RBK v Montague

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0075

RBK	Applicant
v
LEONARD MONTAGUE	First Respondent
TRANSPORT ACCIDENT COMMISSION	Second Respondent

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JUDGES:	BEACH, NIALL and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 August 2022
DATE OF JUDGMENT:	31 August 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 183
JUDGMENT APPEALED FROM:	[2021] VSC 336 (Keogh J)

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ACCIDENT COMPENSATION – Motor vehicles – Injury arising out of use of motor vehicle – Heatstroke and consequential injury occurring after unconscious passenger left in parked vehicle – Whether injury arose out of use of vehicle – Trial of preliminary question – Whether Transport Accident Commission liable to indemnify driver in respect of injured person’s claim for damages.

Transport Accident Act 1986 (Vic), ss 3(3) and 94(1).

Fawcett v BHP By-Products (1960) 104 CLR 80, Government Insurance Office of New South Wales v R J Green & Lloyd Pty Ltd (1966) 114 CLR 437, Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500, Lamont v Motor Accidents Board [1983] 1 VR 88, Transport Accident Commission v Hoffman [1989] VR 197, May v Transport Accident Commission [1989] VR 981 and State Insurance Office v Jura Concrete Pumping [1990] VR 331 considered.

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Counsel
Applicant:		Ms FAL Ryan SC with Ms S Gold
First Respondent		No appearance
Second Respondent		Mr J Ruskin QC with Mr BW Jellis
Solicitors
Applicant:	Adviceline Injury Lawyers
First Respondent:
Second Respondent	Solicitor for the Transport Accident Commission

BEACH JA
NIALL JA
MACAULAY JA:

At approximately 11:00 pm on 7 January 2012, RBK (‘the applicant’) was found unconscious by her parents in the backseat of her motor vehicle (‘the vehicle’). The vehicle was parked in a street in Brighton, near the address of Leonard Montague (‘the first respondent’). Upon being found, the applicant required and received medical treatment.
In December 2019, the applicant commenced a proceeding in the Trial Division claiming damages for injuries she alleged that she received as a result of being left unconscious in the vehicle in the days leading up to her being found by her parents. The injuries the applicant claims to have suffered include cardiac arrest; bilateral pulmonary emboli; heatstroke; multiple organ failure; hypoxic brain injury; and paraplegia.
The defendants in the applicant’s proceeding are the first respondent and the Transport Accident Commission (‘the second respondent’). In her statement of claim,[1] the applicant claims that her injuries arose out of the use of the vehicle by the first respondent; that her injuries were suffered due to the negligence of the first respondent in the use of the vehicle; and that the second respondent is liable to indemnify the first respondent, as the driver of the 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 vehicle, pursuant to s 94(1)(a) of the Transport Accident Act 1986 (‘the Act’).
[1]The current version of which is an amended statement of claim dated 2 February 2021.
The first respondent did not enter an appearance, and summary judgment was entered against him for damages to be assessed. The second respondent has filed a defence in which it denies that the applicant’s alleged injuries were caused by or arose out of the use of the vehicle within the meaning of s 94(1)(a) of the Act, and denies that it was liable to indemnify the first respondent. On 31 May 2021, a judge of the Trial Division tried the following preliminary question:
Is the [second respondent] liable to indemnify the [first respondent] pursuant to s 94(1)(a) of [the Act]?
The preliminary question was tried, and fell to be answered, on facts agreed between the parties (‘the agreed facts’).
On 28 June 2021, pursuant to reasons delivered on 10 June 2021,[2] the trial judge dismissed the applicant’s proceeding against the second respondent.[3] In his reasons for dismissing the proceeding, the judge concluded that it had not been established that the second respondent was liable to indemnify the first respondent under s 94(1)(a) of the Act, and that the preliminary question would be answered ‘No’.[4]
[2]RBK v Montague [2021] VSC 336 (‘Reasons’).
[3]The proceeding was dismissed pursuant to r 47.05 of the Supreme Court (General Civil Procedure) Rules 2015.
[4]Reasons, [36].
The applicant now seeks leave to appeal on the following proposed grounds:
1.The judge erred in holding that the applicant’s injuries were not injuries ‘caused by or arising out of the use of a motor vehicle’ within the meaning of s 94(1)(a) of [the Act].
2.The finding of the judge that the applicant’s injuries did not arise out of the use of a motor vehicle within the meaning of s 94(1)(a) of [the Act] was not open on the facts as agreed.
3.The judge erred by failing to properly consider the causal relationship between the location in which the car was parked and/or the external conditions arising there, and the applicant’s injuries.
While the applicant has identified three proposed grounds of appeal, in substance her complaint is that the judge erred in failing to conclude that her injuries were caused by or arose out of the use of the vehicle.

