Judgment date: 15 April 2011
Nominal Defendant v Hawkins  NSWCA 93
NSW Court of Appeal1
- The circumstances of an accident may be such that an inference can be drawn that the driver was aware that a passenger would intentionally throw an object out of a motor vehicle and thereby injure a third party.
- Where the manner of driving of a vehicle is such as to intimidate or harass a third party, and the third party sustains injury, the manner of driving establishes fault in the use of, or operation of, the vehicle, as defined by s 3(1) of the Motor Accidents Compensation Act (MACA).
- The act of driving a motor vehicle so as to allow a passenger to throw an object out of a window and hit a third party, can be considered concurrent and independent causes of the third party's injury, and may also fall within the definition of s 3(1) of the MACA.
The plaintiff was riding his bicycle at about 1.00 am on 20 January 2006 on a pedestrian footpath, when he was struck by an object thrown from an unidentified vehicle. The impact of the object caused him to lose control of his bicycle, run over a piece of metal which was lying across the footpath, and ultimately strike a telegraph pole.
Armitage DCJ accepted that immediately prior to the accident, the driver of the motor vehicle had engaged in harassing and intimidating conduct, ultimately causing the plaintiff to venture off the road he was travelling on and onto the pedestrian crossing. His Honour further found that:
"the driver of the vehicle drove in such proximity to Mr Hawkins and/or at such speed so as to permit or facilitate an occupier of the vehicle to throw an object, [and] in the circumstance it was likely (foreseeably likely to the driver)[that it would] injure Mr Hawkins".
His Honour held that the plaintiff's injury was caused by the fault of the driver, as defined by s 3(1) of the MACA, and that it was the result of and caused during the driving of the motor vehicle.
Court of Appeal
The defendant raised 12 grounds for appeal, which essentially fall into the following 2 categories:
1. The primary judge erred in finding an inference on the balance of probabilities that:
- The throwing of an object at the Plaintiff was a premeditated act;
- The driver was aware of the passenger's intention to do so;
- The driver facilitated the premeditated act; and
- It was foreseeable by the driver that a passenger would throw an object from the vehicle.
2. Even if fault of the driver was established, his Honour erred in finding that an injury occurred within the meaning of s 3(1) of the MACA.
Inference grounds of appeal
As to the "inference" grounds, the defendant sought to distinguish between the "rowdy behaviour" of which the driver was aware, and the criminal act of the passenger in throwing the object.
The court held that it was open to the trial judge to infer from the circumstances of the defendant's harassing and intimidating driving, that he knew what the passenger was going to do. Hodgson JA held, at paragraph 19:
"In my opinion it was clearly open to infer that the driver drove as he did to harass and/or intimidate Mr Hawkins through the proximity of the car, the beeping of the horn and the yelling at the occupant. In circumstances where the driver drove the car closely alongside Mr Hawkins, adjusted its speed so as to approximate his and, immediately after the object was thrown, accelerate away, moving out of the lane next to the kerb. In these circumstances, it was in my opinion an available inference that the driver drove in that way in order to facilitate something being thrown at Mr Hawkins, this being an act that the driver was aware was intentionally committed by a passenger."
An "injury" within the meaning of the MACA
The defendant also failed in its submission that the injury did not occur as a result of the fault of the driver of the unidentified vehicle.
Section 3 of the Motor Accidents Compensation Act 1999 (as it then was) defined "injury" as:
"(a) personal or bodily injury caused by the fault of the owner of driver of the motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during:
(i) the driving of the vehicle, or
The court held that there was fault in the driving of the vehicle, in that the driver put the passenger in a position to throw the object. Further, the throwing of the object was part of, and incidental to, the harassing driving. Hodgson JA held:
"In those circumstances, I think it can be said that Mr Hawkins' injury was caused by the driver's fault in the use or operation of the vehicle, and was a result of the driving of the vehicle, within the definition of 'injury' in the MAC Act."
Importantly, in coming to this view, Hodgson JA referred to a number of previous decisions, which considered whether the driver (and the driving) was the "immediate or proximate cause of the injury".2
His Honour held that whilst there can be more than one cause which can be dominant, immediate or proximate to satisfy the causation requirement in the definition of "injury", the driving of the vehicle must have a "very substantial causative role", such that the character of the driving must relate to the actual accident or incident, rather than just facilitate a dangerous or criminal act by a passenger. In the instant case, however, given the defendant knew the passenger was going to throw the object, the act was not only contemporaneous with, but part of and incidental to, the harassing manner in which the vehicle was being driven.3
This decision establishes that an act which is incidental to the driving of a motor vehicle, particularly where that driving is intimidatory or harassing to a person, may fall within the definition contained in s 3 of the MACA.
However, an act which is properly considered to be distinct from or independent of such driving may fall outside that definition. Such examples of this could include drive-by shootings, and objects thrown from cars, where the driver has not undertaken harassing or intimidating driving, or had any knowledge a passenger was going to throw an object.
1 Beasley JA; Hodgson JA and Sackville AJA
2 Allianz Australia Insurance Limited v GSF Australia Pty Limited  HCA 26; Ross v Transport Accident Commission  VSC 112; Mani v Nominal Defendant  QSC 152; and Coley v Nominal Defendant  QCA 181
3 Sackville AJA also said that the definition of "injury" would have been satisfied in any event, as the actions of the driver and passenger were concurrent and independent causes of the plaintiff being struck by the object thrown from the vehicle.
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