no longer in use by the driver (who has exited the vehicle) can be said to be in “use” for the purposes of the MAI Act or to involve such a use:
(d) the majority in Hoffman did not accept the proposition that whenever a person collided with a motor vehicle “the mere presence of the vehicle” will establish the injury arose out of the use of the vehicle” [24], and
(e) the vehicle in this case was parked legally and its involvement was “nothing more than the mere presence of the vehicle” which is not necessarily sufficient.
The Authority submits at [26] that the injury must be caused by the “use or operation” and says the words “causes the … injury” operate on the words “use or operation of a motor vehicle” and not on the words “incident or accident.” In support of this, the Authority relies on:
(a) QBE Insurance (Australia) Limited v Abberton[4] (Abberton) a case involving a kangaroo, a claim for statutory benefits under the MAI Act and a single motor vehicle collision. The Authority relies at [29] on a passage from Cavanagh J’s decision where he says that the definition of motor accident “requires that there be the use or operation of a motor vehicle that causes the injury”;
(b) QBE Insurance (Australia) Limited v Lay[5] (Lay) which involved another single motor vehicle accident this time involving a tree falling on the claimant’s car as he was driving. The Authority notes at [30] that Associate Justice Harrison cited Abberton and stated there would be no motor accident within the definition if there was no use or operation of the vehicle causing the injury in order for the CTP policy to respond.
[4] [2021] NSWSC 588
[5] [2023] NSWSC 1433
The Authority at [32] refers to s 1.9(1) of the MAI Act which expressly states the scope of the Act is to apply “in respect of the death of or injury to a person that results from the use or operation of a motor vehicle only if the death or injury is a result of and is caused …”. The Authority says at [33] this is the “governing provision” for the application of the MAI Act and informs the construction of the definition of a “motor accident.”
The Authority then argues at [35] that there is a two-step causative process. There must be an incident or accident:
(a) which involves the use or operation of a motor vehicle that causes the injury; and
(b) that the injury was the result of and was caused during one of the four scenarios or events in s 1.4(a) - (d).
Further, the Authority argues at [36] that s 1.9 is a “gateway” provision in the MAI Act so that the Act does not apply unless s 1.9 is satisfied.
The Authority refers at [40] to the purpose of the LTCS Act noting that it establishes a scheme to provide for persons who sustain catastrophic injuries in motor accidents but not to everyone in every circumstance and says:
(a) the decision of Whitfield v Melenewycz[6] (another single vehicle versus a kangaroo accident) says that the MAC Act does not provide “a universal, comprehensive scheme to award damages to every person who sustains an injury that was in some way connected to a motor vehicle” [41];
(b) in the second reading speech of the LTCS legislation, Mr Watkins said the legislation was to provide a lifetime scheme for the care and support of persons catastrophically injured “in motor vehicle accidents covered by the [MAC Act]” [42] and
(c) the LTCS legislation relies on the MAC Act and now MAI Act definition which confines the extent of its scheme and reflects “the competing policy choices made by the parliament as to the allocation of public money” [43].
[6] [2016] NSWCA 235.
The Authority finally submits at [44] that a “stricter causal nexus is required” than the claimant submits and that it is the “use or operation” of the parked vehicle that must cause “the injury” and at [45] that the precise causal link must, in accordance with the High Court’s decision in March v E & M H Stramare Pty Limited[7] “be determined by applying common sense to the facts of each particular case.”
[7] (1990) 171 CLR 506.
At [46] the Authority says:
“In the present case, the “use or operation” of the utility vehicle cannot be said to have caused the Claimant’s injury. The act of legally parking on a road did not cause the severe injuries suffered by the Claimant. There are no circumstances demonstrating a causal link with the “use or operation” of the utility vehicle beyond its mere presence. Case law addressing different legislation, in different terms, does not assist in determining factual causation in this case.”
Claimant’s supplementary submissions
On 21 May 2024, the claimant lodged additional submissions with the Commission.
