Bambach v Perrin and Taylor [2008] ACTSC 14 (22 February 2008)

Last Updated: 7 May 2008

GRAEME THOMAS BAMBACH v CHERIE PERRIN and

BENJAMIN JOHN TAYLOR

[2008] ACTSC 14 (22 February 2008)

EX TEMPORE JUDGMENT

TORT - negligence - assault following motor vehicle collision - whether injury caused by or arising out of use of motor vehicle

STATUTES - interpretation - Road Transport (General) Act 1999, s 196 - statutory presumption of agency - assault following motor vehicle collision - whether injury caused by or arising out of use of motor vehicle

Road Transport (General) Act 1999, ss 158, 196

Fawcett v BHP By-Products Pty Ltd [1960] HCA 59; (1960) 104 CLR 80

Government Insurance Office of New South Wales v RJ Green & Lloyd Pty Ltd [1966] HCA 6; (1965) 114 CLR 437

Dickinson v Motor Vehicle Insurance Trust [1987] HCA 49; (1987) 163 CLR 500

Rous v Government Insurance Office (NSW) [1994] HCA 50; [1994] Aust Torts Reports 61,527 (81-289)

Casalino v Insurance Australia Limited [2007] ACTSC 25

Brewer v Incorporated Nominal Defendant (1980) VR 469

Cunningham v Motor Accidents Board (1985) VR 795

No. SC 575 of 2007

Judge: Master Harper

Supreme Court of the ACT

Date: 22 February 2008

IN THE SUPREME COURT OF THE )

) No. SC 575 of 2007

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: GRAEME THOMAS BAMBACH

Plaintiff

AND: CHERIE PERRIN

First Defendant

AND: BENJAMIN JOHN TAYLOR

Second Defendant

ORDER

Judge: Master Harper

Date: 22 February 2008

Place: Canberra

THE COURT ORDERS THAT:

1. Paragraph 6 of the statement of claim be struck out.

2. Judgment be entered in favour of the first defendant.

3. The plaintiff pay the first defendant's costs of the application and of the action.

1. In this action the plaintiff claims damages for personal injury against two defendants arising out of an incident on 25 August 2004. It is asserted in the statement of claim that the first defendant was the registered owner of a Holden Barina sedan and that the second defendant was driving that vehicle on William Slim Drive, Giralang when it was involved in a collision with a car driven by the plaintiff.

2. The statement of claim then asserts that following the collision the second defendant, that is, the driver of the Barina, approached the plaintiff and wrongfully assaulted him by striking him with a steering lock causing injuries, principally a fracture to the left forearm. The plaintiff contends that the first defendant, that is, the registered owner of the Barina, is liable for the conduct of the second defendant in wrongfully assaulting the plaintiff because of the provisions of s 196 of the Road Transport (General) Act 1999.

3. That section, which has been in substance a feature of motor vehicle third party insurance legislation for more than half a century, applies if someone other than the registered owner is driving a motor vehicle at the time of a motor accident, whether or not that person was driving with the owner's authority. The section provides that the driver is taken to be the owner's agent acting within the scope of the driver's authority for an action or other proceeding against the owner, whether jointly or separately with the driver, arising out of the accident, for damages in relation to the death of or bodily injury to a person caused by or arising out of the use of the vehicle.

4. The first defendant, having filed a notice of intention to respond jointly with the second defendant, applies to the Court for summary judgment or alternatively for an order that the paragraph of the statement of claim asserting liability by reason of the statutory presumption of agency be struck out. The question to be determined by the Court requires an exercise in interpretation of s 196 of the Road Transport (General) Act.

5. That section needs to be read in conjunction with s 158 of the Act which contains definitions for the purpose of Pt 10 of the Act, the part of the Act which relates to compulsory motor vehicle insurance. That Act defines "motor accident" as:

An accident or other incident in which the death of, or bodily injury to, a person is caused by, or arises out of the use of, a motor vehicle.

6. Effectively this means that if the injury to the plaintiff is found to have been caused by or to have arisen out of the use of the motor vehicle, the statutory presumption of agency will apply so that regardless of any evidence about actual agency or authority, the registered owner will be deemed to be liable for any tortious liability on the part of the second defendant.

7. The expression "caused by or arising out of the use of a motor vehicle" has been the subject of consideration by many courts, including the High Court of Australia, on many occasions over the years: see for example Fawcett v BHP By-Products Pty Ltd [1960] HCA 59; (1960) 104 CLR 80; Government Insurance Office of New South Wales v RJ Green & Lloyd Pty Ltd [1966] HCA 6; (1965) 114 CLR 437; Dickinson v Motor Vehicle Insurance Trust [1987] HCA 49; (1987) 163 CLR 500; Rous v Government Insurance Office (NSW) [1994] HCA 50; [1994] Aust Torts Reports 61,527 (81-289); Casalino v Insurance Australia Limited [2007] ACTSC 25. The decisions have narrowed the area for argument but have nevertheless left applicable what was said by Crocket J in Brewer v Incorporated Nominal Defendant in the Full Court of the Supreme Court of Victoria (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 upon 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".

8. This is such a borderline case. The decision to which I have been referred which is closest on its facts to the present case is a decision of Starke J of the Supreme Court of Victoria in Cunningham v Motor Accidents Board (1985) VR 795 in which there had been 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. This culminated in a scuffle outside the vehicles in which one driver stabbed the other with a knife. Starke J in that case held that the injury did not arise out of the use of a motor vehicle and that the use of the motor vehicle was a mere casual concomitant to the injury caused by the stabbing.

9. Whilst I am not bound by Starke J's decision in that case, it seems to me to be on all fours with the facts of the present case. In these circumstances the alleged injuries to the plaintiff, if they occurred in the way alleged in the statement of claim, that is, by an assault away from the motor vehicles with a steering lock, cannot be said to have arisen out of the use of the motor vehicle which had been driven by the second defendant at the time of the collision which preceded the assault.

10. The statutory presumption of agency which arises under s 196 of the Road Transport (General) Act is hence not applicable. Counsel for the plaintiff has conceded that the only agency asserted against the first defendant is that presumed agency and that there is no assertion of agency on general principles under the common law. In those circumstances, I am satisfied that the case as pleaded against the first defendant in the statement of claim cannot succeed.

11. The first order I make is that paragraph 6 of the statement of claim be struck out. The second order is that judgment be entered in favour of the first defendant.

12. The plaintiff is to pay the first defendant's costs of the application and of the action.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.

Associate:

Date: 22 February 2008

Counsel for the plaintiff: Mr RF Livingston

Solicitor for the plaintiff: Hansteins Lawyers

Counsel for the first & second defendants: Mr CM Erskine

Solicitor for the defendant: Moray & Agnew

Date of hearing: 22 February 2008

Date of judgment: 22 February 2008