Transport Accident Commission v RBK (a Pseudonym) & Anor

[2023] HCATrans 70

[2023] HCATrans 070

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M63 of 2022

B e t w e e n -

TRANSPORT ACCIDENT COMMISSION

Applicant

and

RBK (A PSEUDONYM)

First Respondent

THE ESTATE OF THE LATE LEONARD MONTAGUE

Second Respondent

Application for special leave to appeal

GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 19 MAY 2023, AT 2.03 PM

Copyright in the High Court of Australia

GORDON J:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR J. RUSKIN, KC appears with MR B.W. JELLIS for the applicant.  (instructed by Transport Accident Commission)

MS F.A.L. RYAN, SC appears with MS S. GOLD for the first respondent.  (instructed by Redlich’s Work Injury Lawyers)

GORDON J:   There is no appearance for the second respondent.  Mr Ruskin.

MR RUSKIN:   Thank you, your Honour.  The matters of general importance which, we submit, justify the grant of special leave in this case concern the proper construction of the indemnity which is contained in section 94(1) of the Transport Accident Act, specifically asks the question, did the Court of Appeal err in finding that, in the circumstances of this case, the respondent’s injury arose out of the use of the motor vehicle?

EDELMAN J:   Mr Ruskin, do you challenge any of the legal principles in relation to that phrase that were set out by this Court in Fawcett, Green, or Dickinson?

MR RUSKIN:   No, we do not, sir.

EDELMAN J:   Do you say that there is anything in Fawcett, Green, or Dickinson that did not cover the field of principles by which those words should be interpreted and applied?

MR RUSKIN:   No.  What we say is that those tests – and there are about three incarnations of what “arising out of”, how it should be confined – does cover the field, and they are that the incident must arise out of a use that is “incidental to a normal use” – that is Green; or “not utterly foreign, that is Green again; fairly described as “arising out of”, which is Fawcett; or “fairly . . . within the conception of use”, but not merely a “casual concomitant”, which is Green.  So, we respectfully say, those are the general descriptions of the “arising out of” concept.

EDELMAN J:   Your submission, really, then, is that the Court of Appeal did not correctly apply the established legal principles to the facts before it.

MR RUSKIN:   Yes, and that is what we do say, your Honour.  What they did, in effect, by saying it does not gainsay another way of looking at it, namely normal aspects, effectively bypassed or subtracted from the proper consideration the very tests that confined the meaning carefully in those cases.

Perhaps another way of putting is to say, why did the High Court in Dickinson, for example, go to the trouble of carefully saying that what happened in that case with the matches was that the father had temporarily left the children, that is, it was a temporary interruption of journey, when all the High Court need say was, well, the car was driven, the car was parked, finito.  But they went to a considerable care to keep the confinement of this important indemnity within proper limits.

EDELMAN J:   Is that anything more than saying, well, the car was not just a coincidence to the injury?

MR RUSKIN:   Yes, it is an adaptation of casual coincidence.  That is to say, you have to make sure that you pay homage to the notion that the non‑normal use of the vehicle is considered properly in the scheme of how the injury arose.  And in this case, this was a case about – and we respectfully say the trial judge got it right in those paragraphs, 23 and 33, et cetera, the trial judge noted it started with a non-normal use, indubitably, which was the injection of heroin in the car.  That is a non-normal use.  And that was critical because it made her unconscious.  It ended when the respondent was abandoned.  She was not left, as it were, in a temporary way as in May and Dickinson.  Can we say ‑ ‑ ‑

GORDON J:   Can I ask one question about that, Mr Ruskin, because you have got another hurdle, have you not?  And that is the way in which the Court of Appeal dealt with it at paragraph 49, because they dealt with it on base of two uses.

MR RUSKIN:   This is the paragraph about passenger, your Honour?

GORDON J:   That is correct.

MR RUSKIN:   Yes.  The answer to that is that in no sensible way, we say that with respect, of course, is the plaintiff a passenger.  The plaintiff was anteriorly a passenger because she was in the car.  She was an unconscious passenger.  And if the incident occurred as they were driving and another car hit them, there would be no problem.