Relevant legislative provisions

The critical legislative provision in this case is s 94(1)(a) of the Act. Section 94(1)(a) is contained in Pt 6 of the Act which is headed, ‘Legal rights outside this Act’. Section 94(1)(a) relevantly provides:
The Commission is liable to indemnify –
(a)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; …
The word ‘injury’, used in s 94(1)(a), is the subject of definitions in ss 3(1) and 3(3) of the Act. Section 3(1) of the Act provides:
injury, except in Part 10, means physical or mental injury and includes nervous shock suffered by a person who was directly involved in the transport accident …;
Section 3(3)(a) of the Act provides:
In this Act –
(a)a reference to an injury … is a reference to an injury … caused by a transport accident;
The expression ‘transport accident’ is defined in s 3(1) to mean ‘an incident directly caused by the driving of a motor car or motor vehicle …’ .[5]
[5]See also s 3(1A) of the Act, which expands the definition of ‘transport accident’ by including some additional defined incidents, not relevant to the circumstances of the present case.
If the word ‘injury’ in s 94(1)(a) were to be construed by reference to the definitional provisions in ss 3(1) and 3(3), the indemnity provided by the section would be limited to one in respect of an injury caused by an incident directly caused by the driving of a motor car or motor vehicle. Such a construction, however, would give no operative effect to the words ‘caused by or arising out of the use of the motor vehicle’ in s 94(1)(a). Such a construction (one that does not give operative effect to all of the words of the section) should be avoided if at all possible.[6]
[6]See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 382 [71] (per McHugh, Gummow, Kirby and Hayne JJ).
In argument, the parties accepted that the purpose of s 94(1) of the Act[7] was to provide an indemnity in respect of injuries caused by or arising out of the use of a motor vehicle — and not merely those injuries which were directly caused by the driving of a motor vehicle. They also accepted that s 94(1)(a) should be construed so as to give operative effect to all of the words of the section. In our view, having regard to the purpose of s 94(1)(a) and the need to give operative effect to all of the words in that section, the definitional provisions relating to the meaning of the word ‘injury’ in s 3 of the Act should be read as only having application to those provisions of the Act where a contrary intention does not appear.[8] Section 94(1)(a), however, by the inclusion of the words, ‘caused by or arising out of the use of [a] motor vehicle’, manifests a contrary intention. In the circumstances, we are prepared to proceed on the assumption adopted by the parties and the trial judge that the applicant must establish that her injuries were caused by or arose out of the use of a motor vehicle, rather than that they were directly caused by the driving of a motor vehicle.
[7]See s 35(a) of the Interpretation of Legislation Act 1984.
[8]As to the implication of the words ‘unless the contrary intention appears’ and the yielding of all statutory definitions to contrary intention, see In the Matter of the Fourth South Melbourne Building Society (1883) 9 VLR (E) 54, 58; Transport Accident Commission v Treloar [1992] 1 VR 447, 449; Buresti v Beveridge (1998) 88 FCR 399, 401; Tjungarrayi v Western Australia (2019) 269 CLR 150, 178 [89].
Background facts
The applicant was the owner of the vehicle. It was a registered motor vehicle within the meaning of s 3 of the Act. The agreed facts on which the preliminary question was tried are as follows.
On 5 January 2012, when she was aged 19, the applicant drove the vehicle to pick up her friend Jessica in Balaclava. She then drove the vehicle to South Melbourne, where she and Jessica met the first respondent, Leonard Montague. The first respondent (who is now deceased) was Jessica’s father.
At South Melbourne the applicant paid for heroin, which was obtained from the first respondent. At some time between 4:00 pm and 5:00 pm on 5 January 2012 the applicant was injected with heroin in the company of the first respondent and Jessica. At that time she was sitting in the driver’s seat of the vehicle. Within minutes of the injection, the applicant fell unconscious. The first respondent and Jessica then moved the applicant onto the back seat of the vehicle.
The first respondent then drove the vehicle to Southbank in Melbourne, where he parked the vehicle. The applicant was left unconscious in the back seat of the vehicle whilst the first respondent and Jessica attended Crown Casino. The first respondent wrote the applicant a note stating that he had locked the vehicle and taken the keys.
Several hours later, the first respondent and Jessica then returned to the vehicle. The applicant was still unconscious. The first respondent then drove the vehicle to Brighton and parked it in a street near his then residence. By this time, it was just before sunrise on 6 January 2012. The applicant was still unconscious in the back seat of the vehicle when it was parked in Brighton. The first respondent then left the applicant unconscious in the parked vehicle.
On 7 January 2012 at about 11:00 pm, the applicant was, as we have already said, found unconscious in the vehicle by her parents. Medical treatment was called for and subsequently provided.
The applicant remained unconscious in the vehicle from late afternoon on 5 January until she was discovered late on 7 January 2012. There is no evidence that the first respondent returned to the vehicle after parking it in Brighton. The vehicle remained stationary and parked throughout that period.
Over the two days that the applicant lay unconscious in the vehicle, the maximum air temperature on 6 January 2012 was between 23.3 and 24.4 degrees; and on 7 January 2012 was between 29.9 and 30.7 degrees. The temperature inside the vehicle rose over the course of the day on both 6 and 7 January 2012. At times, the temperature exceeded 40 degrees Celsius. When the applicant was discovered in the vehicle at 11:00 pm on 7 January 2012 her body temperature was recorded by ambulance officers at 40.5 degrees.
The applicant suffered significant injuries including heatstroke, hyperthermia, cardiac arrest, multiple organ failure, bilateral pulmonary emboli, severe motor neuropathy and paraplegia. The combination of heatstroke and immobility whilst having been left in the parked vehicle was a cause of the applicant’s injuries.