In answer to the Authority’s argument that s 1.9(1) of the MAI Act was the governing and gateway provision, the claimant accepts at [5] that is correct in respect of the MAI Act but says at [6]:
(a) Abberton dealt with the interpretation of s 3.37(3) of the MAI Act which would “plainly” be governed by s 1.9(1) but that it would not apply beyond the MAI Act to “different legislation for different purposes”, and
(b) the facts of Abberton were different as there was no dispute that the driver of a vehicle was injured after an accident involving his “use or operation” of the vehicle he was driving at the time;
The claimant distinguishes at [8] the Lay decision because it was a case involving the “no-fault” (previously blameless) provisions and whether an injured person could bring a claim for damages against himself.
The claimant says at [11] that if the Authority’s argument about s 1.9(1) of the MAI Act were accepted then the equivalent “governing provision” of the MAC Act (s 3A(1)) would apply to accidents occurring before the MAI Act came into force and that provision requires there to be fault of the owner or driver in the use or operation of the vehicle. If that was to be a gateway for the LTCS Act then the claimant says at [16] the LTC Scheme would exclude anyone whose accident was caused by their own fault.
The claimant submits at [17] – [20] that the definition of motor accident in s 3 of the MAC Act should be interpreted without any reference to s 3A(1) the so called “governing provision” and that the identical definition of motor accident in s 1.4 of the MAI Act should also be interpreted without any reference to s 1.9(1) and its “governing provision.”
The claimant submits at [21] – [22] that the “use or operation” of the vehicle is not confined to the active process of parking. The claimant refers at [23] to the decision in Hoffman and the example the Court gave of a person walking into a car illegally parked and unlit and says there should be no distinction between an illegally parked car and a parked vehicle because “’fault’ has no part to play.”
The claimant also submits at [24] that if there is required to be an active process of use, the fact that the vehicle the claimant collided with had its hazard lights activated and was only temporarily parked, suggests that the use of the vehicle was ongoing [26].
Authority’s supplementary submissions
The insurer’s supplementary submissions are dated 29 April 2024. The Panel had asked the Authority whether, if the driver had been in the utility with the vehicle lawfully parked with or without the engine running” the claimant would, in the Authority’s view be entitled to participation in the scheme.
The Authority noted at [4] that this factual scenario “demonstrates the fine questions of fact and degree involved in determining whether an accident falls within” the statutory definition.
The Authority accepted at [6] that a collision between a bicycle and a vehicle in the process of being parked could be a motor accident because the “use” includes “the … parking of the vehicle.” The Authority gives the example of a vehicle manoeuvred into a parking position, the vehicle is stopped, the engine is running, and the handbrake is being engaged and the process of turning off the engine is occurring. The Authority says at [7] that either of these would involve the parking of the vehicle because the parking process is continuing.
The Authority says at [9] that the use of the term parking “strongly implied” that the statute is concerned with an “active process” of use. The Authority argues at [9] that the word “use” is protean, and its meaning will vary depending on the extent of the context to which it is applied but in this case the use “must involve recurring physical acts” by which the car is made to serve a purpose such as conveying people or things to a particular place.
The Authority submits at [10] that a car may be in use if it is stationary (for example for the loading of goods or tools) and there may be an even more “passive” physical use such as being a passenger in a car.
However, the Authority then says:
“But none of that assists in the present case given that there were, at the relevant time, no physical acts by which the car in the present matter was made to serve some purpose. The supposed anomaly arising from factual scenario posed by the claimant at [21] goes no further than revealing the way in which Parliament has chosen to draw the line in the statute. The accident simply cannot be said to be “part and parcel” of any relevant use or operation of the vehicle.”
The Authority reiterates its position that at [12] the injury must be caused by the physical act or act of use and at [13] the mere physical presence of a vehicle is not sufficient, “What is required is that the circumstances of the case, viewed as a whole, demonstrate a causal link between the use or operation of the vehicle and the injury”.
