…whether injury arose out of use of vehicle
On 7 January 2012, the applicant was found unconscious in the back seat of a vehicle.
The vehicle had been parked in a street in Brighton (Victoria), near the address of Mr Montague, the first respondent.
In the two days prior, the applicant had purchased heroin from the first respondent and had injected it in his company. Within minutes of the injection, the applicant fell unconscious, and the first respondent moved her onto the back seat of the vehicle.
The first respondent then drove to his residence and left the parked vehicle with its windows up. During the two days that the applicant lay unconscious in the vehicle, the outside air temperature exceeded 40 degrees.
The applicant alleged that she had suffered injuries as a result of being left in the vehicle, including cardiac arrest, bilateral pulmonary emboli, heatstroke, multiple organ failure, hypoxic brain injury, and paraplegia.
Decision
The appeal was allowed.
Ratio
In dismissing the applicant’s proceeding at first instance, the trial judge had focused on the fact that the applicant was sitting in the vehicle when she was injected with heroin. His Honour had described the vehicle as being used at that time as “a place or receptacle in which to inject [the applicant] with heroin”; and noted that such an activity “was not incidental to a normal use of the vehicle as a motor vehicle”.
At trial, it had been held that the agreed facts did not establish “if or when [the applicant’s] injuries were a cause of [her] unconscious and immobile state”. His Honour rejected the applicant’s submission that she continued to use the vehicle as a passenger until she was found on 7 January. Further, his Honour considered that the applicant did not remain in the vehicle on 6 and 7 January “as an incident of its use or a journey”.
The applicant’s primary case was that her injuries arose out of the first respondent’s use of the vehicle – in driving the vehicle to the place where he parked it in the open with its windows up, exposing the applicant to the excessive heat generated inside the vehicle, and leading to the applicant suffering heatstroke and other injuries she sustained.
The applicant contended that there was a non-coincidental nexus between the use of the vehicle and her injuries. She further submitted that, but for the first respondent driving the vehicle, parking it where he did and exposing her to the heat of this location, she would not have suffered injury. She also submitted that, but for her use of the vehicle as a passenger as described above, she would not have suffered injury.
The second respondent’s position was that the trial judge was to reject the applicant’s submission that she continued to use the vehicle as a passenger until she was found. Further, that the trial judge was correct when he distinguished Dickinson and May, and correct when he concluded that the applicant was in the vehicle “because she was abandoned there in an unconscious and immobile state”. This was unlike the injured children in Dickinson and May who were in their respective vehicles, either in the course of a temporarily interrupted journey, or in anticipation of a journey.
On appeal, the court held that whilst it might be said the injuries arose out of some ‘non-normal’ use of a motor vehicle, it does not mean that the same injuries cannot also be said to have arisen out of some other – and, in this case, later in time – use of the vehicle as a motor vehicle.
As was made plain in Dickinson, 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’.
Similarly, a conclusion that the applicant’s injuries arose out of her being abandoned in the vehicle, does not foreclose the question of whether they also arose out of some other use – for example, the first respondent’s use of the vehicle in driving it to its parking location in Brighton.
The Court of Appeal formed the view that the applicant’s injuries arose out of the first respondent’s use of the vehicle in driving it to – and parking it in – the Brighton location, resulting in the applicant being exposed to excessive heat within the vehicle and thereby causing injury to her.
It was considered that the temperature within the car was plainly a consequence of the physical features of the vehicle, and the driver’s decision to park it outside and exposed to the elements. Their Honours saw no relevant distinction between the cases in Lamont and Hoffman (involving instances in which cyclists collided with parked cars), and the appellant’s case.
Further, the court rejected the contention that the first respondent’s absence from the vehicle, for more than a short period of time, was an impediment to concluding that the applicant’s injuries arose out of the first respondent’s use of the vehicle.
The court noted it would also have concluded the applicant’s injuries arose out of her use of the vehicle, as a passenger, when it was driven to the Brighton parking location – irrespective of whether the applicant was using the vehicle as a passenger from that time until the time she suffered injury. It was considered that the journey had not ended for the applicant as she had remained a passenger in the vehicle.
This compensation law casenote appears courtesy of Travis Schultz & Partners (TSP), where the author, Jemma Barnard, is an Associate. As part of the firm’s commitment to providing ongoing legal education, TSP practitioners review relevant judgments and prepare case summaries for the legal profession. A free searchable catalogue of compensation law casenotes is available at schultzlaw.com.au/case-summaries (registration required). The full version of the judgments can be found at austlii.edu.au.
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