Court of Appeal New South Wales

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1 1 of 17 20/08/2014 7:19 PM Court of Appeal New South Wales Medium Neutral Citation Decision Date Before Decision Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) [2014] NSWCA /08/2014 McColl at [1], Gleeson JA at [77], Sackville AJA at [78]] Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, and Parties should in particular note the time limit of fourteen days in Rule ] Catchwords Legislation Cited Cases Cited Texts Cited TORTS - motor vehicle accidents - where appellant passenger in Mitsubishi car - where Commodore car collided with Mitsubishi - where rear of Mitsubishi moved slightly to left - where appellant injured by gunshots then fired from Commodore into Mitsubishi - whether appellant's injuries caused by fault of driver of Commodore in the use or operation of that vehicle either during its driving or during a collision - s 3A Motor Accidents Compensation Act 1999 (NSW) Civil Liability Act 2002 (NSW) Motor Accident Insurance Act 1994 (Qld) Motor Accidents Act 1988 (NSW) Motor Accidents Compensation Act 1999 (NSW) Motor Accidents Compensation Amendment Act 2006 (NSW) Supreme Court Act 1970 (NSW) Trade Practices Act 1974 (Cth) Transport Accident Act 1986 (Vic) Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 Australian Casualty Co Limited v Federico [1986] HCA 32; (1986) 160 CLR 513 Axiak v Ingram [2012] NSWCA 311; (2012) 82 NSWLR 36 Coley v Nominal Defendant [2003] QCA 181; [2004] 1 Qd R 239 I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109 Lasermax Engineering Pty Limited v QBE Insurance (Australia) Limited [2005] NSWCA 66; (2005) 13 ANZ Insurance Cases Mani v Nominal Defendant [2002] QSC 152; [2003] 1 Qd R 248 Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11; (2006) 228 CLR 529 Nominal Defendant v Hawkins [2011] NSWCA 93 RG & KM Whitehead Pty Ltd v Lowe [2013] NSWCA 117; (2013) 63 MVR 375 Ross v Transport Accident Commission [2000] VSC 112; (2000) 30 MVR 521 Zotti v Australian Associated Motor Insurers Ltd [2009] NSWCA 323; (2009) 54 MVR 111 Second Reading Speech, Motor Accidents Compensation Amendment Bill 2006 (New

2 2 of 17 20/08/2014 7:19 PM South Wales Legislative Assembly, Parliamentary Debates, (Hansard), 9 March 2006) High Court Bulletin [2010] HCAB 7 Category Parties Representation Principal judgment Steven Leach - Appellant The Nominal Defendant (QBE Insurance (Australia) Ltd) - Respondent Solicitors: Beston Macken McManis - Appellant Gillis Delaney Lawyers - Respondent Counsel: D R Campbell SC with D Hourigan - Appellant A J Black SC - Respondent File Number(s) DECISION UNDER APPEAL Before Date of Decision Publication Restriction Kearns DCJ 6/06/2013 No JUDGMENT McCOLL JA: On 28 November 2008 at about 9.50pm the appellant, Mr Steven Leach, was a passenger in a Mitsubishi Magna sedan. A white Holden Commodore struck the Mitsubishi causing its rear to move slightly to the left. Gunshots were then fired from the Holden into the Mitsubishi. The appellant was shot and suffered serious injuries. The driver of his car drove into a service station and stopped the car. The Commodore was driven away. It was later discovered burnt out. It had been stolen. It was also uninsured. The driver was never identified. The appellant brought proceedings against the respondent, the Nominal Defendant, pursuant to s 33 of the Motor Accidents Compensation Act 1999 (NSW) (the "MAC Act") in the District Court of New South Wales, contending that the injuries he suffered by reason of being shot were caused by the conduct of the driver of the Commodore. His Honour Judge Kearns SC heard the issue of the respondent's liability as a separate question. That question turned on whether the appellant's injuries were caused by the fault of the driver of the Commodore in the use or operation of the vehicle during either the driving of the Commodore or during a collision with the Commodore within the meaning of s 3A of the MAC Act. His Honour answered that question in the negative and entered a verdict in favour of the respondent: Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (District Court (NSW), 6 June 2013, unrep). The appellant appeals against his Honour's decision. It is common ground that the appellant did not need leave to appeal as the judgment was a final one and there was evidence that the appellant's injuries were such that any damages which he might have been awarded had liability been found in his favour would have exceeded $100,000: s

3 each v The Nominal Defendant (QBE Insurance (Australia) Ltd) [ of 17 20/08/2014 7:19 PM 101(2)(r)(i), Supreme Court Act 1970 (NSW). 6 For the reasons that follow, I am of the view that the appeal should be dismissed. Legislative framework The respondent's liability turned on Part 2.4 of the MAC Act as in force at 28 November That Part applied "to and in respect of a motor accident occurring before or after the commencement of this Act": s 31. Pursuant to s 33(1) of the MAC Act an action for the recovery of damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle that is not an insured motor vehicle in the use or operation of the vehicle on a road in New South Wales may be brought against the Nominal Defendant. The Nominal Defendant is liable in respect of any such action, as if it were the owner or driver of the motor vehicle: s 33(3). However, in order for Part 2.4 to be engaged it was common ground the appellant had to pass through the gateway to the MAC Act found in s 3A which relevantly provided: "3A General restrictions on application of Act (1) This Act (including any third-party policy under this Act) applies only in respect of the death of or injury to a person that is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle and only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during: (a) the driving of the vehicle, or (b) a collision, or action taken to avoid a collision, with the vehicle, or (c) the vehicle's running out of control." 10 Other relevant provisions of the MAC Act as in force at the date the appellant was injured were: "s 3 Definitions: fault means negligence or any other tort. injury means personal or bodily injury... motor accident means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during: (a) the driving of the vehicle, or (b) a collision, or action taken to avoid a collision, with the vehicle, or (c) the vehicle's running out of control... 5 Objects of Act (1) The objects of this Act are as follows:

4 each v The Nominal Defendant (QBE Insurance (Australia) Ltd) [ of 17 20/08/2014 7:19 PM... (b) to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims.... (d) to keep premiums affordable, recognising that third-party bodily insurance is compulsory for all owners of motor vehicles registered in New South Wales, (e) to keep premiums affordable, in particular, by limiting the amount of compensation payable for non-economic loss in cases of relatively minor injuries, while preserving principles of full compensation for those with severe injuries involving ongoing impairment and disabilities.... (2) It must be acknowledged in the application and administration of this Act: (a) that participants in the scheme under this Act have shared and integrated roles with the overall aim of benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable... 6 Interpretation and application of Act by reference to objects (1) In the interpretation of a provision of this Act or the regulations, a construction that would promote the objects of this Act or the provision is to be preferred to a construction that would not promote those objects." 11 Portions of the Civil Liability Act 2002 (NSW), relevantly s 5D dealing with causation, prima facie also applied to the accident: s 3B(1)(e) and s 3B(2)(a), Civil Liability Act. The appellant submitted that that provision did not assist in the interpretation of s 3A of the MAC Act. The respondent did not demur. It is unnecessary finally to determine that issue. In Nominal Defendant v Hawkins [2011] NSWCA 93 ("Hawkins") (at [45]) Hodgson JA (Beazley JA and Sackville AJA agreeing - the latter adding some observations) expressed the view that a finding "that the definition of 'injury' in the MAC Act was satisfied" meant there "was no substantial question as to whether s 5D of the Civil Liability Act 2002 was also satisfied". It is sufficient to proceed on that basis. Factual Background In his amended statement of claim filed in the District Court on 28 May 2013 the appellant pleaded, inter alia, that his injuries and disabilities were "caused by the conduct of the driver" of the Commodore. Among the particulars were the allegations that the driver rammed the Mitsubishi, drove the Commodore "in a dangerous manner" and so as "to facilitate shots being fired at the plaintiff", used the Commodore "as a weapon against the plaintiff" and participated "in the assault of the plaintiff by using the [Commodore] to facilitate the shooting of the plaintiff." The parties agreed on the following statement of facts (primary judgment at [4]): "(1) Around 9:50pm on 28 November 2008 the plaintiff was a front seat passenger in a blue/grey Mitsubishi Magna sedan, registered number XXX ('vehicle 1').

5 5 of 17 20/08/2014 7:19 PM (2) Around 9:50pm vehicle 1 was travelling south in lane 1 on the Prospect Highway, Seven Hills on the railway overpass near Seven Hills Station. (3) At all material times the driver of vehicle 1 was Desmond David Russell. (4) At all material times the registered owner of vehicle 1 was Rachel Carter. (5) At about 9:50pm a white Holden Commodore sedan registered number XXX ('vehicle 2') travelling south in lane 2 on the Prospect Highway, Seven Hills collided with vehicle 1. (6) The driver of vehicle 2 was and is unidentified, the vehicle having previously been stolen from the owner. (7) The point of impact between vehicle 1 and vehicle 2 was the rear offside bumper of vehicle 1 and the front near side panel and bumper of vehicle 2. (8) At some time gunshots were fired from within vehicle 2. The plaintiff was injured by that gunfire." 14 Mr Russell gave evidence that the primary judge accepted (at [7]) that: "[7]...Where the impact of the cars occurred, there were two trafficable lanes in both directions separated by a median strip. Mr Russell was travelling in the far-left lane. The Commodore was behind him in the adjacent lane. The Commodore moved to the left. I infer that the driver did so deliberately. I infer that he did so that he could cause a collision. The cars collided. The result was that the car Mr Russell was driving was jolted somewhat. Its rear tended to move slightly to the left and its front slightly to the right. To some extent, Mr Russell lost control..." A couple of seconds later at most (primary judgment at [9]), shots were fired at and into Mr Russell's car. Almost immediately after the commencement of the gunfire, the appellant slumped onto Mr Russell's lap: primary judgment at [10]. Mr Russell panicked, drove over the median strip onto the wrong side of the highway and into a service station where he stopped: primary judgment at [8]. On examination afterwards there were 20 bullet holes in the Mitsubishi. There was no evidence that the collision itself caused any injury to the appellant. The respondent submitted, without contradiction, that the gunfire caused the appellant's injuries. This fact does not, of course, answer the causation inquiry s 3A poses. The primary judge found: "[14] These primary facts enable me to infer and I do infer that the driver of the Commodore was complicit in an enterprise designed to shoot the [appellant]. It was planned. It could hardly be otherwise. All the shots came from the Commodore. There was no evidence to suggest otherwise. There were two calibres of bullets or spent cartridges. There were therefore at least two different firearms in the Commodore. It is unlikely that one person fired 20 shots from two firearms. I infer that in the Commodore there were two passengers who shot at the plaintiff. Those passengers and the driver must have set out on a plan to shoot. The driver drove the Commodore in a manner that facilitated the firing of the weapons at the plaintiff." (Emphasis added) 18 (1) The primary judge considered (at [17]) that to bring himself within s 3A the appellant had to establish: That he was injured;