Finally, the Authority says at [14] that it does not concede that if the driver had been in the vehicle at the time of the accident the claimant would be entitled to participation in the Scheme.
FACTUAL FINDINGS
The Panel has considered the extensive report and investigations undertaken by the Police.
The attending police officer, Senior Constable David Burke believed the claimant’s words to him after the accident were “not my fault” but were unable to identify an at fault vehicle. The police searched for closed circuit television but found none of use and contacted vehicles identified from the nearest traffic camera to no avail. The police had examined the data from the claimant’s Garmin device which was said to suggest a deviation in the claimant’s path before impact. The Panel notes the information displayed on Mr Foster’s “Garmin” device included “average speed 27.6 kmh, distance 117.7km time 04.15.”
The Police report says that the claimant now has no recollection of any specific details about the accident.
The Panel has also considered the insurer’s investigation report and an expert report prepared by Chris Hall for NRMA. No further information was obtained from Mr Bull about why he stopped his vehicle where he did and what he was doing or where he was going. In the police statement it says he had stopped and “walked out of view to the booster shed” which was a green shed next to 379 Mona Vale Road. The police officer in the statement to the insurer’s investigator said he was in the shed but there is no detail about what he was doing or why or for whom. Mr Bull lived in Pymble and had driven to St Ives.
As indicated earlier, there is no dispute between the parties about the factual circumstances of Mr Foster’s injury and the Panel makes the following factual findings:
(a) Mr Foster while riding his bicycle collided with a parked utility;
(b) the utility was lawfully parked on Mona Vale Road;
(c) Mona Vale Road is a three-lane road in each direction where the accident occurred;
(d) the utility had been parked in the kerbside lane for a few minutes with its hazard lights on;
(e) the collision caused Mr Foster’s injury, and
(f) the injury is sufficient to meet the medical criteria for inclusion in the scheme.
While there is no evidence from Mr Bull on this point, the Panel believes an inference can be drawn due to the hazard lights being on, that Mr Bull was not intending to leave his vehicle where it was, for any significant length of time.
CONSIDERATION OF THE ISSUES
The Panel notes that both parties have referred to a number of cases. Those cases have dealt with different schemes and different legislative provisions and therefore care must be taken when considering them.
Whether Mr Foster is entitled to participation in the LTCS Scheme is dependent upon the factual circumstances of his case and the specific provisions of the legislation applicable to his situation.
The submissions from the parties indicate that the following issues need to be determined:
(a) does s 1.9(1) of the MAI Act need to be applied when interpreting the definitions in the MAI Act adopted into the LTCS Act?
(b) does parking apply only when a vehicle is in the process of being parked?
(c) does causation use apply to both the incident or accident and the injury?
(d) Does involving widen or restrict the use or operation of a vehicle?
(e) is there a causal link necessary between injury and the use or operation?
Does s 1.9(1) of the MAI Act apply to the definition imported into the LTCS Act?
The Panel does not accept the Authority’s argument that s 1.9(1) of the MAI Act applies as a gateway or governing provision in respect of the application of the definition of motor accident in the LTCS Act.
Section 1.9(1) is found in Division 1.3 which concerns the application of the MAI Act and not the LTCS Act. Division 1.3 includes a provision which limits the MAI Act to accidents occurring only after the commencement of the Act (s 1.8) and injuries resulting from accidents where the motor vehicle has motor accident cover or where the injured person has a work injury damages claim (s 1.10). There is no provision in Division 1.3 that suggests either of these provisions should apply to the LTCS scheme or its legislation.
Section 5 of the LTCS Act requires the importation of the words and meanings from the MAC Act (and now the MAI Act) and does not mention the predecessor to Division 1.3 or s 1.9(1)[8].
[8] The predecessors to the provisions in Division 1.3 would include s 3AA, 3A and 3B of the MAC Act.
