The ‘use’ of a vehicle isn’t confined to circumstances where the vehicle is being driven

07 October 2022

The Victorian Court of Appeal found that the Transport Accident Commission was required to indemnify the driver of a motor vehicle who abandoned an unconscious woman affected by heroin in the back seat of a locked motor vehicle. The woman suffered injuries as a result of being exposed to high internal vehicle temperatures for 2 days.

In issue

  • The Court of Appeal considered whether the Transport Accident Commission (TAC) was required to indemnify the driver of a vehicle who provided a woman heroin and then abandoned the vehicle on a suburban street, leaving the unconscious woman in the back seat. The woman was exposed to high internal vehicle temperatures which caused her to suffer significant personal injuries.

The background

In January 2012 the then 19-year-old Applicant was provided heroin by the First Respondent, which left her unconscious in the back seat of a motor vehicle. The First Respondent then drove the unconscious Applicant from Southbank to Brighton where he parked and abandoned the vehicle, leaving the unconscious Applicant in the back seat of the locked vehicle. The Applicant was discovered, unconscious, 2 days later.

The Applicant alleged the First Respondent negligently left her unconscious, immobile and abandoned, and as a result of being exposed to high temperatures for two days before being discovered, she suffered injuries, including cardiac arrest, bilateral pulmonary emboli, heatstroke, multiple organ failure, hypoxic brain injury, and paraplegia.

The decision at trial

Summary judgement was entered against the First Respondent in default of an appearance.

The Applicant sought an order that the TAC indemnify the First Respondent under 94(1)(a) of the Transport Accident Act 1986 VIC (the Act):

(1) The [TAC] 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; ...

The TAC denied it was liable to indemnify the First Respondent.

The Supreme Court dismissed the Applicant’s claim on the basis the Applicant failed to establish her injuries were ‘caused by or arising out of the use of’ the vehicle within the meaning of s 94(1)(a) of the Act, and the First Respondent was not a ‘driver’ for the purposes of ss 3 and 94(1)(a) of the Act.

The issues on appeal

The Applicant appealed the decision on the basis that the judge erred in failing to conclude that her injuries were caused by or arose out of the use of the vehicle.

The Supreme Court of Appeal considered ‘Is the TAC liable to indemnify the First Defendant pursuant to section 94(1)(a) of the Act?’

The decision on appeal

Following review of the relevant case law, the Court of Appeal distilled the relevant principle to be 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"'.

Applying the above principle, the Court of Appeal concluded that the Applicant’s injuries did in fact arise out of the First Respondent’s use of the vehicle, namely his driving of the vehicle, and considered her inability to exit the vehicle due to being unconscious meant her journey did not end when the vehicle was parked by the First Respondent in Brighton.

The Supreme Court of Appeal answered ‘yes’ to the appeal question, requiring the TAC to indemnify the First Respondent for the injuries suffered by the Applicant.

Implications for you

The decision confirm the Courts' inclination to give a broad meaning to the terms 'arising out of' in the context of the Act.

RBK v Montague & TAC [2022] VSCA 183

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