RBK v Montague
[2021] VSC 336
•10 June 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2017 04962
| RBK | Plaintiff |
| v | |
| LEONARD MONTAGUE | First Defendant |
| and | |
| TRANSPORT ACCIDENT COMMISSION | Second Defendant |
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JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 May 2021 |
DATE OF JUDGMENT: | 10 June 2021 |
CASE MAY BE CITED AS: | RBK v Montague & Anor |
MEDIUM NEUTRAL CITATION: | [2021] VSC 336 |
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ACCIDENT COMPENSATION — Trial of preliminary question — Plaintiff unconscious and immobile in vehicle for two days following injection of heroin — Whether injuries arose out of the use of the vehicle — Whether Transport Accident Commission liable to indemnify first defendant — Transport Accident Act 1986 (Vic), s 94(1)(a) — Government Insurance Office (NSW) v RJ Green & Lloyd Pty Ltd (1966) 114 CLR 437 — Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500 — May v Transport Accident Commission [1989] VR 981 — Transport Accident Commission v Hoffman [1989] VR 197 — Lamont v Motor Accidents Board [1983] 1 VR 88.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | M Britbart QC and N Dubrow | Adviceline Injury Lawyers |
| For the Second Defendant | J Ruskin QC and B Jellis | Solicitor to the Transport Accident Commission |
HIS HONOUR:
In January 2012, after being injected with heroin while sitting in her stationary motor vehicle, the plaintiff became unconscious. The first defendant, who had supplied the heroin to the plaintiff, drove the vehicle from the location at which the plaintiff was injected to Southbank, and later to Brighton, where he parked it on the street near his residence. The plaintiff remained unconscious and immobile in the vehicle for over two days, and when she was found had suffered significant injury.
The plaintiff alleges the first defendant negligently left her unconscious from a heroin overdose in a parked vehicle for about two days, as a result of which she was subjected to high temperatures and sustained injuries. Summary judgment against the first defendant, in default of appearance, was given on 5 May 2020. The plaintiff seeks a declaration that the second defendant, the Transport Accident Commission (TAC), is liable to indemnify the first defendant pursuant to s 94(3) of the Transport Accident Act 1986 (the ‘TA Act’). TAC denies indemnity on the basis that the plaintiff’s alleged injuries were not ‘caused by or arising out of the use of’ the vehicle within the meaning of s 94(1)(a) of the TA Act, and that the first defendant is not a ‘driver’ for the purposes of ss 3 and 94(1)(a) of the TA Act.
The proceeding was listed on 31 May 2021 for trial of the preliminary question stated as follows:
Is the Transport Accident Commission liable to indemnify the First Defendant pursuant to section 94(1)(a) of the Transport Accident Act 1986 (Vic)?
That question is to be answered on facts agreed by the parties.
The agreed facts
The plaintiff was born on 15 May 1992. She is now 29 years of age.
On 5 January 2012, when she was aged 19, the plaintiff drove her car (‘the vehicle’) to pick up her friend Jessica in Balaclava. The plaintiff then drove the vehicle to South Melbourne, where she and Jessica met the first defendant, Leonard Montague. The first defendant is Jessica’s father.
The vehicle was a registered motor vehicle pursuant to s 3 of the TA Act.
At South Melbourne the plaintiff paid for heroin, which was obtained from the first defendant. At some time between 4pm and 5pm on 5 January 2012 the plaintiff was injected with heroin in the company of the first defendant and Jessica. At that time she was sitting in the driver’s seat of the vehicle. Within minutes of the injection the plaintiff fell unconscious. The first defendant and Jessica then moved the plaintiff onto the back seat of the vehicle.
The first defendant then drove the vehicle to Southbank, where he parked the vehicle. The plaintiff was left unconscious in the back seat of the vehicle for several hours while the first defendant and Jessica attended Crown Casino. The first defendant wrote the plaintiff a note indicating that he had locked the vehicle and taken the keys.
When the first defendant and Jessica returned to the vehicle, the plaintiff was still unconscious. The first defendant then drove the vehicle to Brighton and parked it near his residence on the street, at or near the address 69 William Street, Brighton. By this time, it was before sunrise on 6 January 2012. The plaintiff was still unconscious in the back seat of the vehicle.
The first defendant left the plaintiff unconscious in the parked vehicle.
The plaintiff was found unconscious in the vehicle on 7 January 2012 at about 11:00pm by her parents. She then received medical treatment.