Section 4 of the LTCS Act also has a series of “application” clauses similar to those in Division 1.3 (including s 1.9) of the MAI Act. If the Parliament had meant for s 1.9(1) (or its predecessor) to apply, the Panel is of the view it would have included a provision to that effect in s 5.
The Panel notes the decisions of the Courts in Lay and Abberton and agrees with the claimant’s submissions that the statements of the judges in those cases cannot be considered as persuasive authority in this matter. The judges in those cases were not dealing with a case about the interpretation of the “use or operation” but they were cases dealing with other sections, in other parts of the Act.
Does “parking” apply only when a vehicle is in the process of being parked?
The Authority submits at [23] of its original submissions and [9] of the supplementary submissions that “parking” as it is used in the definition of “use or operation” requires there to be an “active process of use.” The Authority suggests there is a distinction between the vehicle that has been parked and left and the vehicle in the process of being parked. The Panel agrees with the Authority there is a distinction but does not agree with the Authority that the use of the word “parking” restricts “use or operation” to vehicles in the process of being parked.
The Panel notes that the definition of use or operation refers to both the maintenance of a vehicle and the parking of a vehicle. Maintenance is a noun which means the process of maintaining a vehicle. The infant claimant in May v Transport Accident Commission[9] was injured whilst his parents’ car was being maintained in a service station. The claimant in Government insurance Office (NSW) v King[10] was a bystander injured in somewhat bizarre circumstances following his friend’s repairs to a vehicle and attempts to start it. If those accidents occurred in NSW today, the definition of use and operation would most likely apply, and the courts would not need to be troubled.
[9] 8 MVR 539
[10] (1960) 104 CLR 239.
Parking unlike the word maintenance however can be both a verb (he was parking the car) or a noun (parking in the area is a problem). Parking garages or parking lots house cars that are being parked and that have been parked. In those examples the use of the word “parking” does not envisage only the action of parking but the continuous state of a vehicle that has been parked.
The Panel has considered the three claims determined by Justice Tadgell in Lamont, Hodkinson and Jorgensen vs Motor Accidents Board of Victoria[11] (Lamont). All involved bicycles which collided with motor cars. In the Jorgensen claim, the bicycle had collided with the vehicle in the evening and the car was still in the same position the next day. Justice Tadgell in that case had “assumed that the car was in use when it was being parked but did not think that it could properly be inferred that it continued to be in use at the time of the collision.”
[11] [1983] 1 VR 88.
Justice O’Bryan in Hoffman[12] agreed with that proposition and said, “To park a vehicle in a street is a ‘use’ of a vehicle incidental to vehicular ‘use’ but at some point in time at the cessation of a journey a parked car will cease to be in ‘use’”. The majority (Chief Justice Young and Justice McGarvie) made similar observations and agreed with Justice Tadgell’s in Lamont saying:
“We see no reason why a past user of a motor car should not be a user out of which injuries may arise. If a motor car is parked at the side of the road but the driver remains in it and a cyclist then runs into the car and sustains injuries we should have thought that the injuries clearly enough arose out of the use of the car. If the driver left the car temporarily the situation would be no different. “
[12] [1989] VR 197.
The Panel has also considered the more recent decision of RBK v Montague[13] where the Victorian Supreme Court was concerned with a case of a claimant found unconscious in the backseat of a motor vehicle. The claimant had, two days earlier, been driven to a location and had injected heroin in the car. She had passed out and been driven to one or other locations before the car was parked close to where the driver lived with the windows up. As a result of lying immobile with the temperature in the motor vehicle at times exceeding 40 degrees, the claimant was catastrophically injured. She claimed her injuries arose out of the use of the vehicle, due to the negligence of the driver and that the Transport Accident Commission was liable to indemnify him.
[13] [2022] VSCA 183.
The relevant provision established liability on the part of TAC to indemnify the owner or driver in respect of “injury … of a person caused by or arising out of the use of the motor vehicle.” Injury was defined to mean an injury caused by a transport accident which was in turn defined as an “incident directly caused by the driving of a motor vehicle.”
