Hornby v Opbroek[2015] QDC 101

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   In this proceeding, the plaintiff seeks, pursuant to r 483 of the Uniform Civil Procedure Rules 1999 (“UCPR”), a declaration that the Motor Accident Insurance Act 1994 (“MAIA”) applies to this proceeding and that this question be determined separately from other questions in the proceeding, and before trial.

2. [2]
   Because all parties agreed to the tendering, as Exhibit 1, of a Statement of Agreed Facts, I decided that I would make an order for a decision by this Court of a question separately from any other question before the trial of the proceeding: see r 483(1) of the UCPR. Necessarily, since all parties agreed that there would be no further evidence necessary before the decision on that question was made, I determined that I would then proceed to so decide the question.

Background

3. [3]
   The proceeding arises out of an incident whereby the plaintiff suffered personal injuries (the details of which are set out in paragraph 6 of Exhibit 1). Those injuries resulted from broken glass striking the plaintiff’s face and upper body. The reason for the broken glass was that the first defendant threw a beer bottle at the motor vehicle in which the plaintiff was a passenger (described in Exhibit 1 as “the Holden”). That bottle smashed against the Holden’s rear door frame.

4. [4]
   The legal arguments in this case centred around the circumstances in which the first defendant threw that beer bottle. The first defendant was the driver of a motor vehicle (described in Exhibit 1 as “the Mazda”). At the relevant material time the Holden in which the plaintiff was a passenger was proceeding in the opposite direction to the Mazda and, as the vehicles passed one another, it was then that the first defendant threw that beer bottle.

5. [5]
   Two further material facts were relied upon by the plaintiff from Exhibit 1. The first was that the first defendant threw that beer bottle at the Holden with one hand whilst holding onto the steering wheel with the other hand. The second was that, at the time that the first defendant threw that beer bottle at the Holden, he had full control of the Mazda’s speed, location and direction.

Pleaded cause of action

6. [6]
   Because the relevant cases in this field have placed significant stress on the way in which the pleading has been framed, it is necessary, despite the Statement of Agreed Facts, to canvass the particularisation of the cause of action pleaded. In paragraph 6 of the Statement of Claim (Part D, entitled “Negligence”), the “negligence” alleged is that the first defendant:

• failed to exercise proper control over the Mazda to “avoid” injury to the plaintiff;
• failed to “avoid” an accident;
• failed to drive the Mazda for lawful purposes;
• drove the Mazda so that it could be used to position himself to throw a bottle at the Holden; and
• positioned the Mazda so he could throw the beer bottle at the Holden in contravention of s 26(1)(a) of the Summary Offences Act 2005.

As can be readily observed, the first and second particulars are at odds with the agreed facts, in circumstances of implicit deliberation. The remaining particulars appear to be addressed to some unidentified cause of action dependant on harassment or intimidation, or both.

Relevant legislation

7. [7]
   The relevant section for the present determination is s 5 of the MAIA (Reprint 5). It is unnecessary to look at the policy in the Schedule.

8. [8]
   In Lawes v Nominal Defendant,^[1] the position, as paraphrased by Muir JA (with whom Jones J agreed “with all” Muir JA had said), is that s 5(1) applies where a personal injury is “caused by, through or in connection with a motor vehicle...”:

1. (a)
   the injury is a result of one of the matters listed in s 5(1)(a); and

2. (b)
   the injury is caused, wholly or partly, by a wrongful act or omission in respect of the motor vehicle by a person other than the injured person: at 383 [35].

9. [9]
   Muir JA then noted that it was not challenged in that case that the requirement of s 5(1)(a) had been satisfied (namely, that “the injury” was a result of the driving of the motor vehicle): at 383 [36]. As he also noted, it was also not contended that the actual injuries were not “caused by, through or in connection with a motor vehicle”, being a matter which was conceded at first instance: also at 383 [36]. As he then identified, the focus of the argument was, thus, on s 5(1)(b).

The case as argued

10. [10]
    Because of the way in which the arguments developed, it is preferable that I identify the respective cases as argued in oral submissions.

11. [11]
    The second defendant submitted: that the “critical deficiency” was that there was nothing which pertained to the driving of the Mazda; and that that was the important consideration with respect to the engagement of s 5(1)(a) with s 5(1)(b), there needing to be “some wrongful act with respect to the driving, not simply the release of the bottle”.

12. [12]
    The second defendant also submitted that the two most relevant authorities were Mani v Nominal Defendant^[2] and Coley v Nominal Defendant.^[3] I will come to discussion of those particular cases later, noting that the plaintiff also identified those as the most directly relevant cases in question.

