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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Transport Accident Commission v RBK (a Pseudonym) & Anor

Details

AGLC: Transport Accident Commission v RBK (a Pseudonym) & Anor [2023] HCATrans 70
Case: [2023] HCATrans 70
Decision Date

CaseChat Overview and Summary

The applicant, the Transport Accident Commission (TAC), sought special leave to appeal to the High Court of Australia from a decision of the Court of Appeal. The dispute concerned the interpretation of the indemnity provision in section 94(1) of the *Transport Accident Act*, specifically whether the first respondent's injury arose out of the use of a motor vehicle. The TAC argued that the Court of Appeal erred in finding that the injury did arise out of the use of the vehicle in the circumstances of the case.

The central legal issue before the High Court was whether the Court of Appeal had correctly applied established legal principles, derived from cases such as *Fawcett*, *Green*, and *Dickinson*, to the facts of the case. The applicant contended that the Court of Appeal had failed to properly consider the non-normal uses of the vehicle, namely the injection of heroin and the subsequent abandonment of the unconscious respondent, in its determination of whether the injury "arose out of" the use of the motor vehicle. The applicant argued that these critical factors were effectively bypassed by the Court of Appeal's focus on the mere parking of the vehicle, thereby broadening the scope of the indemnity beyond its intended confines.

The High Court considered the applicant's submissions that the Court of Appeal had segmented the events, focusing on the parking of the vehicle while downplaying or ignoring the critical non-normal uses that led to the respondent's unconsciousness and abandonment. The applicant argued that this approach created a "but for" test that was too broad and did not adequately respect the confining nature of the "arising out of" test as established in previous High Court authorities. The respondent, conversely, submitted that the Court of Appeal had correctly applied the agreed legal principles to the agreed facts, characterising the injury as arising from the parking of the vehicle in a manner that created a heat box, leading to heat-induced injuries, and that this characterisation was appropriate and did not subvert the expansive nature of the "arising out of" test.

Ultimately, the High Court determined that the application did not identify a point of principle of general importance suitable for the grant of special leave, nor did the proposed grounds of appeal possess sufficient prospects of success. Accordingly, special leave to appeal was refused, with costs awarded to the respondent.

Orders