The plaintiff remained unconscious in the parked vehicle from late afternoon on 5 January until she was discovered late on 7 January 2012. There is no evidence that the first defendant returned to the vehicle after parking it in Brighton. The vehicle remained stationary and parked throughout that period.
Over the two days that the plaintiff lay unconscious in the vehicle:
(a) The maximum air temperature on 6 January 2012 was between 23.3 and 24.4 degrees Celsius;
(b) The maximum air temperature on 7 January 2012 was between 29.9 and 30.7 degrees Celsius.
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 plaintiff was discovered in the vehicle at 11pm on 7 January 2012 her body temperature was recorded by ambulance officers at 40.5 degrees Celsius.
The plaintiff suffered significant injury including heat stroke, hyperthermia, cardiac arrest, multiple organ failure, bilateral pulmonary emboli, severe motor neuropathy and paraplegia.
The combination of heat stroke and immobility whilst having been left in the parked vehicle were a cause of the plaintiff’s injuries.
Statutory provisions
The indemnity obligations of TAC are governed by div 2, pt 6 of the TA Act. Within that division, s 94 relevantly provides:
(1) 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; …
Submissions
Plaintiff
The plaintiff’s injuries arose out of the use of the vehicle in two ways: (a) the plaintiff’s use of the vehicle as a passenger; and (b) 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 plaintiff was rescued from the vehicle on 7 January.
The plaintiff fell unconscious as a result of a heroin overdose on 5 January 2012, and remained an unconscious passenger in the vehicle when it was driven on 5 and 6 January and then parked. The plaintiff’s injuries resulted from her remaining unconscious and immobile in the enclosed space of the vehicle exposed to high temperatures. It is not known whether the cause of the plaintiff remaining unconscious and immobile until rescued was the use of heroin or the injuries she suffered as a result of exposure to the climatic conditions in the parked vehicle. Her use of the vehicle as a passenger was ongoing because she was not able to get out of the vehicle herself and was not removed from the vehicle. This use only ceased at 11:00pm on 7 January when she was rescued. Her use of the vehicle during this period is akin to that of a child placed in a vehicle as a passenger and left asleep or restrained in the vehicle when it is parked who then suffers injury. In the circumstances of this case there was a continuing use of the vehicle, though it was stationary.[1] Even if the plaintiff’s use of the vehicle as a passenger is characterised as a prior rather than continuing use, there is a sufficient causal or consequential relationship between it and her injuries to satisfy the test.
[1]Government Insurance Office (NSW) v RJ Green & Lloyd Pty Ltd (1966) 114 CLR 437, 442 (Barwick CJ), 446 (Windeyer J) (‘Green & Lloyd’); Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500, 505 (‘Dickinson’).
The first defendant drove the vehicle on 5 and 6 January 2012 with the plaintiff as an unconscious passenger, then parked it outside his residence in Brighton in a position such that it was exposed to the elements in a way that caused the interior of the vehicle to heat. Due to her unconscious state the plaintiff had no ability to exit the vehicle. The plaintiff’s injuries were caused, at least in part, by the temperatures in the vehicle. In the circumstances there is a sufficient non-coincidental nexus between the first defendant’s use of the vehicle, which included the position in which he parked it, and the plaintiff’s injuries for it to be said that her injuries arose out of the prior use of the vehicle by the first defendant.
TAC
The indemnity for which s 94(1)(a) of the TA Act provides is not unconfined, such that it is engaged by any injury involving, in any way, a registered motor vehicle.[2] Here there was only coincidental involvement of the vehicle.
[2]Fawcett v BHP By-Products Pty Ltd (1960) 104 CLR 80, 87.
A passenger is a recipient of a journey or something incidental to a journey. To use heroin in a sedan vehicle, and to then remain unconscious and immobile inside for a lengthy time, is not use of a vehicle as a passenger. The longer a person is in a car away from a journey, the less sensible it is to refer to such a person as a passenger. In this case the plaintiff’s injuries were unconnected with any journey in the vehicle. The plaintiff was simply in the vehicle where she was unconscious and abandoned.
While it is incidental to the normal use of a car to park it, it is not incidental to the normal use for the driver to leave a drugged and unconscious person indefinitely in a parked and abandoned car, with the result that injury is sustained. There is no evidence that the plaintiff’s unconsciousness was in some way caused or perpetuated by parking the vehicle where it was.
