Generally, to be entitled to TAC compensation following a motor vehicle accident, an injury needs to be sustained due to the driving of the vehicle. However, there are some circumstances where TAC benefits such as lump sum compensation, or common law damages are payable even if the vehicle was not being driven at the time you sustain your injury. This article will examine these claims, where an injury arises "out of the use of a motor vehicle", and look at a recent Supreme Court of Appeal decision in Victoria, that tackled this issue.

HOW IS A CLAIM FOR AN INJURY ARISING OUT OF THE USE OF A MOTOR VEHICLE DIFFERENT TO AN ORDINARY TAC CLAIM?

To make a TAC claim, you generally need to show that your injury was directly caused by the driving of a motor vehicle. Usually this is quite clear as the vehicle is in motion at the time the injury occurs.

Claims for an injury that arises out of the use of a motor vehicle differ in that they do not involve the driving of the vehicle - usually the vehicle is stationary.

DO MY ENTITLEMENTS DIFFER FOR INJURIES ARISING OUT OF THE USE OF A MOTOR VEHICLE?

Yes.

As an injury sustained in this way does not involve the driving of the vehicle, you cannot make an ordinary TAC claim for no fault benefits such as:

However, you may be entitled to bring a claim for common law damages for a lump sum that would compensate you for these types of losses. You would need to first establish that someone negligently caused your injuries.

You can read more about TAC common law claims in our article, "$520,000 compensation after motor vehicle accident; TAC benefits and common law claim".

CASE REVIEW: RBK V MONTAGUE & ANOR [2022] VSCA 183

The Supreme Court of Appeal recently handed down a judgment in a claim that involved the use of a motor vehicle.

The Plaintiff in this case was a 19 year old female who was in the driver's seat of her own car when she injected heroin and suffered an overdose. The car was stationary at the time. The first defendant, Mr Montague, was the supplier of the heroin and was in the car with the plaintiff and her friend (Mr Montague's daughter) at the time she injected the heroin.

Mr Montague and his daughter moved the unconscious plaintiff to the rear passenger seat of the vehicle. They then left the plaintiff in the vehicle while they went to the Casino.

They later returned to the vehicle and Mr Montague drove the vehicle to Brighton. Mr Montague and his daughter then left the car with the plaintiff still unconscious in the backseat. She was found in that same state by her parents about two or three days later. By this time, she had suffered heat stroke, hyperthermia, cardiac arrest, multiple organ failure, bilateral pulmonary emboli, severe motor neuropathy and paraplegia.

Of relevance, these events occurred in early January 2012 in Melbourne. It was accepted that at times the temperature inside the car exceeded 40 degrees Celsius. It was also accepted that the combination of heat stroke and immobility whilst having been left in the parked car were a cause of the plaintiff's injuries.

The main issue in this case was whether the plaintiff's injuries arose because of her use of the vehicle. If so, the TAC would need to indemnify Mr Montague for his negligence towards the plaintiff, through a common law damages claim by the injured woman.

The TAC argued that the fact the plaintiff was in the car was merely incidental and that she was no longer "using" the vehicle, but rather had been abandoned in it. The plaintiff argued that she was a passenger in the vehicle when Mr Montague drove the vehicle from South Melbourne to Brighton and she remained a passenger in the vehicle until she was found and rescued from it. She argued that her use of the vehicle as a passenger was a cause of her injuries.

The Court of Appeal accepted the plaintiff's argument and found that her injuries arose 'out of her use of the car'.

WHAT DOES THIS DECISION MEAN?

This decision means that the TAC will have to pay for any compensation awarded to the plaintiff for her injuries.

Had the Court found that the injuries did not arise from the use of the vehicle, even if it is ultimately found that Mr Montague was negligent for her injuries, the plaintiff would most likely have not received any compensation as it is unlikely that Mr Montague would have had the capacity to pay her.

With this decision, however, the TAC will now act as the insurer and be responsible for payment of any compensation awarded against Mr Montague.

The Court is yet to determine the amount of damages (lump sum compensation) that should be awarded to the plaintiff for her injuries.

GET HELP

At Polaris, we are experts in TAC cases. We've successfully represented many clients in relation to their transport accident claims.

For advice or assistance with any aspect of your TAC claim, please get in touch directly with Polaris Lawyers. It doesn't cost you anything to find out if you have a claim.