Left abandoned and unconscious in a vehicle – does an injury arise out of the use of a motor vehicle?

date
20 March 2023
category

A vehicle containing the unconscious and heroin-affected claimant was abandoned in Brighton by the Respondent. The claimant was found 2 days later in the vehicle suffering serious medical effects of the high temperatures in the vehicle.

The Court of Appeal in Victoria recently considered this issue in the case of RBK v Montague [2022] VSCA 183.

A vehicle containing the unconscious and heroin-affected claimant was abandoned in Brighton by the Respondent. The claimant was found 2 days later in the vehicle suffering serious medical effects of the high temperatures in the vehicle.

The Court of Appeal found that under s94(1)(a) of the Transport Accident Act 1986 the injuries to the claimant were caused by or arose out of the use of the motor vehicle. In particular, they found that the claimant’s injuries arose out of the driving, and parking, of the vehicle (with the claimant in the back seat) in Brighton where it would be exposed to the elements.

The Court found that:

'there must be a 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"'.

The application of a CTP policy has been accepted to be an ordinary question of fact to be proved by the party seeking the benefit of the policy. Whilst there is a significant amount of case law on this issue, these cases largely turn on their own facts.

In extending cover in this case, the decision appears to have widened the scope/application of the CTP Policy in Victoria to a new category of claimants.

The wording of the CTP Policy in each state in Australia is similar, each with a version of 'caused by or arising out of the use of' the insured motor vehicle being a requirement for cover.

However, some states have modified the scope of the cover. For example, South Australia’s CTP policy limits claims caused by or arising out of the use of a motor vehicle to those situations where the injury is a direct consequence of the driving of the vehicle, the vehicle running out of control or a collision involving a parked vehicle on a road.

Barry Nilsson’s CTP specialists in all states of Australia can assist with advice on questions of indemnity arising under the various local CTP Policies.

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