The judge’s reasons

After setting out the agreed facts and the terms of s 94(1)(a) of the Act,[9] the judge summarised the parties’ submissions.[10] The judge noted the applicant’s submission that her injuries arose out of the use of the vehicle in two ways, namely:
•the applicant’s ‘use of the vehicle as a passenger’; and
•‘the use of the vehicle when it was driven on 5 and 6 January 2012, and then parked in Brighton where it remained until [the applicant] was rescued from the vehicle on 7 January’;[11]
The judge noted the second respondent’s submission that:
The indemnity for which s 94(1)(a) of [the Act] provides is not unconfined, such that it is engaged by any injury involving, in any way a registered motor vehicle. Here there was only coincidental involvement of the vehicle.[12]
[9]Ibid [4]–[18].
[10]Ibid [19]–[25].
[11]Ibid [19].
[12]Ibid [22] (citation omitted).
Next, the judge referred to relevant authorities, including the Government Insurance Office of New South Wales v King,[13] Government Insurance Office of New South Wales v R J Green & Lloyd Pty Ltd,[14] Lamont v Motor Accidents Board,[15] Dickinson v Motor Vehicle Insurance Trust,[16] Transport Accident Commission v Hoffman[17] and May v Transport Accident Commission.[18]
[13](1960) 104 CLR 93 (‘King’).
[14](1966) 114 CLR 437 (‘Green’).
[15][1983] 1 VR 88 (‘Lamont’).
[16](1987) 163 CLR 500 (‘Dickinson’).
[17][1989] VR 197 (‘Hoffman’).
[18][1989] VR 981 (‘May’).
The judge commenced his analysis by observing that the agreed facts did not establish ‘if or when [the applicant’s] injuries were a cause of [her] unconscious and immobile state’.[19] His Honour then rejected the applicant’s submission that she continued to use the vehicle as a passenger until she was found on 7 January.[20] He then said that the applicant did not remain in the vehicle on 6 and 7 January 2012 ‘as an incident of its use or a journey’.[21]
[19]Reasons, [31].
[20]Ibid [32].
[21]Ibid.
The judge said that the vehicle was used as a ‘place or receptacle in which to inject [the applicant] with heroin’.[22] He said that this activity was ‘not incidental to a normal use of the vehicle as a motor vehicle and was a use that was utterly foreign to its character as a motor vehicle’.[23]
[22]Ibid [33].
[23]Ibid.
In relation to the applicant remaining in the vehicle after becoming unconscious, his Honour said:
[The applicant] remained in the vehicle, not as an incident of being transported from Southbank to Brighton, but because she had been rendered unconscious and immobile by the injection of heroin while in the vehicle and was left in that state by [the first respondent]. [The applicant’s] injuries were, at most, a casual concomitant of having been transported in the vehicle, a conclusion reinforced by the time which elapsed between the vehicle being parked in Brighton and [the applicant] being discovered in her injured state.[24]
[24]Ibid.
The judge concluded his reasons by saying:
In the present case there was no collision. [The applicant] was injured because she was unconscious and immobile inside the vehicle which had been used as the receptacle in which she was injected with heroin. She remained in the vehicle because she was abandoned, unconscious and immobile, by [the first respondent]. The relationship between [the first respondent] driving the vehicle to and parking it at the location in Brighton and [the applicant’s] injuries was merely coincidental.
...
It has not been established that [the second respondent] is liable to indemnify [the first respondent] under s 94(1)(a) of [the Act]. The preliminary question will be answered no.[25]
[25]Ibid [35]–[36].