There was in this case merely a coincidental nexus between the injury and any previous use made of the vehicle. The plaintiff’s injury was neither sustained in the course of a journey, nor in the interregnum between journeys, nor on the point of commencing a new journey, however short. The injuries were sustained only after the vehicle was parked, abandoned on a suburban street, and left there for some time. This is not a use but rather a disuse of the vehicle.
Authorities
Whether an injury arises out of the use of a motor vehicle is a question of fact to be determined on all the circumstances of the particular case.[3]
[3]Government Insurance Office (NSW) v King (1960) 104 CLR 93, 95 (Dixon CJ); Green & Lloyd (n 1) 448 (Windeyer J); Transport Accident Commission v Hoffman [1989] VR 197, 200 (‘Hoffman’).
In Government Insurance Office (NSW) v RJ Green & Lloyd Pty Ltd (‘Green & Lloyd’)[4] a worker was injured when a hoist was being loaded onto the table top of a truck. The Court held that the injury to the worker arose out of the use of a motor vehicle. Barwick CJ said:
[4]Green & Lloyd (n 1).
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.[5]
[5]Ibid 442.
In the same case, in relation to ‘use’, Windeyer J 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.
…
Repeating what I said in Fawcett v. B.H.P. By-Products Pty. Ltd., 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.[6]
Windeyer J then described the necessary connection between use and injury:
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 a relevant causal sense, a contributing factor.[7]
The features of the case which were central to the Court’s conclusion were, first, that the truck was designed to transport the hoist, and, second, the hoist was being loaded on the truck so that it could be moved to another location.
[6]Ibid 446–7 (citations omitted).
[7]Ibid 447.
Dickinson v Motor Vehicle Insurance Trust (‘Dickinson’)[8] and May v Transport Accident Commission (‘May’)[9] are two cases involving injury to children who were at the time within passenger motor vehicles. In Dickinson a child was asleep in a car which her father parked and temporarily left to buy something at a nearby shop. The child was injured when her brother, playing with matches he found in the car, lit a fire. The High Court stated that it was the injury which must arise out of use of the motor vehicle, not liability for the injury.[10] As to the issue of use the Court said:
There can, in our view, be no doubt that the motor car 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.[11]
[8]Dickinson (n 1).
[9][1989] VR 981 (‘May’).
[10]Dickinson (n 1) 504.
[11]Ibid 505 (citations omitted).
In May two children were placed in a car by their parents while repair work was being done, in preparation for an expected early departure from a mechanic’s workshop. One of the children inhaled carbon monoxide produced by the motor of the car, which was running for the purpose of the repair work being performed, resulting in injury. The Full Court noted that when their parents placed the children in the car they anticipated a wait of only minutes before it would be ready to leave.[12] The Court stated:
We regard it as appropriate when dealing with children of this age to treat the reasons and purpose of the adults who placed them in the vehicle as relevant in considering whether children used the vehicle.[13]
Further in relation to use the Court said:
If the inhalation arose out of the use of the car it does not matter from whose use it arose. It is not necessary that it arise from the use of the car by someone other than the injured person. It is sufficient if it arose out of [the child’s] use of the car.
Because it is unwise to enter a moving vehicle, an almost invariable incident of using a car for a journey is that some time is spent sitting in the stationary car before it moves off on its journey.[14]
[12]May (n 9) 985.
[13]Ibid.
[14]Ibid 986.
Lamont v Motor Accidents Board (‘Lamont’)[15] and Transport Accident Commission v Hoffman (‘Hoffman’)[16] were each cases involving instances in which a cyclist collided with a parked car and was injured. In Hoffman, Young CJ and McGarvie J noted that the authorities revealed no satisfactory intellectual test to determine in every case whether injury arises out of use of a motor car, but that the following propositions are established:
[15][1983] 1 VR 88 (‘Lamont’). Tadgell J heard three appeals together: Lamont v Motor Accidents Board; Hodkinson v Motor Accidents Board and Jorgensen v Motor Accidents Board.
[16]Hoffman (n 3). The Court heard three appeals together: Transport Accident Commission v Hoffman; Transport Accident Commission v Mosley and Transport Accident Commission v Blencowe.
