Case note: Hornby v Opbroek & Anor [2015] QDC 101

Background

Sarah Hornby (Plaintiff) brought an application for a declaration that her claim for personal injuries was regulated by the Motor Accident Insurance Act 1994 (Qld) (MAIA).  The Plaintiff suffered injuries to her face and upper body when Reece Opbroek (First Defendant), threw a beer bottle at the vehicle in which she was a passenger (the Holden).  The glass struck the rear door of the Holden and smashed, then struck the Plaintiff.  When the First Defendant threw the bottle, he was driving a Mazda, with one hand on the steering wheel.

Issue

The issues for determination were whether the injuries, for the purposes of section 5 of the MAIA:

  1. resulted from the driving of the motor vehicle; and
  2. were ’caused by, through or in connection with a motor vehicle’.

Pleadings

In the Statement of Claim the Plaintiff alleged the First Defendant was negligent in the following respects:

  1. failing to exercise proper control over the Mazda to avoid injury to the Plaintiff;
  2. failing to avoid an accident;
  3. failed to drive the Mazda for lawful purposes;
  4. driving the Mazda so that it could be used to position himself to throw a bottle at the Holden; and
  5. positioning 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 (Qld).

Submissions

The Second Defendant, AAI Limited, made submissions as follows:

  • there was nothing relating to the driving of the vehicle, that would trigger sub-sections 5(1)(a) and (b) of the MAIA.  There needed to be “some wrongful act with respect to the driving, not simply the release of the bottle”.
  • the allegations of negligence pleaded by the Plaintiff did not accord with the Statement of Agreed Facts.
  • there was no factual basis upon which the Court could make any finding, either directly or inferentially, that would identify some relevant fault on the driver.

The Plaintiff made submissions as follows:

  • the injury was ’caused partly by a wrongful act in respect of the control of’ the Mazda.
  • the driving was fundamental to the injury because the First Defendant 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.
  • the ‘manner’ of driving was a ‘wrongful act’ in that the ‘controlling’  of the vehicle was to ‘effect a tortious act’ which ‘led’ to injury.

There was no real contest that the bottle was thrown ‘by, through or in connection with’ the Mazda.

Findings

Dorney QC DCJ found that:

  1. the injuries were a ‘result’ of the driving of the motor vehicle.
  2. there was no link 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 was set out in the agreed facts.

The Court dismissed the Plaintiff’s application.

Considerations

The case serves as a reminder for parties to consider whether the legislation that a claim is brought under, does in fact apply to that claim.

In this case, the agreed facts failed to establish a wrongful act and negligence relating to the driving of the vehicle, so the Plaintiff’s claim was excluded by the MAIA.