Relevant principles and authorities

The question of whether an injury was caused by or arose out of the use of a motor vehicle falls to be treated ‘as an ordinary question of fact to be proved by evidence adduced by the party seeking the benefit of the insurance’.[26] The words ‘caused by or arising out of the use of a motor vehicle’ have been the subject of analysis in a considerable number of cases, including the authorities to which we will now refer.
[26]King (1960) 104 CLR 93, 95 (per Dixon CJ).
In Fawcett v BHP By-Products Pty Ltd,[27] the High Court had to consider a case where a worker had suffered injury when a Caldwell mechanical loader[28] malfunctioned. In that case, the injury was suffered when the worker tried to free the bucket of the mechanical loader after it had jammed, and the bucket fell on him. Menzies J[29] rejected an argument that the injury arose from the use of the machine as a loader and not as a vehicle. His Honour also rejected a submission that the statutory insurance policy was limited to cases involving injury caused by or arising out of the use of the machine as a vehicle. Specifically, his Honour said:
I cannot accept the distinction thus attempted. If for instance, the loader were in operation upon a public street and while the conveyor was operating, although the vehicle was stationary, a stone fell from it upon a person passing it and injured him, it would be perfectly correct to say that the bodily injury so occasioned did arise out of the use of the vehicle. The same would be true if a collision occurred between the loader and some other vehicle upon the road which dislodged the stone in the bucket of the loader which fell upon a bystander and injured him. The Act is not, I think, concerned with fine distinctions but requires the issue of a policy that covers liability arising out of everything that falls fairly within the conception of the use of a motor vehicle.[30]
His Honour went on:
This does not mean that the words of s 10 are to be regarded as not involving any limitation whatever. If, for instance, a man were to steal a car, park it outside the house of his enemy and use it as a fort from which to shoot that enemy as he emerged from his gateway, the injury so suffered would not give rise to a liability that had to be covered by a third-party policy, and this is so simply because the Act is not concerned with such a liability and the bodily injury so occasioned cannot fairly be described as arising out of the use of the motor vehicle. It arises out of the use of a rifle in a motor vehicle.[31]
[27](1960) 104 CLR 80 (‘Fawcett’).
[28]Described as being a tractor upon which was mounted a bucket which could pick up material from in front of the tractor, travel along rails and then deposit the load onto a truck or some other container.
[29]With whom Dixon CJ, McTiernan and Kitto JJ agreed, with Windeyer J delivering a separate concurring judgment.
[30]Ibid [87].
[31]Ibid.
In Green, the High Court had to consider a case involving the loading of a building hoist onto the tray of a stationary table-top truck. During the course of the loading, the hoist fell and injured one of the workers engaged in the loading. The High Court held that the injury to the worker arose out of the use of the truck. Barwick CJ[32] said:
I have no difficulty in the present case in concluding that the insured motor vehicle was being ‘used’ during the operation of placing this hoist upon its table-top. The vehicle had been brought to the place where the hoist was in order to transport it thence to another place; the positioning of the hoist upon the motor vehicle was an indispensable step in that operation. At the very lowest, the table-top of the truck was being used as an integral and significant part of the truck to receive the load for the purpose of its conveyance. …
I do not think that every act in loading a vehicle for the conveyance of what is loaded upon it is necessarily a use or a part of the use of the motor vehicle. But the act of actually placing the load on the part of the vehicle designed to bear it during transport and for the purpose of its transportation, must, in my opinion, be a use of the motor vehicle in the sense relevant to the Act and to the terms of the policy. In my opinion, the relevant use of the vehicle cannot be confined to the periods it is in motion, or its parts moving in some operation. It may be in use though stationary.[33]
A little later, his Honour said:
Bearing in mind the general purpose of the Act I think the expression ‘arising out of’ must be taken to require a less proximate relationship of the injury to the relevant use of the motor vehicle than is required to satisfy the words ‘caused by’. It may be that an association of the injury with the use of the vehicle while it cannot be said that that use was causally related to the injury may yet be enough to satisfy the expression ‘arise out of’ as used in the Act and in the policy.[34]
[32]With whom McTiernan and Taylor JJ agreed.
[33]Green (1966) 114 CLR 437, 442.
[34]Ibid 443.