But what the Court did in error here was to adapt the anterior use concept which arose in the cases of Hoffman and the other case referred to there, Lamont, in a way that was completely different to this.  Just to rehearse that for less than a moment:  in those cases, you had a normal use of a car – it was parked – anteriorly to the bike hitting the car.  It is no difficulty with that.

But to say that the plaintiff was anteriorly a passenger when she was unconscious in the vehicle and remained a passenger when the truth is she was abandoned – she was not a passenger in a sensible sense.  You see, this was a case in which the respondent had the burden.  And the respondent could have called evidence if that be the case, that this was a temporary interruption; they went into the house, and they were going to come back.  But she was abandoned.

She was abandoned, as the trial judge noted, and there did not seem to be much of doubt about that.  To call an abandoned, unconscious person a passenger is not, in any sensible sense, we would say, a proper description of passenger.  The anterior ‑ ‑ ‑

GORDON J:   The abandonment is not really of critical importance, is it?  I mean, there are a number of cases where there has been abandonment, but yet it has still been covered by the relevant provisions.  We have authorities which address those questions.

MR RUSKIN:   Well, in the context of this case, the question is asked this way.  Assume we are correct that she is abandoned in the car and that is when the injury arose, so you need to say, when the injury arose the facts were:  she was unconscious, she was abandoned in a vehicle, indefinitely.  And to say that was incidental to the normal use of a vehicle cannot be, we respectfully say, correct because it is a combination of two abnormal uses:  one, the heroin; two, the abandonment in a helpless condition, as to which the car was a casual concomitant, because it might have been a receptacle – it might have been anything.

EDELMAN J:   Really, Mr Ruskin, your case really comes down almost entirely to a dispute about the sentence in paragraph 47 where the Court of Appeal says that there was:

a non‑coincidental nexus between the parking of the vehicle and the applicant’s injuries –

MR RUSKIN:   Yes, and could we ‑ ‑ ‑

EDELMAN J:   If you cannot get over that hurdle, your case loses, does it not?

MR RUSKIN:   Well, it has to be – of course, we have to say it is a non‑coincidental use.  If it is a non-coincidental use, then, in accordance with authority, we do not get up.  If it is a casual coincidence, and this is what – but this is very important, because this is an indemnity, of course, and it broadens the test.  There is no doubt, we would submit, that the effect of saying at paragraph 45, it cannot gainsay the questions whether the injuries arose out of a later use, is another way of saying, forget about the non-natural use – which was the heroin and the abandonment – providing we can find some normal use, that can be the test.  So, that creates a “but for” test and broadens the language the indemnity works.  Could we take the Court to ‑ ‑ ‑

GORDON J:   Is that right, given the analysis which follows, at the end of 45?  They make two points.  They say, as a matter of fact, the fact that there is a “non-normal use” to – at the beginning – does not disentitle the relief.  Then, they go on to explain that, by reference to the causal or consequential relationship required that was made plain in Dickinson.

MR RUSKIN:   Yes, but it is not correct because in Dickinson there was no non‑normal use at all.  This is the first case where indubitably there has been abnormal – if I could use that way – or non‑normal uses of the vehicle which were critical to the circumstances of “arising out of”, and what the court has done here is to say, well, we can say there was parking, and there clearly was, and there is driving, and there clearly was, and we do not need to consider what were critical features here, which was the drug use and the abandonment.  Can I just take the Court to the paragraph above 47 ‑ ‑ ‑

EDELMAN J:   Does that mean, Mr Ruskin, that one needs to read, now, section 94(1)(a) as referring to “use” of the motor vehicle being a normal use of the motor vehicle?

MR RUSKIN:   It means normal or incidental to normal.  We can use all the phrases in the other cases, your Honour.  Let us take “incidental to normal use”.  That is what the cases say is the confining language of that statute, because otherwise they would never have gone to the trouble of, in Fawcett, in Green, in Dickinson and in May – remembering May was the case where the monoxide got to the children and the Full Court was very clear in saying this is a case in which the pre‑journey stop to have the car checked was incidental to the normal use.  If they did not have to go to that trouble, they could have just said the car was parked; finished, driven and parked.  So, it is doing no more than following authority, we would say.

