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CTP insurance responds to an injury compensation claim arising out of someone else’s negligence if the injury results from – among other things – the “driving” of the insured vehicle.
How far does the policy extend where the negligence alleged is the driver having parked or stopped the insured vehicle at a place that exposes others to danger?
In January 2012 Ronnie Kravits (not her real name) was found unconscious by her parents in the back of a car at Brighton in Melbourne.The 19-yr-old had passed out two days earlier after injecting herself with heroin in the company of her friend Jessica and one Leonard Montague who had supplied the drug.
After moving her to the backseat of the car, Montague drove to the Crown Casino where he parked while he and Jessica went inside to play the tables.
They returned from the casino to the locked vehicle a few hours later to find Ronnie still unconscious on the backseat.
Montague then drove to Brighton and parked in a street near his home. He left the car – with its windows up – without returning. Ronnie was still in the back.
Over the two days that the applicant lay unconscious in the vehicle, the outside air temperature reached 31 degrees with that inside topping 40.
When discovered at 11:00 pm her body temperature was recorded by ambulance officers at 41 degrees.
Her injuries included heatstroke, hyperthermia, cardiac arrest, multiple organ failure, bilateral pulmonary emboli, severe motor neuropathy and paraplegia.
Ronnie filed a lawsuit in December 2019 against the driver, Montague.
Her claim was dismissed in June 2021 on the basis that vehicle’s use as a place in which to inject drugs was “utterly foreign to its character as a motor vehicle” and not incidental to its normal use.
Further, she had remained in the vehicle from having been rendered unconscious and immobile by the injection of heroin, “not as an incident of being transported from Southbank to Brighton”.
Ronnie appealed.
She contended the trial judge had erred by failing to properly consider the causal relationship between her injuries and the location in which the car was parked and the external conditions there.
Cover for passenger injuries extended beyond – she argued – those directly caused by “driving” to those where the causal connection between any aspect of driving of a vehicle and the injuries was established.
Appeal judges David Beach, Richard Niall and Cameron Macaulay agreed.
They observed that the vehicle’s use as a place for ingesting drugs was irrelevant in that in that such activity long preceded the actions of the driver that relevantly contributed to Ronnie’s heatstroke injuries.
“The fact that there was no collision was no bar to a conclusion, that the applicant’s injuries arose out of the use of the vehicle,” they ruled in a joint judgment. “The manner and place in which he parked the vehicle caused its internal temperature to rise to a level which was unsafe”.
“The temperature within the car was plainly a consequence of the physical features of the vehicle and the driver’s decision to park it outside and exposed to the elements”.
Damages are yet to be assessed in a separate hearing but given the extent of the heatstroke injuries, it would be surprising if they were not to exceed $2 million.
Section 5 of the Motor Accident Insurance Act in Queensland requires the injury – to be compensable – to have occurred “as a result of the driving of the motor vehicle”.
It is therefore unclear whether the Victorian decision would have application in Queensland either to claims by the injured person or for example parents as a result of ‘nervous shock’ following a child tragedy.
Because though there is no temporal requirement – the section referring only to “the driving of the motor vehicle” not requiring that the injury occurred while a motor vehicle is being driven – it is arguable that a Queensland CTP policy would respond to such an injury if it were to occur here.
RBK v Montague [2022] VSCA 183 Beach, Niall and Macaulay JJA, 31 August 2022
Categories: car accident