In a separate concurring judgment in Green, Windeyer J said in relation to the expression ‘injury caused by or arising out of the use of a motor vehicle’:
The only limitation upon its generality that I can see is that the injury must be in some way a consequence of a use of the vehicle as a motor vehicle. Any use that is not utterly foreign to its character as a motor vehicle is, I consider, covered by the words. … Repeating what I said in [Fawcett], I consider that the kind of use of a motor vehicle that is covered by the policy is driving it or doing something to it or with it that is incidental to its normal use as a motor vehicle.[35]
Later in the judgment, his Honour said:
But the question that arises in cases such as this is not answered simply by asking was the vehicle being used. 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 casual concomitant, not considered to be, in the relevant causal sense, a contributing factor.[36]
[35]Ibid 446–7.
[36]Ibid 447.
In Dickinson, the High Court had to consider a case where two children were left in a car while their father went shopping. During the father’s absence, the elder child played with a box of matches which he found between the two seats in the car. A floor mat caught alight, the fire spread and the younger child sustained severe burns.
The High Court[37] said:
Whether or not the appellant's injuries were actually caused by the use of the motor car, it is sufficient to say that they arose out of such use. 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
There can, in our view, be no doubt that the motor vehicle was being used within the meaning of the Act at the time at which the appellant sustained her injuries. 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. It is not to the point that the negligence of the father is said to consist in leaving the matches in the car and that that was not a relevant use of the vehicle. In any event it is arguable that the negligence of the father consisted in leaving the children in the car for the time he did when there was a box of matches in the car and that such leaving of the children in the car was a relevant use of the vehicle. The appellant did not, however, have to go so far.[38]
[37]Mason CJ, Wilson, Brennan, Dawson and Toohey JJ.
[38]Dickinson (1987) 163 CLR 500, 505–6.
As the trial judge observed, Lamont and Hoffman were cases involving instances in which a cyclist had collided with a parked car and was injured.[39] In Hoffman, Young CJ and McGarvie J, after referring to authorities including King and Green, endorsed an observation made by Crockett J in Brewer v Incorporated Nominal Defendant,[40] that ‘the authorities reveal that no satisfactory intellectual test can be devised to determine in every case whether a particular bodily injury is, or is not, caused by, or arises out of the use of a motor car’.[41] Their Honours then said:
Nevertheless there are certain propositions of both a negative and a positive character which appear to be clearly established.
(1)The relevant use of the motor vehicle is not confined to the use of the vehicle in motion: see the authorities referred to by O’Bryan J, but we agree with his Honour that static use will often be more difficult to bring within the statutory expression than use in motion.
(2)A distinction is to be drawn between using a motor car and working upon it. This distinction is not significant for present purposes and it is unnecessary to pursue it, but again not every case which involves working on a vehicle is a case in which the vehicle is not ‘used’.
(3)The injury must in some way be a consequence of the use of the vehicle. This is clearly expressed in the language of Windeyer J in the case of R J Green & Lloyd Pty Ltd, at p 446, where his Honour said: ‘The only limitation upon its generality that I can see is that the injury must be in some way a consequence of a use of the vehicle as a motor vehicle. Any use that is not utterly foreign to its character as a motor vehicle is, I consider, covered by the words.’
(4)The use relied upon must be ‘use’ that is in some way incidental to the normal use of a motor vehicle: per Windeyer J, at p 447. But injuries may arise out of the use of a motor car even though they do not occur or arise whilst the motor car is in fact being used. For instance, 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. An infinite number of variations of this example might be imagined.[42]
