RBK v Montague & TAC [2022] VSCA 183

At 19 years of age, our client suffered catastrophic injuries after being injected with heroin and abandoned whilst unconscious in a vehicle by its driver (Montague). Two days later, on 7 January 2012, our client was found by her parents, still unconscious in the back seat of the vehicle where the internal temperature had at times reached 40 degrees Celsius. The vehicle had been left parked on a suburban street in an unshaded location, with its windows up. Our client was found to have suffered heatstroke, hyperthermia, cardiac arrest, multiple organ failure, bilateral pulmonary emboli, severe motor neuropathy and paraplegia.

Redlich’s issued Supreme Court proceedings against Montague and also the Transport Accident Commission (TAC). Montague did not enter an appearance and we obtained summary judgment against him. Montague had also previously been charged and convicted of reckless conduct endangering life and sentenced in the County Court of Victoria. 

The TAC defended our claim on grounds that it was not required to indemnify Montague pursuant to s.94(1)(a) of the Transport Accident Act 1986 (the Act). That section of the Act relevantly states that the TAC is liable to indemnify the owner or driver of a registered motor vehicle for an injury “arising out of the use of the motor vehicle”.

The Supreme Court at first instance found that our client’s injuries did not arise out of the use of a motor vehicle, stating that there was only a coincidental involvement of a vehicle and that it was merely used as a place to inject heroin. The trial judge stated that the activity of injecting heroin is ‘utterly foreign’ to the normal use of a motor vehicle and found that there was no causal connection between the driving of the vehicle and our client’s injuries. As a result, the trial judge found that the TAC was not liable to indemnify the driver of the vehicle.

We appealed the trial judge’s decision to the Court of Appeal of the Supreme Court of Victoria. 

In our submissions to the Court of Appeal, we argued that:

• the environment inside the car, coupled with the location in which it was parked, caused our client’s injuries, which were in turn caused by her use of the vehicle as a passenger
• Montague’s past use of the vehicle, including its abandonment in an exposed location, was causally linked to the temperature inside the car which caused our client’s injuries.

This week, the Court of Appeal handed down a decision in our client’s favour and opined that the TAC is liable to indemnify Montague as the driver of the vehicle in respect of our client’s claim for damages.

In reaching their decision, The Honourable Justices Beach, Niall and Macaulay acknowledged that whilst there is a requirement to show a causal or consequential relationship between the use of a vehicle and the injury, there need not be a single, predominant or main cause of injury. 

In this particular case, The Honourable Justices found that our client’s injuries arose out of Montague’s use of the vehicle in driving it to and parking it in the location where it was found, resulting in our client being exposed to excessive heat and causing her injuries. 

The Court of Appeal found that the fact that our client did not suffer injury in the immediate aftermath of the car being parked did not detract from the non-coincidental nexus between the parking of the vehicle and her eventual injuries. In this sense, our client’s case was viewed as being similar to the settled case law involving cyclists who collide with parked cars.

The Court of Appeal also drew similarities between our case and other court authorities involving children being left in cars. It found that in the case of our client, her journey as a passenger had not ended. She remained unconscious in the back seat of the vehicle from the time it was parked, and remained susceptible to the conditions therein.

Although not required to do so, The Honourable Justices also found that our client, whilst unconscious, was continuing to use the vehicle as a passenger at the time of her injury. For that reason, we were successful in arguing our propositions before the Court of Appeal.

It was concluded that our client’s injuries arose out of the use of a motor vehicle and that the TAC is liable to indemnify Montague in respect of our client’s claim for personal injury damages.