13. [13]
    The second defendant then submitted that, in an attempt to cure any defect in the pleading such as that which arose in Mani, the plaintiff had pleaded aspects of negligence which did not find a foundation in the Statement of Agreed Facts. In particular, the second defendant, first, sought to contend that, with respect to the driving of the vehicle, there was not some negligent (or wrongful) act of the driver of the Mazda which was separate from the throwing of the bottle. The second defendant, secondly, submitted that, in the authorities considered, the successful pleading “had specifically adverted (that) the manner of driving had been deliberate” and “to enable” the throw, therefore, that there needed to be some negligent aspect in the driving “such (as) that (he) unsafely swerved over at speed”.

14. [14]
    The third aspect of the second defendant’s submissions was that there was no factual basis upon which this Court could make any finding, either directly or inferentially, as to the driving of the Mazda, such as would identify some relevant fault on the driver, as driver. In particular, the second defendant, while conceding that there was a tortious act (i.e. assault occasioned to the plaintiff by the throwing of the bottle by the first defendant), argued that it was both the plaintiff’s case and the import of the agreed facts that the manner of the first defendant’s driving “was not at fault per se”.

15. [15]
    The plaintiff’s case, as articulated orally, centred around the submission that the plaintiff’s injury was “caused partly by (a) wrongful act in respect of the control of” the Mazda (emphasis added). It was submitted that the statute, by the use of the term “wholly or partly”, did not require a direct or proximate relationship (which would look to notions of cause found in insurance law) with the injuries caused by the use of the Mazda. That submission was developed by contending that there was, in this proceeding, a clear relationship between the driving of the Mazda and the throwing of the beer bottle by the first defendant, in particular because it was done from a moving vehicle which the first defendant was driving and because it occurred whilst the driver who threw the bottle was in complete control of the vehicle’s speed, location and direction in order to achieve that purpose.

16. [16]
    The plaintiff contended that, if there had been simply no reference in the pleading to the actual driving of the motor vehicle, and it was simply confined to the throwing of the object, then it would be conceded that that would be insufficient.

17. [17]
    The plaintiff contended that the driving was fundamental to the actual injury in circumstances where the driver of the Mazda maintained control of the vehicle in such a way as to allow him to throw the bottle by holding the steering wheel with one hand and throwing with the other hand.

18. [18]
    Those submissions culminated in the plaintiff’s proposition that the plaintiff did not have to show that the first defendant was speeding or was driving dangerously or “was, in fact, engaged in any unlawful conduct whatsoever”, it being sufficient that the first defendant was in control of the speed as it approached the Holden and that the first defendant was in control of the position of the vehicle on the road at the time of throwing the bottle. His written submissions asserted the “manner” of driving was a “wrongful act” in that the “controlling” the vehicle was to “effect a tortious act” which “led” to injury.

Relevant authorities

19. [19]
    Although many cases were canvassed, besides Coley and Mani the only other decision of direct utility is Lawes. Other cases, concerning different wording, in “seek(ing) to accommodate” different “cumulative criteria” which often do so by “telescoping them into a grammatical contortion” (see Allianz Australia Insurance Ltd v GSF Australia Pty Ltd & Anor,^[4] at 596 [93]) offer little assistance apart from confirming that words such as “result” and “cause” may not differ in their respective meanings or that a more restrictive operation of such insurance legislation should be preferred for the provisions under examination. Moreover, no argument was addressed as to the potential application of the Civil Liability Act 2003, a concern of the New South Wales Court of Appeal in Bayon v Bayon^[5] with respect to the concepts of causation in their application to a “duty of care” (as it is expressed in the Queensland legislation). Also, the recent examination by McColl JA in Leach v Nominal Defendant^[6] of decisions, including one which examined Mani in terms of the “driving” of the vehicle there “being merely the occasion for throwing” (at [63]) and Coley in terms of “doubt” about the “outcome” being “the same” under the New South Wales legislation, does not assist either, particularly for first instance determinations where precedent requires adherence to intermediate appellate based principles.

20. [20]
    In Coley, Mani was distinguished. Since Jerrard JA “respectfully agreed” with the reasons for judgment of McMurdo P, and since McKenzie J dissented, I will concentrate on the judgment of the President, particularly as it bears upon s 5(1)(a) and s 5(1)(b). Coley was a case in which it was alleged that the driver, or passenger, in another (unidentified) vehicle threw a Molotov cocktail into the injured person’s vehicle setting it alight and thereby injuring him. Dealing with s 5(1)(a)(i) of the MAIA, McMurdo P held that to come within that provision the applicant was required to establish at trial that the driving of the unidentified motor vehicle was, in a common sense way, a cause of the applicant’s injuries on the facts of the case and that the fact that the throwing of the Molotov cocktail was also a cause “will not necessarily preclude a finding at trial that the manner of driving was an additional cause, in a common sense way, of the injuries”: at 245 [20].

21. [21]
    When considering the second aspect [namely, s 5(1)(b)], McMurdo P identified the applicant’s pleaded case as contending that his injury was caused wholly, or partly, by the unidentified driver’s “wrongful manner of driving the car”. She held that the use of the words “wholly or partly” made it even clearer that it was not necessary to prove that the applicant’s injuries were caused “solely” by the manner of driving the unidentified motor vehicle and that it did not matter for this purpose if the throwing of the Molotov cocktail was a cause of the injuries “if the wrongful driving by the unidentified driver was also, in a common sense way, the whole or partial cause of his injuries”: at 245-246 [21].