So that, we say, just above 48 really encapsulates the error.  Can I just take the Court to that for a moment.  We do not see the fact that the first respondent had been absent from the vehicle for more than a short time.  Now, respectfully, we say that is an understatement, but, more importantly, it mischaracterises.  There was no time, short or otherwise, that he was absent.

He was absent with no evidence that he would ever – when he would come back, if he would.  Then there is simply the reference to the parking but leaves out the drug use and the abandonment, both of which are central non‑natural uses, or not incidental to the use, so that the ‑ ‑ ‑

GORDON J:   Is it fair to say, then, that we are looking at – that the criticism made is a criticism of dividing the events up and only focusing on some events?

MR RUSKIN:   Yes, that is one of the criticisms – segmenting, if you like.  We put it at 40 of our submissions this way, where we looked at that very exercise, Justice Gordon.  So, we say, thus the nuanced and normative assessment of legal causation adopted in the cases we refer to, Fawcett, Green, et cetera, was diminished into a narrow search for some ordinary use where, somewhere in the sequence of events that could be identified as a “but for” course, as it were, got the plaintiff up.

So, it was a segmented consideration which forgave, or did not follow, the authority – the confining authority – that should be there because it left out the critical features by saying, as we have suggested, it does not gainsay the other things.  You know, this way you could ‑ ‑ ‑

GORDON J:   There is another question, though.  There is another issue, too, then, is there?  So, it is the segmentation.

MR RUSKIN:   Yes.

GORDON J:   It is the, as I understand it, the failure – not the failure – the focus on, in effect, the interruption between the non‑normal use and the then, what you would say is normal use – that is, the driving of the vehicle.

MR RUSKIN:   Yes.

GORDON J:   So, really, then, you are left with abandonment as your only distinguishing factor.

MR RUSKIN:   No.  Certainly, the drug use is distinguishing factor because that is critical – it makes her unconscious.  The leaving of the car – the abandonment and the leaving of the car, you have got to ask yourself, to abandon – and that does not seem to be contested – the respondent in the vehicle indefinitely so that the combination of drug and abandonment were the circumstances arising out of which came the injury.

The parking of the car of course was a factor, but it was a coincidental connection.  That is, it could have been anything.  There is nothing in the feature of the car incidental to its normal use that contributed to the accident or the circumstances, given the non‑normal factors.

EDELMAN J:   Why does the taking of the drug matter, in terms of your argument?  If, for example, exactly the same facts had occurred, but she had passed out and been abandoned in the car as a result of some natural cause, would not your argument be the same?

MR RUSKIN:   It would, but it is stronger this way, Justice Edelman, because the ‑ ‑ ‑

EDELMAN J:   We have to deal with this as a matter of principle and as a matter of principle I think your point seems to be that, as Justice Gordon put to you, it is really the fact that it is abandonment in a car when she is unconscious, rather than necessarily the use of the drugs.

MR RUSKIN:   Yes.  As a matter of principle, we would say that is, with respect, so.  But we say this case is stronger, as we have discussed, because when you have not just one non-incidental use but two, this case gives rise to the “but for” test in a very strong case of non-natural use.  That is the problem.  And what we would seek to do, if leave is given, is to explore with the Court that the confining nature of this test, which is so important, rather than the broadening of it, is going to be critical for lots of cases.

GORDON J:   Is there anything else, Mr Ruskin, you wish to say in relation to the application?

MR RUSKIN:   I am sorry, your Honour?

GORDON J:   Is there anything else you wish to add by way of oral submissions in support of your application?

MR RUSKIN:   No.  No, your Honour.  Those are the essential matters we wanted to bring to the Court’s attention.  Perhaps, just something about the passenger, there is – we have made the point about the anterior argument, but the anterior use is very different in Lamont, and so forth.

