RBK v Montague

Case [2022] VSCA 183

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:

  1. 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.

  2. 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.

  3. 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…

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AGLC
RBK v Montague [2022] VSCA 183
Case
[2022] VSCA 183
Decision Date

CaseChat Overview and Summary

In the matter of RBK v Montague, the Supreme Court of Victoria was tasked with determining whether the Transport Accident Commission (TAC) is liable to indemnify the applicant for the injuries sustained by a passenger, who suffered heatstroke and consequential injury after being left unconscious in a parked vehicle. The applicant, the owner of the vehicle, had driven to pick up her friend Jessica and her father, Leonard Montague, before purchasing heroin. After the applicant was injected with heroin and fell unconscious, Montague and Jessica moved her to the back seat of the vehicle. Montague drove the vehicle to Southbank, where he parked it and left the applicant unconscious while he and Jessica attended Crown Casino. Several hours later, Montague drove the vehicle to Brighton, parked it, and left the unconscious applicant in the vehicle. The applicant subsequently developed heatstroke and other injuries as a result of the heatstroke.
The court had to decide whether the injury sustained by the applicant arose out of the use of the motor vehicle as required by s 94(1) of the Transport Accident Act 1986 (Vic). The court examined the relevant legislative provisions and previous case law to determine the correct interpretation of the phrase "arising out of the use of [a] motor vehicle." The court found that the applicant must establish that her injuries were caused by or arose out of the use of a motor vehicle, rather than being directly caused by the driving of the motor vehicle. The court held that the phrase "arising out of the use of [a] motor vehicle" should be construed broadly to give effect to the purpose of the legislation, which is to provide an indemnity in respect of injuries caused by or arising out of the use of a motor vehicle. The court concluded that the applicant's injuries did arise out of the use of the motor vehicle, as the chain of events leading to the injuries began with the use of the vehicle.

The court's reasoning was based on the broad interpretation of the phrase "arising out of the use of [a] motor vehicle," which was consistent with the purpose of the legislation and previous case law. The court found that the applicant's injuries were a direct result of being left unconscious in the parked vehicle, which was a consequence of the use of the vehicle. The court also noted that the TAC's liability to indemnify the applicant for the injured person's claim for damages was not limited to injuries directly caused by the driving of the motor vehicle. The court held that the TAC is liable to indemnify the applicant for the injured person's claim for damages, as the applicant's injuries arose out of the use of the motor vehicle.

In conclusion, the Supreme Court of Victoria found that the Transport Accident Commission is liable to indemnify the applicant for the injured person's claim for damages, as the applicant's injuries arose out of the use of the motor vehicle. The court's decision was based on a broad interpretation of the phrase "arising out of the use of [a] motor vehicle," which was consistent with the purpose of the legislation and previous case law. The court held that the TAC's liability to indemnify the applicant for the injured person's claim for damages is not limited to injuries directly caused by the driving of the motor vehicle. The court's decision in this case provides clarity on the scope of the TAC's liability under s 94(1) of the Transport Accident Act 1986 (Vic) and will be of relevance to future cases involving similar circumstances.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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