22. [22]
    McMurdo P felt able to distinguish Mani by characterising the pleadings in that earlier case as alleging that “the throwing of or causing the rock to be thrown gave rise to a foreseeable risk of injury”: at 246 [24]. She then stated that, in those circumstances, there was no option but to conclude that, at its highest, the case could not have succeeded as it did not claim that the driving caused the injury but instead claimed that the throwing caused the injury: at 246 [24].

23. [23]
    Because of the analysis of Mani in Coley, I will mention but briefly one passage from the decision of Helman J in that earlier case. As put by him, in “another way” the moving motor vehicle “provided the opportunity for the malefactor to throw the rock”; but the throwing of the rock was not a result of the driving of the unidentified motor vehicle, since the driving “was merely the occasion for the throwing of the rock”: at 258. As he then concluded, the two activities “were discrete, though contemporaneous, whether or not done by the same person”: also at 258.

24. [24]
    The analysis undertaken by Muir JA in Lawes does seem to provide some additional illumination. After referring to the passage by Keane JA in Raschke v Suncorp Metway Insurance Limited^[7] (at 561 [37]), referable to the argument that the wrongful act or omission referred to in s 5(1)(b) “must relate directly to one or more of the matters referred to” in s 5(1)(a), he held that it was not a construction which he favoured because s 5(1)(b) “has its own words of qualification or limitation”, being that the “wrongful act of omission” must be “in respect of the motor vehicle” and must be “by a person other than the injured person”: at 384 [39]-[41].

25. [25]
    As Muir JA went on to decide in Lawes, the two paragraphs in question are concerned with different matters, with s 5(1)(a) requiring the relevant injury to be the “result” of one or more specified matters and s 5(1)(b) requiring the injury to be “caused” by a wrongful act or omission linked to the subject motor vehicle. Turning to the requirements of s 5(1)(b), he held, further, that the term “in respect of” has a very wide meaning and that the relevant enquiry concerns the existence of a “discernable and rational link” between the vehicle and the driver’s wrongful act or omission and not whether there is some different, and perhaps stronger, link between the driver’s wrongful (act or) omission and some other fact or circumstance: at 386 [48]. He next held that, for the identification of the basis of legal liability for the purposes of determining the existence, or not, of a discernable and rational link between the motor vehicle and that identified basis, it is not necessary for such a link to exist that the wrongful act or omission involves the driving of the motor vehicle because there is no express or implied requirement for that in s 5(1)(b): at 386 [49]. Nevertheless, in determining the matter on basis of facts presented to a court, the connection between the vehicle and the driver’s wrongful omission must be more than one of “time or sequence”: at 386 [50].

Consideration

26. [26]
    In this particular proceeding, on the agreed facts, the first defendant deliberately threw the beer bottle with one hand while, with the other hand, he had, by its use on the steering wheel and by the way in which he drove the motor vehicle, full control of the Mazda’s speed, location and direction. There was no real contest that the personal injury was caused “by, through or in connection with” the insured Mazda. It was, indeed, “common ground” in Coley: at 244 [10]. The real contest concerned the next limbs which depended on the “if, and only if” criteria. On the authorities that bind me: I find that the injuries are a “result” of the driving (despite another cause) (see Jerrard JA in Coley at 248 [30]-[31] referring to “the furtherance of the one common purpose”); but I also find that there is no discernable and rational link on the pleading between the motor vehicle and any wrongful act on the part of the second defendant (which is simply pleaded as “negligence”) because no negligent act has arisen on the “agreed facts”. This is despite the arguability of such a connection between the motor vehicle and an identifiable wrongful act, being more than one of time or sequence, perhaps from the manner or some aspect of the driving of that vehicle in that way in order to perform that act which might have been able to be characterised as “wrongful” in another form of pleading and have been at least, in part, a “cause” of the injuries if some applicable tort was discerned (and pleaded).

27. [27]
    While it is important that s 4 of the MAIA defines “wrongful act” as including a “negligent act” and, therefore, has a wider meaning, the plaintiff’s Statement of Claim does not allege that the wrongful act fell within such a characterisation, simply relying upon “negligence”.

28. [28]
    Since I must determine the outcome to this application on the pleaded case while taking into account the agreed facts set out in Exhibit 1, the only conclusion that I am driven to make is that the present pleading precludes a declaration that the MAIA applies to this proceeding since it relies on negligence for the “wrongful act”.

29. [29]
    This has the necessary consequence that I must dismiss the substantive part of the application.

Costs

30. [30]
    It seems inevitable to me that the plaintiff must pay the second defendant’s costs of the application. But I will not make that order without hearing from the parties. In which case, I will order that both parties file, and serve, written submissions with respect to costs.