There is a reference in the judgment to fact that she might have been a passenger, from her point of view, forever.  Because, from her point of view, she never woke up and did not know she was not a passenger.  We want to say that is not a feasible, or sensible, or usual term for passenger.  But those are the matters we wish to put to the Court.

GORDON J:   Thank you, Mr Ruskin.  Ms Ryan.

MS RYAN:   Thank you, your Honours.  There is no matter of principle that arises.  We submit that the Court did not err.  What the Court did was simply to apply agreed facts to what were, and indeed, are agreed legal principles in accordance with authority.  The Court, clearly, when one reads paragraphs 45, 46, and 47, considered the matters raised by the applicant, namely, the use of heroin and the so-called abandonment, but the Court did not find those matters to be determinative in answering the relevant statutory question.

What the Court, of course, did consider, as is clear in 47, is the manner and location of the parking of the vehicle – namely, on a street in January, not in shade, with the windows up – that, effectively, created a heat box.  What the applicant has not averted to here is that some of the injuries were heat-induced injuries, namely, heatstroke and hyperthermia.

EDELMAN J:   In other words, Ms Ryan, I think your submission then is that it really just comes down to a question of the level of generality at which you characterise the facts.  So, as, in a case like Lamont and Hoffman, the facts are characterised as injuries to the cyclists arising from colliding with a parked car, not an injury with the cyclist arising from colliding with a parked car from how they were cycling, or manner in which they were cycling.

In the same way, here, the Court of Appeal has characterised the injury as an injury arising out of the parking of the car exposed to the elements without looking at all of the details of how she got into the car, or how long she was in the car, or what she had done in order to become unconscious.

MS RYAN:   Yes, and the court, in our submission, did consider the matters about which the applicant is now complaining that it did not or did not apportion enough weight.  What we say is, really, the applicant comes to this Court and asks the High Court to really accord all weight or, to the exclusion of all other considerations, the fact of the heroin and/or the abandonment.

We say that effectively would be subverting the “arising out of the use of” test which, of course, when one looks at the statutory revision, those words are used in contrast to caused by, it is clear, arising from the authority which is not challenged, that it is an expansive test.  And the purpose, of course, of section 94.1 is to provide an indemnity in respect of injuries arising out of the motor vehicle, not merely those injuries directly caused by the driving of it.  And we say that is what the Court has done here and there is no error raised.

GORDON J:   Anything else you wish to add, Ms Ryan?

MS RYAN:   No, your Honours.

GORDON J:   Thank you.  Mr Ruskin, anything in reply?

MR RUSKIN:   Yes, your Honour.  The “arising out of” point versus the causal point is not relevant here because all the cases, Fawcett, Green, Lamont, Dickinson, May are all in the context of an “arising out of” case.  That is to say, notwithstanding the words “arising out of”, there are confining – the confining test applies, so that is very important.

Of course, “arising out of” are bigger words, or wider words than “cause”, but they still have the confinement.  The point of principle here remains that, looking at this case, it became a “but for” case, it became a “but for” case that notwithstanding critical non‑use aspects, you can turn to parking and driving and that would mean that every case where there is a park, virtually every case where there is a parking and driving would attract the indemnity.  So, you could drive a victim, you could drive your victim of a drug bust and put them in the car and leave them in the car to die and that would be okay, because you have got driving and parking.

So, in a nutshell, the point of principle is:  what is the right test?  And we say by doing what they did the Court of Appeal broadened the test beyond legal causation, which needs to respect the purpose and scope of the indemnity in the way that all the other cases have done so.

Those are our submissions in reply, if the Court pleases.

GORDON J:   Thank you, Mr Ruskin.  The Court will adjourn to consider the course it will take.

AT 2.27 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.30 PM:

GORDON J:   The Court is of the view that the application does not identify a point of principle of general importance appropriate for the grant of special leave and that none of the applicant’s proposed grounds of appeal enjoy sufficient prospect of success to warrant the grant of special leave to appeal.  Special leave to appeal is refused, with costs.

Would you please adjourn the Court to 10.00 am on Tuesday, 6 June 2023.

AT 2.30 PM THE MATTER WAS CONCLUDED