MAIA: throwing a bottle & by through & connection with a MV

Hornby v Opbroek & Anor [2015] QDC 101

Pursuant to r 483 of the Uniform Civil Procedure Rules 1999 (“UCPR”), a declaration was sought that the Motor Accident Insurance Act 1994 (“MAIA”) applied to circumstances set out in the Agreed Facts and pleadings. The facts were the plaintiff was injured when hit by broken glass. It was stated 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”) and that the bottle smashed against the Holden’s rear door frame.

LEGISLATION CITED: Civil Liability Act 2003

Uniform Civil Procedure Rules 1999, r 483, r 483(1)

Motor Accident Insurance Act 1994s 5s 5(1)s 5(1)(a)s 5(1)(a)(i)s 5(1)(b)

Summary Offences Act 2005s 26(1)(a)

CASES CITED: Allianz Australia Insurance Ltd v GSF Australia Pty Ltd & Anor [2005] HCA 26(2005) 221 CLR 568

Bayon v Bayon [2014] NSWCA 434

Coley v Nominal Defendant [2003] QCA 181[2004] 1 Qd R 239

Lawes v Nominal Defendant [2007] QCA 367[2008] 1 Qd R 369

Leach v Nominal Defendant [2014] NSWCA 257

Mani v Nominal Defendant [2002] QSC 152[2003] 1 Qd R 248

Raschke v Suncorp Metway Insurance Limited [2005] QCA 161[2005] 2 Qd R 549

Dorney QC DCJ

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

David Cormack – Brisbane Barrister & Mediator

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