6 6 of 17 20/08/2014 7:19 PM (2) (3) (4) That his injury was caused by the fault of the driver of the Commodore; That the fault of the driver of the Commodore was in the use or operation of the car; That the injury was a result of and caused by the driving of the car. As such, his Honour framed the critical question (at [18]) as "whether the injury was caused by the fault of the driver of the Commodore and whether the injury was a result of the driving of the car." Both parties relied on Hawkins. In that case, the plaintiff was riding a bike along the Pacific Highway. The occupants of a car driving behind him were yelling, beeping the horn and creating a commotion. The plaintiff felt intimidated and rode onto the footpath. An object thrown from the car struck him. He lost control of his bike, collided with a telegraph pole and was injured. It was found that the driver drove the car so as to facilitate the object being thrown. Hodgson JA held (Hawkins (at [42])) that if "the throwing of the object can properly be considered as part of or incidental to the harassing driving of the vehicle" the definition of "injury" in the MAC Act would be engaged, but that it was not if "it is properly considered as an occurrence which is in a substantial way distinct from or independent of this harassing driving of the vehicle." The primary judge accepted (at [25]), that Hawkins recognised that to fall within the MAC Act, "[t]he fact that the gunfire caused the injury [did] not exclude that fault in driving could also have caused [it]". His Honour distinguished Hawkins on two grounds. First (at [28]), although "there was driving fault here", there was "not the pattern of harassing driving". Rather, the "first Mr Russell was aware of any act of harassment or intimidation was when the cars collided and the shots were then fired almost immediately": primary judgment at [28]. Secondly, his Honour did not consider: "[29]... gunfire can properly be considered to be part of or incidental to the negligent driving in this case. It is substantially distinct from and independent of it. The gunfire was not a continuum of or part of an escalation of the negligent driving. The throwing of the object in Hawkins is something that developed in the process of harassment. The firing of the guns in this case was something that was planned." (Emphasis added) Accordingly, the primary judge concluded (at [30]), applying a common sense approach to causation, that it could not be said the appellant's injuries were caused by the fault of the driver of the Commodore or that the injury was a result of the driving of that car. His Honour then said: "[31] The matter may be tested to some extent by a hypothetical. If, in similar circumstances, except for the negligence in changing lanes and causing the collision, a person was shot that person would not fall within the Act. This is because critical to the plaintiff's case is the negligence in crossing the lane and causing the collision. The test of causation cannot be so fickle as to deny that plaintiff recovery, but allow it in this case. [32] The firing of the guns in this case did not need the changing of lanes and collision for its occurrence. The firing of 20 rounds at the one target is suggestive of the fact that it was going to happen whether the driver of the Commodore was driving carefully or carelessly."

7 7 of 17 20/08/2014 7:19 PM 27 His Honour therefore concluded that the appellant's injuries did not fall within s 3A of the MAC Act. Accordingly, he ordered a verdict for the respondent. In a separate judgment he ordered the appellant to pay the respondent's costs on the ordinary basis: Leach v Nominal Defendant (QBE Insurance (Australia) Ltd) (District Court (NSW), 7 June 2013, unrep). Issues on Appeal 28 The appellant's extensive grounds of appeal as set out in his further amended notice of appeal state: "(1) The Primary Judge erred in failing to find that the Appellant's injury was caused by the fault of the driver of the motor vehicle in the use or operation of the vehicle, within the meaning of s 3(1) and/or s 3A of the Motor Accidents Compensation Act 1999 ('the Act'). (2) Having found that the driver of the motor vehicle drove the vehicle in a manner involving fault, so as to facilitate the firing of shots into the vehicle in which the Appellant was travelling, the Primary Judge erred by failing to find that the shooting of the Appellant was part of or incidental to the said driving. (3) The Primary Judge erred in concluding that the shooting was substantially distinct from or independent of the harassing and fault based driving of the driver of the vehicle. (4) The Primary Judge, having found that the shooting arose from a planned course of conduct, erred in failing to find that the injury sustained by the Appellant was integral to the harassing and intimidatory course of conduct that itself involved fault based driving on the part of the driver of the vehicle, thereby necessarily attracting liability on the part of the Respondent in accordance with s 3(1) and/or s 3A of the Act. (5) The Primary Judge erred in seeking to apply what he described as a common sense approach to causation, instead of endeavouring to apply the facts as found in accordance with the terms of s 3(1) and/or s 3A of the Act. (6) The Primary Judge erred in hypothesising whether the driver based fault causative of the collision was necessary for the plan he found to have existed to have been carried out. (7) The Primary Judge erred in failing to find that the fault based harassing driving was a part of a plan to facilitate the shooting of the Appellant. (8) In dealing with causation, the Primary Judge failed to take into account sufficiently or at all the following factual findings: (a) The point of impact between the vehicle in which the Appellant was a passenger (vehicle 1) and the Respondent's vehicle (vehicle 2) was the rear offside bumper of vehicle 1 and the front near side panel and bumper of vehicle 2. (b) Vehicle 2 was behind vehicle 1 in the adjacent lane. (c) Vehicle 2 moved to the left. (d) Vehicle 2 moved to the left deliberately so that [the driver] could cause a collision. (e) The vehicles collided. (f) The result of the collision was that vehicle 1 was jolted, its rear moving slightly to the left, and its front slightly to the right. (g) The driver of vehicle 1 lost control. (h) The driver of vehicle 1 'took his foot off the accelerator, his hands, which were on the steering wheel, moved rather rapidly up and down so that he was moving the steering wheel quickly, alternately left and right in small movements.' (9) Having found that the driver of the Commodore deliberately moved to the left so as to cause a collision with the vehicle in which the Appellant was a passenger, his Honour erred in categorising that driving as negligent. Instead, his Honour ought to have found that the said driving constituted an assault upon the occupants of the vehicle in which the Appellant was travelling." (Emphasis in original)