[39]Reasons, [30].
[40][1980] VR 469, 471.
[41]Hoffman [1989] VR 197, 200.
[42]Ibid 200–1.
Their Honours then expressly endorsed Tadgell J’s judgment in Lamont, in which his Honour said that even though a collision with a motor car may occur at a time when the motor car was not in use, that might not be fatal to a claim if there was some prior use of the motor car out of which the injuries could be said to have arisen.[43]
[43]Ibid 201–2.
In May, the Full Court of the Supreme Court had to consider a case of a small child who suffered brain damage as a result of inhaling carbon monoxide while seated in his father’s car. The car was being repaired at a service station. The repairs were almost finished when the child and his parents arrived at the station. The child was placed in the car to prevent him running around the service station, and in anticipation of and preparatory to an early departure. He was in the car for about 15 minutes while the mechanics adjusted its running engine.
After noting Windeyer J’s statement in Green that the expression ‘arising out of’ does not include cases of bodily injury in which the use of the vehicle ‘is a merely casual concomitant, not considered to be, in the relevant causal sense, a contributing factor’,[44] the Full Court observed that in Hoffman the Court had agreed that the expression ‘non-coincidental nexus’ used by Tadgell J in Jorgensen,[45] expressed positively the necessary link between ‘use’ and ‘injury’.[46] The Full Court went on to say that if the inhalation of the carbon monoxide arose out of the use of the car, it did not matter from whose use of the car that the inhalation arose. It was not necessary for it to arise out of the use of the car by someone other than the injured person. It was sufficient if it arose out of the injured person’s use of the car.[47] Ultimately the Court concluded that the inhalation which resulted in the injury in that case occurred while the child, being in the car in anticipation of, and preparatory to, a journey, was making a use of the car which was incidental to the forthcoming journey. As the Court put it:
It is because he was in the car and making that use of it that he inhaled the carbon monoxide being produced by the car. It follows that he was injured in consequence of making that use of the car. There is a non-coincidental nexus between the injury and that use.[48]
The Court thus held that the child’s injury arose out of the use by him of the car ‘notwithstanding that what might be regarded as the ultimate or primary cause of it was the running of the engine by the men doing the repairs’.[49]
[44]May [1989] VR 981, 985.
[45]The Full Court’s reference to Jorgensen was a reference to Jorgensen v Motor Accidents Board, one of the three appeals heard by Tadgell J in Lamont.
[46]May [1989] VR 981, 985–6.
[47]Ibid 986.
[48]Ibid 987.
[49]Ibid 988.
In State Insurance Office v Jura Concrete Pumping,[50] the Appeal Division of the Supreme Court had to consider a case involving the use of a concrete pump mounted on and permanently affixed to a truck modified for that purpose. During a pouring of concrete, the truck was elevated by four rams, with none of its wheels touching the ground. The truck’s engine provided the power for the concrete pump. A worker was injured when a clamp fractured as a result of a surge in pressure of the concrete. The surge in pressure caused the worker to fall and suffer injury.
[50][1990] VR 331 (‘Jura Concrete’).
The Appeal Division held that the injury arose out of the use of the unit in question. Their Honours identified the correct approach as being to ask, ‘whether the unit designed and modified as it was to be used as a mobile concrete pump, fell within the definition of “motor car” in s 3 of the Motor Car Act’. The Court answered that question in the affirmative, saying that the questions which then had to be asked were, ‘whether it [the unit] was at the relevant time being used in a way that was incidental to its normal use, and if so, whether the injuries arose out of such use of it as a mobile concrete pump’.[51] The Court answered these questions in the affirmative, saying:
It is not significant that at the relevant time it was not being used ‘as a motor vehicle’ in the sense that it was not mobile and in the sense that it was performing its function as a concrete pump and not ‘as a motor vehicle’.
[51]Ibid 334.