The Judges of the Court of Appeal[14] referred to a number of cases and held (at 47) that the claimant’s injuries had arisen out of the use of the vehicle which had been driven to and parked in a location with the windows up exposing the claimant to excessive heat.
“We see no relevant distinction between the cases in Lamont and Hoffman involving instances in which cyclists collided with parked cars, and the present case. In each case, the injuries arose out of the parking of the relevant vehicle in the place in which it was parked. The fact that the applicant may not have suffered injury in the immediate aftermath of the parking of the vehicle in the present case does not detract from the proposition that there is a non-coincidental nexus between the parking of the vehicle and the applicant’s injuries, being the very parking of the vehicle at a location and in a manner which placed the applicant at risk of suffering heatstroke and consequential injury.”
[14] Special leave to the High Court was sought but refused.
While the Victorian legislation is different, the above decisions have considered the issue of whether the active parking of a vehicle or the past parking of the vehicle is use of a vehicle. They suggest there is a continuum and that at some stage a vehicle being parked or parked is being used and at some later stage the vehicle has been parked long enough for it to not be in use.
The Panel does not accept that the use of the word “parking” strongly implies an active process of use and that the word “parking” can include vehicles that have been parked as well as vehicles that are in the process of being parked.
Does causative use apply to both the “incident or accident” and the injury?
The Panel had, in its first report posed the question of whether the definition of motor accident involved two separate concepts, that is whether there had to be an incident or accident involving the use or operation of the vehicle and that it was the use or operation of the vehicle which caused the injury. Alternatively, the Panel queried whether there was a single concept and the claimant’s injury needed to be caused by the incident or accident (which involved the use of a motor vehicle).
The Panel notes the evolution of the definition of motor accident. In 1988 the definition required there to be an accident which had been caused by, “fault in the use or operation of a vehicle.” There was a separate definition of injury which also required there to be fault in the use or operation of a vehicle that caused the injury. Many of the Victorian cases concerning the scope of the indemnity or whether an injury was caused by or arose out of the use of a vehicle, and they did not have to grapple with whether a set of circumstances were or were not a motor accident[15].
[15] In the Transport Accident legislation, the definition in s 3 of a transport accident is simply an “incident directly caused by the driving of a [motor vehicle].”
In the MAI Act the definition of injury in s 1.4 does not mention fault, does not mention use or operation and is focussed on the types of things that might be injuries including personal and bodily injury, pre-natal injury and psychological or psychiatric injury.
The MAI Act definition of “motor accident” is directed at defining the event that led to the injury and in the Panel’s view has two parts:
(a) there must be “an incident or accident involving the use or operation of a motor vehicle that causes” the injury to a person, and
(b) the injury must be a result of and is caused during one of the four listed circumstances (driving, collision, running out of control or a dangerous situation).
The Panel does not accept the Authority’s argument (from [26] of the original submissions) that suggests there are two separate concepts in the first point above, that is, the Panel does not accept that there needs to be a finding that an incident or accident causes the injury and a separate finding that the use or operation of the vehicle causes the injury.
The Panel notes that the LTCS Act does not allow participation in the scheme for anyone who sustains a catastrophic injury. The scheme allows participation if the claimant sustains a catastrophic motor accident injury which is defined as an injury caused by a motor accident. The purpose of the definition in the MAI Act in the context of the LTCSS is to define what the something is which causes the injury that allows the participation in the scheme.
The Panel is of the view that a plain reading of the first part of the definition of motor accident (which has no commas or other grammatical indications to suggest separate concepts are involved) is that it is the whole of that phrase that must be the “something” which causes the injury. Mr Foster’s incident or accident must involve the use or operation of the motor vehicle and it is that event or set of circumstances which must cause the injury not the use or operation considered in isolation.
Does “involving” widen or restrict the use or operation of a vehicle?
The Authority submitted at [22] of the original submissions that the word “involving” requires a far closer connection between the accident and use or operation and that the accident must be “part and parcel” of the use or operation.