(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.[17]
In two of the matters in Hoffman, and in a matter considered by Tadgell J in Lamont, the vehicle with which the cyclist collided had been parked for some time and was not then in use. In Lamont Tadgell J said:
I return finally to the matter of Jorgensen. My conclusion expressed above was that his collision with a motor car did not occur at a time when the motor car was in use. That might not be fatal to his claim, however, if there were some prior use of the motor car out of which his injuries could be said to have arisen. It does not seem to me that injuries must arise during the course of use of a motor car in order to arise out of such use, although this is of course what happened in the cases of Lamont and Hodkinson. As I have indicated I think there was evidence before the Tribunal from which it could have been properly inferred that the car with which Jorgensen collided had been in use at the time it was parked at the kerb—it had fairly obviously been purposely driven there. It comes down, then, to a question whether the fact that Jorgensen’s accident and injuries were respectively suffered and sustained after, but not during, the use of a motor car is sufficient to distinguish his case from the cases of Lamont and Hodkinson. In my opinion it is not sufficient. If it is right to say that injuries need not occur during the course of use of a motor car in order to arise out of the use, there is really very little material distinction between the three cases. Jorgensen also sustained his injuries by physical collision with a car at the place to which it had been brought in the course of its user. While it is not possible to conclude that its user was continuing at the time of the collision, a sufficient non-coincidental nexus exists between prior user and the injuries to enable it fairly to be said that the latter arose out of the former. The use of the car did not so directly give rise to Jorgensen’s injuries as did the use in the cases of Lamont and Hodkinson. Nevertheless it may still be said that the injuries would not have been sustained as they were had it not been for the fact that the car had been brought in the course of its ordinary user to the place where it was at the time of the accident.[18]
[17]Ibid 200–1.
[18]Hoffman (n 3) 201–2.
In Hoffman Young CJ and McGarvie J expressly approved Tadgell J’s reasoning in the matter of Jorgensen. In both cases the motor vehicle with which the cyclist collided had been parked on a public road.
Analysis
When the plaintiff was injected with heroin she was sitting in her stationary motor vehicle. As a result of being injected the plaintiff became unconscious. She remained unconscious and immobile for over two days. When she was discovered in the vehicle the plaintiff had suffered very significant injuries. The agreed facts do not establish if or when her injuries were a cause of the plaintiff’s unconscious and immobile state.
I reject the plaintiff’s submission that she continued to use the vehicle as a passenger until she was found. The plaintiff did not remain in the vehicle on 6 and 7 January 2012 as an incident of its use for a journey. Unlike the injured child in Dickinson, the plaintiff was not in the vehicle in the course of a journey which was temporarily interrupted. Nor was the plaintiff present in the vehicle in anticipation of a journey commencing, as in May. The plaintiff was in the vehicle because she was abandoned there in an unconscious and immobile state. The plaintiff did not remain a passenger in the vehicle after it was parked and left in Brighton on 6 January, and the injuries she suffered were not a consequence of her continuing or prior use of the vehicle as a motor vehicle.
On 5 January the vehicle was used as a place or receptacle in which to inject the plaintiff with heroin. That 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. The plaintiff was transported in the vehicle from South Melbourne to Southbank, and then to Brighton. The agreed facts do not establish that the plaintiff was injured because her body was subjected to trauma or some other physiological impact as a consequence of being transported. The plaintiff 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 defendant. The plaintiff’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 plaintiff being discovered in her injured state.
I reject the plaintiff’s submission that the circumstances of her case are analogous to those in Hoffman and the matter of Jorgensen in Lamont, where injuries arose out of the previous use of a vehicle being driven to and parked at a place where a cyclist collided with it. In Lamont, after noting that ‘arising out of’, though denoting a less immediate relationship than cause and effect, still carries a sense of consequence, Tadgell J said:
It is to be emphasized that the present three cases, unlike any other touching on the subject to which I was referred or which I have found, each involved a physical collision with a motor car on the highway at the place to which it was brought in the course of its user. The question whether such user gave rise consequently to injuries sustained will usually be less finely balanced than that in a case where there is no such physical collision.[19]
In Hoffman, commenting on Tadgell J’s reasoning in Lamont, Young CJ and McGarvie J said:
With the greatest respect to O’Bryan J, 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.[20]
The circumstances in Jorgensen and Hoffman which led the Court to conclude the test was satisfied were that there was a collision between a vehicle left parked on a highway and a cyclist.
[19]Lamont (n 15) 96.
[20]Hoffman (n 3) 202.
In the present case there was no collision. The plaintiff 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 defendant. The relationship between the first defendant driving the vehicle to and parking it at the location in Brighton and the plaintiff’s injuries was merely coincidental.
Conclusion
It has not been established that TAC is liable to indemnify the first defendant under s 94(1)(a) of the TA Act. The preliminary question will be answered no. I will hear from the parties in relation to the appropriate form of orders, including as to costs.
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