Australia: An Assault On Compulsory Third Party Insurance

Last Updated: 14 October 2008
Article by Prue Flinn

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.


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.


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".

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.