Australia: An Assault On Compulsory Third Party Insurance

Bambach v Cherie Perin & Benjamin John Taylor [2008] ACTSC 14

In this interlocutory application, the Master of the ACT Supreme Court determined that an assault inflicted by the second defendant following a motor vehicle collision was not an injury of the type that would trigger indemnity from the compulsory third party insurer.

Facts

The defendant's vehicle and the plaintiff's vehicle came into contact when they proceeded through a roundabout at the same time. The parties pulled to the side of the road after the collision when, it was alleged, the second defendant approached the plaintiff holding a steering wheel lock. The second defendant verbally abused and spat at the plaintiff, and swung the wheel lock at the plaintiff's head. The plaintiff raised his arm to protect his head, receiving a blow on the arm, causing it to break. The first defendant then picked up a stick and threw it at the plaintiff's leg. Notably, the plaintiff had received no injuries from the motor vehicle collision preceding the assault.

The solicitors for the plaintiff filed a claim for damages for wrongful assault on the plaintiff. The basis for the plaintiff's cause of action, pleaded in paragraph 6 of the statement of claim was that:

"The first defendant is liable for the conduct of the second defendant in wrongfully assaulting the plaintiff, in accordance with the provisions of section 196 of the Road Transport (General) Act 1999."

Moray and Agnew, acting for NRMA, the compulsory third party insurer of both defendants, denied liability on the basis that the compulsory third party policy did not respond to the claim.

The Interlocutory Application

An application in proceedings was filed on behalf of NRMA in the ACT Supreme Court. Master Harper heard the application that sought to strike out paragraph 6 of the statement of claim to the extent that it pleaded an action pursuant to the Road Transport (General) Act 1999 ('the Act').

Counsel for the plaintiff submitted that the first defendant, as a registered owner of the vehicle, was liable for the conduct of the second defendant in wrongfully assaulting the plaintiff because of the principle of agency provided in s196 of the Act.

Counsel for the plaintiff submitted that the plaintiff's injuries arose out of the use of the vehicle, pursuant to s158 of the Act. He contended that the preceding incident of the motor vehicle collision was instrumental to the happening of the assault on the plaintiff. If these provisions applied to this case, it would follow that the agency principle was invoked and the second defendant would be taken to be the owner's agent acting within the scope of his or her authority.

Counsel for the defendants that there was no use of the car itself being used to inflict the damage in any way, either as a setting for it, or as the chariot from which the assailant used his weapon. The car in the present case was truly incidental to the assault occurring, the only connection to the injuries inflicted on the plaintiff was that it was the precipitator of a "road rage" incident.

Counsel for the defendant further submitted that there was a significant intervening event that disrupted the causal link between the use of the motor vehicle and the infliction of the damage. The assailant alighted from his car and picked up the wheel lock, and then assaulted the plaintiff.

To decide the application, Master Harper stated the question to be determined by the Court required an exercise in interpretation of s196 of the Act. Being read in conjunction with s158, the registered owner would be deemed to be liable for any tortious liability on the part of the second defendant.

His Honour discussed the expression "caused by or arising out of the use of a motor vehicle", stating the expression had been the subject for consideration by many courts, including the High Court over the years, but nevertheless left applicable that said by Crockett J in Brewer v Incorporated Nominal Defendant, (1980 VR 469):

"The authorities reveal that no satisfactory intellectual test can be devised to determine in every case whether a particular bodily injury is or is not caused by or arises out of the use of a motor vehicle. Each case must depend on its own facts. There will be difficult and borderline cases, but whilst not giving the Section a narrow operation, one should apply 'broad and practical considerations'".

His Honour stated that this was a borderline case and referred to a decision of Starke J in the Supreme Court of Victoria of Cunningham v Motor Accidents Board. In that case, an altercation between the drivers of two vehicles over the failure of the driver of one vehicle to move off promptly when a traffic light changed to green, culminated in a scuffle outside the vehicles in which one driver stabbed the other with a knife.

Starke J held the injury did not arise out of the use of a motor vehicle and his motor vehicle was a mere causal concomitant to the injury caused by the stabbing.

In the case before him, Master Harper held that the alleged injuries to the plaintiff, occurring by an assault, away from the motor vehicle with a steering lock, could not be said to have arisen out of the use of a motor vehicle which had been driven by the second defendant at the time of the collision preceding the assault. The nexus between the injuries sustained and the motor vehicle was too tenuous.

The case pleaded against the defendants in the Statement of Claim could not succeed, and the relevant paragraph was struck out.

Discussion

Whilst the legislative intent for CTP insurance policies was to create broad schemes to protect victims of motor vehicle accidents, it could not be easily stated that the intention was to include victims of crimes that may be committed in a motor vehicle or from a motor vehicle. This case creates a precedent in respect of these "road rage incidents" in the ACT, and provides a further example of the courts narrowly construing the scope of the phrase "caused by or arising out of the use of a motor vehicle".