Parties’ submissions

The applicant’s primary case was that her injuries arose out of the first respondent’s use of the vehicle in driving the vehicle to the place where he parked it, in the open, with its windows up, exposing the applicant to the excessive heat generated inside the vehicle, and leading to the applicant suffering heatstroke and the other injuries she sustained. Alternatively, the applicant submitted that her injuries arose out of her own prior use of the vehicle as a passenger when it was driven to the place at which it was parked in Brighton, or her own continued use of it as a passenger from the time at which it was parked until the time when she was subsequently found by her parents.
Additionally, the applicant submitted that there was a non-coincidental nexus between the uses of the vehicle just described and her injuries. She submitted that, but for the first respondent driving the vehicle and parking it in the place he parked it and exposing her to the heat that parking it in that place exposed her to, she would not have suffered injury. She also submitted that but for her use of the vehicle as a passenger as described above, again she would not have suffered injury.
The second respondent supported the trial judge’s reasoning, submitting that the judge was correct when he found that the applicant was injured ‘because she was unconscious and immobile inside the vehicle which had been used as the receptacle in which she was injected with heroin’.[52] The second respondent then submitted that the judge was correct when he concluded that the use of the vehicle as a place or receptacle in which to inject the plaintiff with heroin was not incidental to the normal use of the vehicle as a motor vehicle.[53]
[52]Reasons, [35].
[53]Ibid [33].
The second respondent also submitted that the judge was correct in concluding that the applicant remained in the vehicle because she was abandoned, unconscious and immobile, by the first respondent;[54] that the applicant’s injuries were, ‘at most, a casual concomitant of having been transported in the vehicle’;[55] and that the relationship between the first respondent driving the vehicle to and parking it at the location in Brighton, and the applicant’s injuries, was merely coincidental.[56]
[54]Ibid [35].
[55]Ibid [33].
[56]Ibid [35].
Additionally, the second respondent submitted that the judge was correct when he rejected the applicant’s submission that she continued to use the vehicle as a passenger until she was found; correct when he distinguished Dickinson and May; and correct when he concluded that the applicant (unlike the injured children in Dickinson and May who were in their respective vehicles, either in the course of a temporarily interrupted journey, or in anticipation of a journey) was in the vehicle ‘because she was abandoned there in an unconscious and immobile state’.[57]
[57]Ibid [32].