8 8 of 17 20/08/2014 7:19 PM Appellant's Submissions The appellant's first submission is that the MAC Act does not create the cause of action on which the appellant sues. Rather, it merely regulates procedures relating to motor accident injuries and motor accident claims, identifies the categories of events that come within its purview, modifies the damages that are recoverable by a claimant, and places the responsibility for the satisfaction of those damages at the feet of licensed statutory insurers. Secondly, the appellant submits that all elements of s 3A of the MAC Act were satisfied. He suffered personal or bodily injury (s 3) that was caused by "fault" as defined. This was because the primary judge found (at [29]) the Commodore was driven negligently. Alternatively, his Honour's conclusion (at [14]) that the Commodore was driven deliberately into the left lane to collide with the Mitsubishi meant an assault was committed upon him, participated in by the driver of a vehicle. An assault, being a tort, is also encompassed by the definition of "fault". Thirdly, the appellant submits that driving in a manner to facilitate the firing of guns from the vehicle constituted "use" within s 3A: RG & KM Whitehead Pty Ltd v Lowe [2013] NSWCA 117; (2013) 63 MVR 375 ("Whitehead") (at [40]) per Tobias AJA. Fourthly, the appellant submits that the primary judge misdirected himself by considering (at [17(4)]) that to fall within s 3A the appellant had to establish that the injury was a result of and caused "by", rather than "during" the driving of the car: cf s 3A, MAC Act. Fifthly, the appellant argues the primary judge erred in distinguishing Hawkins. He contends his Honour should have found that his injury was a result of and caused during the driving of the Commodore because the driver's actions in driving so as to deliberately collide with the appellant - thus causing the Mitsubishi to lose control - was an incident of a plan to shoot him in the disabled car. Sixthly, the appellant submits the primary judge erred fundamentally (at [31]) when applying the common sense causation test. It was not to point, he argues, that the shooting might have taken place without fault based driving. The primary judge had to consider whether the statutory provisions were satisfied on the facts as found. Respondent's submissions The respondent first submits that, in accordance with s 6(1), and taking into account the objects of the MAC Act in s 5(1)(b) and (d), s 3A should be interpreted in a manner that limits the injuries to which the MAC Act responds. Secondly, the respondent submits that s 3A of the MAC Act required the appellant's injury be sustained during, and as a consequence of, the driving of the motor vehicle. It argues while there was fault by the driver of the Commodore in causing the impact with the Mitsubishi, that fault had no causal connection or relevance to the discharge of firearms from the Commodore into the Mitsubishi. It contends that s 3A does not apply to fault in facilitating a criminal act by a passenger "unconnected with the actual driving or operation of the vehicle": Hawkins (at [33]). Thirdly, the respondent submits the primary judge was correct in distinguishing Hawkins. Whereas in that case the action of the passenger in throwing the object at the plaintiff was part of, or incidental to, the course of harassment by the driver of the vehicle, in the present case there was a disconnect between the nature of the acts of the driver and those of the

9 9 of 17 20/08/2014 7:19 PM shooter(s), such that the appellant's injuries were not "caused" by the fault of the driver in the requisite sense. 38 Fourthly, the respondent submitted that the effective or dominant or proximate cause of the appellant's injuries was the gunfire from the Commodore, not the driving of that vehicle. Consideration Section 3A of the MAC Act is the "governing provision for the application of the [MAC] Act (apart from Part 1.2) to a claim for damages by a person injured in a motor accident": Axiak v Ingram [2012] NSWCA 311; (2012) 82 NSWLR 36 ("Axiak") (at [60]) per Tobias AJA (Beazley JA and Sackville AJA agreeing) (application for special leave to appeal refused: Ingram v Axiak [2013] HCATrans 64). Both parties accepted that Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 ("Allianz") was the seminal authority for determining the question whether the appellant's injuries were caused in a manner which fell within s 3A of the MAC Act. This was even though Allianz concerned the question whether an employee's back injury fell within the definition of "injury" in s 3(1)(a)(iv) ("such use or operation by a defect in the vehicle") of the Motor Accidents Act 1988 (NSW) (the "MAA Act"). Allianz was discussed in Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11; (2006) 228 CLR 529 ("GLG") which also concerned s 3(1) of the MAA Act and to which I refer in more detail below. Tobias AJA held in Whitehead (at [41]), that the definition of "injury" in the MAA Act considered in GLG was relevantly identical with s 3A of the MAC Act. That is also the case for present purposes. While there are some differences between the language of the provisions considered in Allianz and GLG, they are not presently material. This case arises under the MAC Act. The structure of that Act differs from that of the MAA Act. The gateway to recovery of damages under the MAA Act was s 69 which picked up the definition of "injury" in s 3. That definition was an aid to the construction of s 69, whose meaning depended on the context and object of the substantive enactment: Allianz, per McHugh J (at [12]). The MAA Act definition of "injury" was on all fours with the definition of "injury" in the MAC Act until In that year, the MAC Act was amended by the Motor Accidents Compensation Amendment Act 2006 (NSW) (the "2006 Amendment Act"). The 2006 Amendment Act relevantly inserted the present definition of "injury" and "motor accident" as well as s 3A. The insertion of s 3A was "intended to clarify that the Act applies to death or injury caused in an accident occurring during the driving of the vehicle, a collision or the vehicle running out of control and not to an injury that arises gradually from a series of incidents": Second Reading Speech, Motor Accidents Compensation Amendment Bill 2006 (New South Wales Legislative Assembly, Parliamentary Debates, (Hansard), 9 March 2006, at 21404). In Allianz, Gummow, Hayne and Heydon JJ who delivered a joint judgment, and McHugh J in his separate reasons, were all influenced by the objects of the MAA Act in determining how to approach its construction. McHugh J emphasised (at [61]) that as "the objects of Pt 6 and the Act as a whole emphasise cost-saving considerations, an expansive interpretation of the definition of injury would not promote the objects of the Act or Pt 6". McHugh J was of the view (Allianz (at [41])) that the "language of the [MAA] Act reflects the concept of causation at common law". Nevertheless because the task was one of statutory

