Consideration
39Section 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).
40Both 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.
41This 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]).
42The MAA Act definition of "injury" was on all fours with the definition of "injury" in the MAC Act until 2006. 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).
43In 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.
44McHugh 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".
45McHugh 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 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])
46McHugh 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."
47McHugh 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)
48The 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).
49Applying 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, scope and purpose of the 1995 Act."
See also Callinan J (at [131]).
50The 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])).
51In 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.
52The 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]).
53In 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 ¶61-643 ("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.
54As 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'".
55In Allianz (at [102]) the plurality referred to Australian Casualty Co Limited v Federico (at 534 -535). 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:
" ... 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)
56GLG, 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".
57In 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.
58Spigelman 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".
59Hodgson 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".
60The 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.
61In 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.
62In Ross v Transport Accident Commission [2000] VSC 112; (2000) 30 MVR 521 a car that 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".
63For 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.
64On 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".
65Hodgson 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."
66Sackville 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."
67Sackville 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 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."
68As 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.