Analysis

The reasoning of the trial judge focuses upon the fact that the applicant was sitting in the vehicle when she was injected with heroin.[58] Thus, the judge described the vehicle as being used at that time as ‘a place or receptacle in which to inject [the applicant] with heroin’; and noted that such an activity ‘was not incidental to a normal use of the vehicle as a motor vehicle’.[59] With respect, however, such a characterisation of the use of the vehicle many hours prior to the applicant suffering injury cannot gainsay the question of whether her injuries arose out of a later use of the vehicle. Merely because it might be said that injuries arose out of some non-normal use of a motor vehicle does not mean that the same injuries cannot also be said to have arisen out of some other (and, in this case, later in time) use of the vehicle as a motor vehicle. As was made plain in Dickinson, there must be 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 purpose of the words ‘arising out of’ is to expand the scope of the relationship and not merely replicate the words ‘caused by’.
[58]Ibid [31], [33] and [35].
[59]Ibid [33].
Similarly, a conclusion that the applicant’s injuries arose out of her being abandoned in the vehicle,[60] does not foreclose the question of whether they also arose out of some other use of the vehicle as a motor vehicle – such as, for example, the first respondent’s use of the vehicle in driving it to the place where he parked it in Brighton.
[60]Ibid [32].
In our view, the applicant’s injuries arose out of the first respondent’s use of the vehicle in driving it to and parking it in the location in which it was parked in Brighton, resulting in the applicant being exposed to excessive heat within the vehicle and thereby causing her injuries. The temperature within the car was plainly a consequence of the physical features of the vehicle and the driver’s decision to park it outside and exposed to the elements. 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. As was posited by Young CJ and McGarvie J in Hoffman:
[I]f 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.[61]
Similarly, we do not see the fact that the first respondent had been absent from the vehicle for more than some short period of time, during which the manner and place in which he parked the vehicle caused its internal temperature to rise to a level which was unsafe for the applicant, as an impediment to the conclusion that the applicant’s injuries arose out of the first respondent’s use of the vehicle.
[61]Hoffman [1989] VR 197, 200–1.
Additionally, while the judge observed that in the present case there was no collision,[62] the fact that there was no collision was no bar to a conclusion, on all of the evidence (in this case contained in the agreed facts), that the applicant’s injuries arose out of the use of the vehicle. So much is clear from the ultimate conclusion of the courts in the cases of Fawcett, Green, Dickinson, May and Jura Concrete.
[62]Ibid [35].
While our conclusion that the applicant’s injuries arose out of the first respondent’s use of the vehicle is sufficient to dispose of this application for leave to appeal and appeal in the applicant’s favour, had it been necessary, we would also have concluded that her injuries arose out of her use of the vehicle as a passenger. As the authorities make plain, injuries may arise out of a use of a motor vehicle which is antecedent to the time at which injury is sustained. On that basis, we would conclude that the applicant’s injuries arose out of her use of the vehicle as a passenger when it was driven to the place at which it was parked in Brighton — irrespective of whether the applicant was using the vehicle as a passenger from that time until the time she suffered injury.
As to the question of whether the applicant was using the vehicle as a passenger at the time she sustained injury, it may be observed that at the time the journey to Brighton came to an end and the vehicle was parked in the location where the applicant suffered injury, the applicant remained unconscious. For her, the journey had not ended. She remained a passenger in the vehicle. There are thus good grounds to contend that she was continuing to use the vehicle as a passenger at the time she suffered injury. In view of our conclusion above, however, it is not necessary for us to finally determine whether the applicant’s injuries arose out of her use of the vehicle as a passenger at the time she suffered injury.

Conclusion

It follows from the above that there should be orders granting the applicant leave to appeal, allowing the appeal and setting aside the orders of the trial judge.
In oral argument, the second respondent accepted that if we concluded that the applicant’s injuries arose out of the use of the vehicle, in addition to the orders referred to above, this Court should make an order answering the preliminary question, ‘Yes’. Accordingly, we will also make an order answering the preliminary question ‘Yes’.
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[2022] VSCA 183

31 August 2022