10 each v The Nominal Defendant (QBE Insurance (Australia) Ltd) [ of 17 20/08/2014 7:19 PM construction, he said, "the question of causation must be determined in light of the subject, scope and objects of the Act". In this respect his Honour concluded: "[49] In pursuit of the Act's objects, Parliament has limited the scope of the Act by means of the concept of causation. The amendment requires a close causal connection between the use of the vehicle and the injury. Mere connection 'in some way to the use of a motor vehicle' is not enough to bring an injury within the scope of the Act." (Emphasis added) See also McHugh J (at [53], [61]) McHugh J (at [54]) eschewed the use of "metaphysical concepts such as 'proximate cause' or 'immediate cause'" in addressing the question of causality. In his view (at [54]), under the MAA Act, "there must be a finding that, of the entire set of circumstances that contributed to the injury, it was [the relevant sub-paragraph of the definition] that caused the injury." His Honour also recognised (at [55]) that "[w]here several factors operate to bring about the injury to a plaintiff, selection of the relevant antecedent (contributing) factor as legally causative requires the making of a value judgment and, often enough, consideration of policy considerations. This is because the determination of a causal question always involves a normative decision." McHugh J concluded (at [53]) after examining the subject, scope and purpose of the MAA Act that: "...[T]hree matters... are relevant in the construction of Pt 6 of the Act. First, the Act does not provide a universal compensation scheme for all injuries sustained in connection with a motor vehicle. Second cost-saving and the need to keep the scheme affordable are significant objects of the Act. Third the Act has tightened the definition of injury by reference to its cause. These three matters indicate that, in the inquiry into the question of causality, an approach that limits the scope of the Act is preferable to one that would extend its application. This in turn suggests that a close causal connection is required for the injury to satisfy the requirement the injury be 'caused... by a defect in the vehicle'." (Emphasis added) 48 The plurality also determined (see [99]) the notion of "cause" in the MAA Act by reference to its statutory subject, scope and purpose. Their Honours contrasted (at [100] - [101]) the approach to causation under s 82 of the Trade Practices Act 1974 (Cth) in which context "[i]t is enough to demonstrate that contravention of a relevant provision of [that] Act was a cause of the loss or damage sustained" (I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109 at [57]) with the approach under the MAA Act. In the latter case: "[101]... [T]he subject, scope and purpose of the 1995 Act, and the changes it made to the Motor Accidents Act, point in the other direction. The text of the new definition of 'injury' manifests that legislative policy of restricting previous overbroad interpretations of the CTP insurance legislation. A stated object of the changes made by the 1995 Act was (s 2A(1)(b)) the reinstatement of a common law based scheme but (s 2A(2)(a)) to keep premiums 'affordable by containing 'the overall costs of the scheme within reasonable bounds'. A construction which promotes that object is to be preferred (s 2B(1))." (Emphasis added) Section 5(2)(a) of the MAC Act reflects s 2A(2)(a) of the MAA Act, while s 6(1) reflects s 2B(1). 49 Applying that approach, the plurality concluded (footnotes omitted): "[102] The use in the definition of the emphatic and intensive phrase 'if, and only if' directs attention to notions of predominance and immediacy rather than to more removed circumstances. The definition of 'injury' looks, for the CTP insurance system, to notions of proximate cause found in insurance law. That construction is consistent with the subject,

11 11 of 17 20/08/2014 7:19 PM scope and purpose of the 1995 Act." See also Callinan J (at [131]). The High Court concluded in Allianz, that the employee's injury was not an "injury" for the purposes of the s 3(1) definition. This was because it was the system of work, rather than the defect in the vehicle, which had "a predominant quality for, and an immediacy to" the injury (at [103] per Gummow, Hayne and Heydon JJ), the defect in the vehicle had no physical connection with the injury (McHugh J (at [60] - [61])) and the injury was not a result of the defect (Callinan J (at [129])). In Hawkins (at [25]), Hodgson JA expressed the view, by reference to Allianz (at [53], [102] and [131]) that that case required "a strict reading of expressions such as 'caused by' and 'is a result of' in the relevant definition of 'injury'". His Honour's views were expressed in relation to the version of the MAC Act as it stood prior to the 2006 amendments, but when the definition of "injury" was on all fours with that considered in Allianz. The insertion of s 3A as a gateway to the recovery of damages under the MAC Act reinforces the requirement for a strict reading. The effect of Allianz is relevantly as follows. First, to fall within s 3A, the appellant has to establish that his injury was caused by the fault of the driver in the use or operation of the Commodore: McHugh J (at [19]). Secondly, the appellant must satisfy the temporal criterion that his injury was sustained during either the "driving of the [Commodore]" or "a collision with the [Commodore]". (It was not suggested that the Commodore ran out of control: s 3A(1)(c) - some reference was made to the driver of the Mitsubishi slightly losing control (primary judgment (at [7])), but s 3A(1)(c) looks to the at fault vehicle losing control). Thirdly, the appellant has to satisfy the causation criterion, that his injury was sustained as a consequence of those events: Allianz (at [94]) per Gummow, Hayne and Heydon JJ; see also McHugh J (at [17] - [18], [24); Callinan J (at [131]). This means that he had to establish that those events were the proximate cause of his injuries, guidance for which is to be found in insurance law: Allianz (at [102]). In the law of insurance the words "proximate cause" and "direct cause" came to be used interchangeably: see generally Lasermax Engineering Pty Limited v QBE Insurance (Australia) Limited [2005] NSWCA 66; (2005) 13 ANZ Insurance Cases ("Lasermax")(at [39] ff) per McColl JA (Ipp and Tobias JJA agreeing); Zotti v Australian Associated Motor Insurers Ltd [2009] NSWCA 323; (2009) 54 MVR 111 ("Zotti") (special leave granted ([2010] HCATrans 62), but matter discontinued) (at [49] - [51]) per Allsop P (McColl JA agreeing). In that context, "the proximate or direct cause of an injury" is not "a cause of the cause, or the mere occasion of the injury": Australian Casualty Co Limited v Federico [1986] HCA 32; (1986) 160 CLR 513 (at 521) per Gibbs CJ. As discussed in Lasermax (at [44]), "... 'The qualities of reality, predominance and efficiency of a cause prevail over proximity in time in determining what cause or causes are proximate.' Hence the proximate or direct cause is described as the 'dominant' cause... 'that which is proximate in efficiency' and 'the real effective cause'". In Allianz (at [102]) the plurality referred to Australian Casualty Co Limited v Federico (at ). In that passage Brennan J (as his Honour then was) discussed, in the insurance context, the fact that a "deliberate act may be a more remote cause which sets in train a series of events the last of which is the proximate cause of bodily injury". After referring to that cross-reference in Hawkins (at [33]), Hodgson JA observed that he did not understand the plurality:

12 12 of 17 20/08/2014 7:19 PM "... to be altogether ruling out the possibility that there may be more than one cause which is sufficiently predominant or immediate or proximate to satisfy the requirements of causation in the definition of 'injury' in the MAC Act. However, clearly in my opinion they are saying that the fault in the use or operation of the vehicle, and the driving of the vehicle (in those cases where par (a) of the definition of 'injury' is in question), must have a very substantial causative role; and that in the former case its character as fault must be related to the actual use and operation of the vehicle as such, rather than merely as fault (with the aid of the motor vehicle) in facilitating a dangerous or criminal act by a passenger unconnected with the actual driving or operation of the vehicle." (Emphasis added) GLG, to which I earlier referred, concerned the question whether the plaintiff's injury was "a result of and... caused during... the driving of the vehicle" under par (a)(i) of the definition of "injury" in s 3(1) of the MAA Act. The plurality, Gleeson CJ, Gummow, Hayne and Heydon JJ, held (at [32] - [33]) in reasons not essential to their conclusion, but clearly seriously considered, that, applying the notion of proximate cause adopted by the plurality in Allianz looked to "the predominant cause" and what was "proximate and immediate in both time and space". In Zotti this Court considered the temporal criterion identified in Allianz. Mr Zotti alleged he was injured when he lost control of his bicycle at an intersection after slipping on oil left on the road following a collision some hours earlier. He was refused leave to commence proceedings against the driver whose vehicle had been involved in the collision, because the primary judge held there was no temporal connection between the oil spillage and the bicycle accident and hence, no "injury" attracting the operation of the MAC Act as in force prior to the 2006 amendments. The definition of "injury" was in the same form as that considered by the High Court in Allianz. Spigelman CJ (Allsop P and McColl JA agreeing) accepted (at [22]) that "the word 'collision' does not refer only to the point of impact [and that] [i]t may well be the case that, for as long as the vehicles which had collided remained in their post-collision positions, the 'collision' would still be in existence". However his Honour rejected (at [23] - [24]) a submission that the "collision" continued until the effects of the collision have been removed. In his Honour's view "[a]fter the cars have been removed it cannot be said that the 'collision' was still extant [and] [d]etritus such as oil is simply aftermath, not a continuation of the original event". Hodgson JA (at [60]) held that the dicta in Allianz (at [93] - [94]) meant that "the injury must be sustained during the relevant event". Accordingly "it [was] not sufficient that the significant causal elements be established during the event, if the actual injury occurs some time later". However his Honour was of the view (see [61]) that the phrase "during a collision" did "not delimit a time that extends only to the period during which the colliding vehicles are actually in contact" and "in those cases where two vehicles come to a stop shortly after the impact, the phrase would extend as far as the time when they come to a stop". However in his Honour's view, the language of the definition did not permit the period covered by the expression to extend "to the time when the vehicles (or perhaps debris) are removed from the road". The High Court granted special leave to appeal in Zotti (Zotti v Australian Associated Motor Insurers Ltd [2010] HCATrans 62) but the appeal was discontinued: High Court Bulletin [2010] HCAB 7. In Hawkins (at [36]ff) Hodgson JA considered other cases in which a person was injured as the result of the criminal conduct of an occupant of a motor vehicle. His Honour concluded that each case would be decided the same way under the MAC Act. In Ross v Transport Accident Commission [2000] VSC 112; (2000) 30 MVR 521 a car that

13 13 of 17 20/08/2014 7:19 PM had been travelling behind the plaintiff's car drew alongside it, and a person shot the plaintiff a number of times from that car. Beach J held that the shooting of the plaintiff was not "directly caused by the driving of a motorcar" (the statutory requirement: s 3, Transport Accident Act 1986 (Vic)), but by the action of the person in the possession of the gun pointing the gun at the plaintiff and pulling the trigger. Hodgson JA held (Hawkins at [37]) that a similar result would follow on those facts under the MAC Act as "[t]here was no relevant driving fault sufficiently connected with the injury to justify a finding that the injury was within the definition of 'injury' in the MAC Act" For the same reasons, Hodgson JA concluded (at [38] - [39]) that the outcome in Mani v Nominal Defendant [2002] QSC 152; [2003] 1 Qd R 248 ("Mani") would be the same under the MAC Act. In Mani, the plaintiff was injured when, while driving a van along a road someone in an unidentified motor vehicle travelling in the opposite direction threw a rock at his van, smashing the windscreen. Helman J held (at [24]) that the plaintiff's injuries were not "caused by, through or in connection with a motor vehicle if, and only if, the injury... is a result of... the driving of the motor vehicle... and... 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" (Motor Accident Insurance Act 1994 (Qld)) because the driving of the unidentified vehicle, was merely the occasion for the throwing of the rock and the two activities were discrete, though contemporaneous, whether or not done by the same person. On the other hand, Hodgson JA doubted (at [41]) that the outcome in Coley v Nominal Defendant [2003] QCA 181; [2004] 1 Qd R 239 would be the same under the MAC Act. In that case a trial judge struck out a pleading alleging that the plaintiff was injured when, while driving along a road someone in an unidentified vehicle threw a Molotov cocktail into his vehicle, setting it alight. The pleading was restored on appeal by majority (McMurdo P and Jerrard JA, Mackenzie J dissenting) "on the basis that it was not impossible that the plaintiff could make out a claim". Hodgson JA thought (at [41]) it was "significant that the plaintiff... alleged fault in the manner of the driving itself, not merely that there was driving so as to enable the Molotov cocktail to be thrown... [so that] there was driving fault alleged". Nevertheless, his Honour doubted "whether it would be sufficiently connected with what actually caused the injury, the throwing of the Molotov cocktail, to satisfy the definition of 'injury' in the MAC Act". Hodgson JA concluded (at [42] - [44]) albeit with some hesitation, that in Hawkins "the throwing of the object [could] properly be considered as a part of or incidental to the harassing driving of the vehicle" so as to fall within the MAC Act because "there was fault in the manner of driving so as to harass the plaintiff, and the throwing of the object was part of and incidental to this harassing driving." Sackville AJA held (at [67]) that "[t]he throwing of the object from the vehicle was an integral part of the harassing and intimidatory course of conduct in which the driver of the vehicle engaged". His Honour distinguished the case from one "where the driver merely drove the vehicle to a point at which a passenger could throw an object (or discharge a firearm) with some degree of accuracy at another person". In his Honour's view (at [68]), the effect of the plurality's reasons in Allianz (at [102]) directed attention to "notions of predominance and immediacy rather than to more removed circumstances... suggest[ing] that the Court must make a judgment as to whether fault in the use of operation [or] a vehicle is a sufficiently predominant and immediate cause of the injury to satisfy the statutory definition." Sackville AJA accepted (at [70]) that Hodgson JA's approach of determining whether the throwing of the object could be considered "to be part of or incidental to the actions of the