The Panel has considered the case of Dickinson v Motor Vehicle Insurance Trust[16] (Dickinson) which concerned two children left in a car while their father went shopping. The children found some matches in the car and a fire started with one of the children sustaining serious burns as a result. The Western Australian legislation applicable in that case required consideration of whether the child’s injury was caused by or arose out of the use of a motor vehicle. The High Court said of the provision that:
[11] “The test posited by the words ‘arising out of’ is wider than that posited by the words ‘caused by’ and the former, although it involves some causal or consequential relationship between the use of the vehicle and the injuries, does not require the direct or proximate relationship which would be necessary to conclude that the injuries were caused by the use of the vehicle.”
[16] (1987) 163 CLR 500.
The Court found the burns injuries arose out of the use of the vehicle:
[12] “.. It was in use to carry the appellant and her brother as passengers in the course of a journey which was interrupted to enable the father to do some shopping. There is no suggestion that the interruption was other than temporary. ‘Use’ for the purposes of the Act extends to everything that fairly falls within the conception of the use of a motor vehicle and may include a use which does not involve locomotion. Thus, the occupation of the motor car by the appellant and her brother as passengers whilst the car was stationary and their father was absent was a use of the vehicle within the meaning of the Act. The interior of the motor car caught fire whilst it was in use in that way. The injuries which the appellant sustained as a result arose out of that use… “
In the Panel’s view, “involving” replaces the words “caused by or arising out of the use of” or “caused by or in connection with” in other jurisdictions and previous versions of the NSW schemes. The word “involving” used in the MAI Act definition, is in the Panel’s view, general and casts the net quite wide. It does not, in the Panel’s view, require a temporal connection with use, or a direct or proximate connection with use but a commonsense consideration of whether the claimant’s accident involved, was concerned with, or was related to the use or operation of the parked motor vehicle.
The Panel does not accept the Authority’s arguments at [22] of the original submissions and [11] of the supplementary submissions that the accident must be “part and parcel” of the use. In Dickenson, the Court held that use, “extends to everything that fairly falls within the conception of the use of a motor vehicle”. The Panel is of the view that the word “involving” as well as the word “incident” broadens the scope of the definition and captures more events or sets of circumstances than the previous phrase “caused by or arising out of the use of”. It is, in the Panel’s view even wider that the phrase “caused by or connected with” the use of a motor vehicle.
The wide-cast net is then drawn in with the second part of the definition, that is the part requiring a causal link between injury and one or more of the four circumstances (driving, collision, running out of control or dangerous situation). The temporal connection is required there due to the use of the word “during”. The relationship between accident and injury is twofold and close requiring the injury to be both “a result of” and “caused” during the stated circumstances. In Mr Foster’s case there is no dispute that his injury was a result of and was caused by his collision with the parked vehicle.
Is there a causal link necessary between injury and the use or operation?
The Authority at [44] and [46] of its original submission submits there is a stricter causal nexus required between the injury and the use of the vehicle. The Authority maintains the legally parked vehicle did not cause the claimant’s injuries and the injuries must be caused by the use or operation of the vehicle. The Authority maintains that the mere presence of a vehicle as part of the circumstances of the accident will not satisfy the definition of “use” of the motor vehicle.
The Panel has already determined that something must cause the motor accident injury and that the something is “an incident or accident involving the use or operation of a motor vehicle” as a single concept. The Panel has decided there is no separate link required between the use or operation and the injury.
However, if the Panel is wrong and the Panel is required to determine whether the claimant’s injury was caused by the use or operation of the vehicle in isolation, the Panel notes that the cases referred to suggest that:
(a) whether a motor vehicle is in use when the injury occurred is a question of fact (Green & Lloyd page 448);
(b) the use of a motor car is not restricted to its vehicular or locomotion use (Dickinson for example);
(c) parking is a use (the Victoria cases referred to above)
(d) a distinction was made in Government Insurance Office of NSW v King[17] between the use of a vehicle and working on a vehicle. The Panel notes this is unlikely to be relevant as the definition of use or operation now includes “maintenance” of a vehicle;
(e) incidental acts such as loading and unloading may be usage (Green & Lloyd), and
(f) consequential use or “not utterly foreign” use or incidental use will satisfy “arising out of the use of” or “in connection with” the use or operation of a vehicle.
