News and Insights

We are all too aware of the devastating injuries we can suffer in a car accident. We also expect that the TAC will step in and compensate or indemnify us in these cases. But what if the injuries weren’t sustained in an accident directly caused by driving? What if there is only an incidental connection between the injuries and the driving?

If you are the owner or driver of the vehicle, s 94(1)(a) of the Transport Accident Act 1986 states that the TAC will indemnify the owner or driver for liability caused by or arising out of the use of a motor vehicle in Victoria (or another State or Territory). Note that the vehicle is not required to be in motion; the injuries must be a consequence of its use, and the “use” must somehow be incidental to the normal use of that vehicle. Some examples where this might apply include loading and unloading a vehicle or being struck or injured by some part of a vehicle.

Case in point

The facts of the below case are tragic, but they provide an insight into how broadly the legislation operates.

In RBK v Montague and the TAC [2021], RBK sought a declaration that the TAC was liable to indemnify Mr Montague, the driver of the vehicle in which she suffered injury. At the time she was injured, RBK was a 19-year-old woman. On 5 January 2012, she met up with a friend and her friend’s father (Mr Montague). Whilst in the passenger seat of her car, she was injected with heroin, shortly after which she became unconscious. She was then moved to the car’s back seat and driven to Southbank whilst the other two attended the casino. When they returned to the vehicle sometime in the early hours of 6 January, RBK was still unconscious. They then drove to Brighton and parked in the street, leaving RBK in the car. She was left unconscious and immobile for two days until, tragically, her parents discovered her at about 11 pm on 7 January 2012. Temperatures in the car had ranged up to 40 degrees Celsius. RBK suffered severe injuries.

She sued Montague and the TAC. RBK said her injuries arose out of the use of the vehicle, firstly because she was a passenger – she was unable to exit the car herself and she was not removed from it. She said it was like a child having been left in a vehicle asleep or restrained whilst parked. Secondly, she said that her injuries arose out of the use of the vehicle when it was driven on 5 and 6 January, 2012.

The TAC denied it was liable to indemnify her, finding that her injuries were not ’caused by’ or arising out of the use of the vehicle. The Court said that she was not using the car as a passenger. Her injuries were unconnected with any journey. Instead, the vehicle was used as a place or receptacle in which to inject the heroin, and that use was “utterly foreign to its character as a motor vehicle”.

Appeal

RBK successfully appealed the decision in the Victorian Court of Appeal, in which the Full Court said that the temperature in 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 found that RBK’s injuries arose from her injuries as a passenger. Although parked, RBK had continued to use the vehicle as a passenger at the time of her injury.

On 19 May 2023, the TAC sought leave to appeal the decision in the High Court. The application was denied, the Court reaching the view that RBK was relevantly a passenger at the time of her injuries. It did not matter how she came to be a passenger or unconscious nor how long she had been in the car.

It may be that the TAC will look to amending the legislation in the wake of this decision.

See below links to the judgments.

RBK v Montague & Anor [2021] VSC 336 (10 June 2021) (austlii.edu.au)

RBK v Montague [2022] VSCA 183 (31 August 2022) (austlii.edu.au)