14 14 of 17 20/08/2014 7:19 PM driver in harassing" the plaintiff was appropriate. His Honour also concluded (see [69], [71] - [72]) that the definition of "injury" in s 3(1) of the MAC Act was satisfied by applying the plurality's proximate cause approach in Allianz, as: "[T]he actions of the driver of the vehicle and the actions of the passenger were concurrent and interdependent causes of Mr Hawkins being struck by an object thrown from the vehicle. The passenger could not have managed 'successfully' to throw an object at Mr Hawkins without the driver's participation in the course of harassment and intimidation. Nor could the driver have managed to strike Mr Hawkins with the object, as the driver intended, without the passenger's participation in the course of harassment and intimidation." 68 As is apparent from this discussion of Hawkins, in order to fall within s 3A, it is necessary to identify a sufficient connection between the injuries and the driving fault. Driving which is merely the occasion for the infliction of injuries will not suffice even if it is contemporaneous with the activity which inflicts the injury. Conclusion Having regard to what was said by the plurality in Allianz (at [102]) concerning the meaning of "cause" in the statutory context of the MAA Act, I accept the appellant's submission that the primary judge erred in applying the common sense test of causation. However that does not mean the appeal must be upheld. In my view his Honour's conclusion was open on the application of the proximate cause test. In reaching my conclusion, I take into account the factors to which the appellant asserts the primary judge failed to give sufficient weight (see [28](8) above). Those factors seek to emphasise the role of the impact of the Commodore on the driving of the Mitsubishi. In my view his Honour did not fail to give those factors adequate weight. Rather, he concluded (at [14]) that "The driver drove the Commodore in a manner that facilitated the firing of the weapons at the plaintiff". However, his Honour also found (at [32]) that "[t]he firing of the guns in this case did not need the changing of lanes and collision for its occurrence". That finding was not expressly challenged in the notice of appeal, although the tenor of the appellant's submissions, directed as they were to emphasising the fault of the driver of the Commodore most probably should be seen as at least an implicit challenge. Ultimately, I do not think anything turns on this. There can be no doubt that there was "fault" as defined in the MAC Act on the part of the driver of the Commodore. Whether deliberately so as to constitute an assault (because of a pre-conceived plan to destabilise the Mitsubishi) or negligently (getting too close when trying to position the Commodore in a position relative to the Mitsubishi from which the shooters could fire accurately) the driver brought the Commodore into contact with the Mitsubishi. It does not, however, assist the appellant's argument to find that the collision may have constituted an assault. I would also accept that the appellant's injuries satisfy the temporal criterion, that is to say that they were sustained during either the "driving of the Commodore" or the "collision" with the Commodore. In the latter respect Zotti supports the proposition that the collision extended at least until the Mitsubishi came to a stop, albeit that the impact was clearly only a momentary occurrence. However, in my view, the appellant's injuries were not "caused by the fault... of the driver in the use or operation of the Commodore' nor, to put it another way, were his injuries sustained as a consequence of those events: Allianz (at 94]). Rather, the gunfire was the "dominant cause" or that which was "proximate in efficiency" and "the real effective cause"