[17] [1960] 104 CLR 93
The Panel notes the following passage from the majority decision in Hoffman:
“If a pedestrian were injured as a result of walking into a motor car which was unlighted and illegally parked, we should have thought that the injuries might be found to have arisen out of the use of the motor car whether or not the driver was sitting in the motor car or had recently left it.”
The Panel notes the supplementary submissions from the Authority did not concede that Mr Foster would be entitled to participation in the scheme had the driver of the utility been sitting in his vehicle before Mr Foster collided with it. If one substitutes the word “cyclist” for pedestrian and “riding” for walking in the above hypothetical and consider the other Victorian cases, there is judicial support for a finding in favour of Mr Foster.
Lest the Authority be concerned that anyone who walks or cycles into a stationary parked vehicle might be eligible for participation in the LTCSS, Justices Young and Garvie also said in Hoffman:
“… we do not think that Jorgensen's Case means that whenever a person is injured by collision with a vehicle the mere presence of the vehicle, wherever it be, justifies a finding that the injuries arose out of the use of a vehicle, although it will probably often be the case. It is dangerous to attempt to exclude certain situations without supposing all the facts which would be relevant, but injuries sustained from a collision with a vehicle parked in the owner's garage might well not arise out of the use of the vehicle. Collisions in other places, not on a public highway, might produce a similar result, but the solution would depend upon all the circumstances of the particular case.”
The facts and circumstances of Mr Foster’s accident include that it occurred on a public, three lane road not a private garage or driveway. The vehicle was parked legally not illegally in broad daylight and not at night. The utility vehicle had been parked for a few minutes with its hazard lights activated while its driver left it to attend to something.
The vehicle had been used to transport the driver to where he needed to be, in order to do what he needed to do there. It was, at the time of the collision being used as a parked conveyance, temporarily so, before it would transport the driver to the next place and the next event, to enable the driver to do what he needed to do there.
If the Panel had been required to decide whether Mr Foster’s injury was caused by the use or operation of the vehicle (the separate concept), the Panel considers Mr Foster’s injury arose out of the parking of the utility vehicle in the place where it was parked and the way in which it was parked. It was parked, with its hazard lights on clearly signifying the driver was leaving the vehicle temporarily and the vehicle was still in use at the time of the accident.
CONCLUSION
The Panel is satisfied on the information before us and noting the factual findings not disputed by the parties that:
(a) Mr Foster was riding his bike on Mona Vale Road, St Ives when he collided with a lawfully parked utility;
(b) the parked utility had been in place for a few minutes and had its hazard lights activated and was not parked for any great length of time;
(c) the utility was in use as a parked vehicle being used to transport Mark Bull from one place to another place at the time of the collision,
(d) the accident (the collision between the bicycle the car) involved the use of the parked vehicle as Mr Bull’s chosen mode of transport, and
(e) the accident involving the use of the temporarily parked vehicle caused Mr Foster’s injury.
The Panel is satisfied that, on 15 March 2021, Mr Foster sustained a motor accident injury within the definition in the LTCS Act because he was injured in a motor accident within the definition in the MAI Act.
As the Panel has made that finding, it follows that there is no necessity for the Panel to consider whether there was an unidentified vehicle and whether the driver of that vehicle may have contributed to the claimant’s collision with the parked utility.
As there is no dispute about the nature and extent of his injuries it would appear Mr Foster is therefore entitled to participation in the Lifetime Care and Support Scheme.
The Panel notes that the Authority conceded the claimant’s entitlement to legal costs and that the quantum of those costs has been agreed.
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