15 15 of 17 20/08/2014 7:19 PM of his injuries. The "fault" of the driver of the Commodore in colliding with the Mitsubishi was the mere occasion of the injury. That collision, as is apparent from the Police report of the damage to the Mitsubishi and photographs of the bumper bar, caused "minor damage". As soon as Mr Russell realised shots were being fired into the car he accelerated and was able to drive away. The shooting was, in my view, "in a substantial way distinct from or independent of" (cf Hawkins (at [42] per Hodgson JA; at [67], [70] -[71] per Sackville AJA) the driving fault. The primary judge did not err in distinguishing Hawkins As Hodgson JA explained in Hawkins (at [31]) by reference to a drive-by shooting, applying Allianz, "the injury was not relevantly 'caused' by [the Commodore driver's] fault... the fault was not relevantly 'in the use or operation' of the vehicle, and... the injury was not 'a result of the driving' of the vehicle". By "relevantly" I understand his Honour to have meant in the statutory sense. This is so even though, on Hodgson JA's example, there was no contact between the motor vehicle and another vehicle or the victims of the shooting. Here the fault of the driver was twofold: colliding with the Mitsubishi, whether deliberately or negligently, and in being an accessory to the shooting: Hawkins (at [32]). However, for the reasons I have given, the first fault was not causative within the meaning of s 3A. The appellant's injuries were not a result of or caused during either the driving of the Commodore or a collision, or action taken to avoid a collision with the Commodore. The driving may have been a condition of the injuries, but it was not a relevant cause within the meaning of s 3A. The same may be said of the driver's role as an accessory to the shooting. Orders I propose that the appeal be dismissed with costs. GLEESON JA: Section 33(1) of the Motor Accidents Compensation Act 1999 (NSW) (the "MAC Act") provides for the recovery of damages in respect of the death or injury to a person caused by the fault of the owner or driver of an uninsured vehicle in the use or operation of the vehicle on a road in New South Wales. Such claims are to be brought against the Nominal Defendant who is made liable as if it were the owner or driver of the uninsured vehicle. This statutory cause of action is, however, subject to the restriction found in s 3A of the MAC Act (the terms of which are set out at [9] of the reasons of McColl JA). The effect of that restriction is that there must be a close causal connection between the use or operation of the uninsured vehicle and the injury to the person caused by the fault of the owner or driver of that vehicle before a cause of action can arise under the MAC Act. In the present case, the gunshot injuries sustained by the appellant were not the direct result of either the driving of the other uninsured vehicle or the collision between it and the vehicle in which the appellant was travelling. I agree that the appeal must be dismissed with costs for the reasons generally given by McColl JA. I also agree with the additional reasons of Sackville AJA. SACKVILLE AJA: I agree with the orders proposed by McColl JA and generally with her Honour's reasons. I add the following observations. The appellant's pleaded cause of action against the Nominal Defendant arises under s 33 of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act). Section 33 permits an action to be brought against the Nominal Defendant in respect of injury to a person "caused by the fault of the owner or driver of [an uninsured] motor vehicle in the use or operation of the vehicle on a road in New South Wales". Thus the appellant relies on a cause of action created by statute.

16 16 of 17 20/08/2014 7:19 PM The MAC Act restricts the circumstances in which its provisions apply, including the statutory cause of action created by s 33. McColl JA has reproduced (at [9]-[10]) s 3A of the MAC Act, which contains the critical limitations, and the other sections bearing directly on the construction of s 3A. As McColl JA has pointed out (at [40]), the parties accepted that the decision in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568 (Allianz), provides authoritative guidance as to the meaning of s 3A of the MAC Act. In my view they were correct to do so, notwithstanding that there are some differences between the definition of "injury" in s 3(1) of the Motor Accidents Act 1988 (NSW), which was in issue in Allianz, and s 3A of the MAC Act. The following propositions (among others) can be drawn from the plurality judgment (Gummow, Hayne and Heydon JJ) in Allianz: (i) The second branch of s 3A ("and only if the... injury is a result of and is caused... during (a) the driving of the vehicle, or (b) a collision... with the vehicle") was introduced to curtail the scope of the first branch of s 3A ("This Act... applies only in respect of... injury to a person that is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle") (at [88]). (ii) The second branch of s 3A seeks to accommodate two cumulative criteria (at [93]). One is (relevantly) that the injury be sustained during the driving of the vehicle or during a collision with the vehicle. The second is that the injury be sustained as a consequence of the driving of the vehicle or the collision (at [94]). The second criterion requires that the injury be caused by the driving of the vehicle or the collision (at [94]). (iii) The question of causality is not to be determined by the "common sense" test alone (at [96]). The determination of causality has to take into account the legislative policy underlying the statutory compensation scheme, including the objects stated in ss 5(1) and (2) of the MAC Act of keeping premiums affordable by containing "the overall costs of the scheme within reasonable bounds" (at [101]). (iv) The use in the definition of the emphatic and intensive phrase "and only if" directs attention to notions of predominance and immediacy rather than to more removed circumstances (at [102]) The application of these propositions requires the conclusion that the injuries sustained by the appellant were not caused by the driving of the uninsured vehicle or the collision between the appellant's vehicle and the uninsured vehicle. On the findings made by the primary Judge, the appellant sustained gunshot wounds in consequence of a pre-planned enterprise involving at least two passengers in the uninsured vehicle. The uninsured vehicle was used by the perpetrators of the criminal enterprise to facilitate the firing of weapons at the intended target. Neither the driving of the vehicle nor the collision between the two vehicles directly resulted in the injuries sustained by the appellant. In these circumstances, once attention is paid to "notions of predominance and immediacy", the cause of the appellant's injuries was not the driving of the uninsured vehicle or the collision between the two vehicles. It was the implementation of the pre-existing plan to shoot the appellant. The use of the uninsured vehicle was incidental to the implementation of that plan. The decision in Nominal Defendant v Hawkins [2011] NSWCA 93 (Hawkins) is distinguishable from the present case. In Hawkins, the plaintiff was riding his bicycle when

17 17 of 17 20/08/2014 7:19 PM he was harassed by the driver of an unidentified motor vehicle. The plaintiff was hit on the shoulder by an object thrown from the motor vehicle. The throwing of the object at the plaintiff was found (at [67]) to be "an integral part of the harassing and intimidatory course of conduct in which the driver of the vehicle engaged". The harassment of the plaintiff in Hawkins was not part of a pre-determined plan in which the motor vehicle played an incidental part in the infliction of harm. The plaintiff was apparently randomly targeted by the occupants of the motor vehicle because he happened to be riding his bicycle on the roadway near them. In other words, he was targeted because he was a fellow road user. Moreover the plaintiff's injuries were not directly inflicted by the object thrown at him. He sustained his injuries when he lost control of the bicycle as he attempted to take evasive action to escape the harassment. 86 Having regard to the manner in which the appeal was conducted. I do not think that there is any occasion to consider the possible relationship between s 3A of the MAC Act and s 5D of the Civil Liability Act 2002 (NSW). ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Last updated 6 August 2014