A cyclist was riding on a footpath, having moved from the road to avoid the intimidating driving and harassing conduct from passengers of an approaching vehicle. The vehicle was travelling closely behind the cyclist while the passengers yelled, beeped and played loud music. Ultimately, one of the passengers threw an object at the cyclist and the vehicle then drove away.
The cyclist lost control of the bike and collided with a piece of metal lying across the footpath. The front tyre of the bike blew out, causing the cyclist to strike a power pole. He suffered serious injuries.
The driver of the vehicle could not be identified so the question was whether the Nominal Defendant was liable for the cyclist's injuries. The answer to that question depended on whether the injury was caused by the 'fault' of the driver of the motor vehicle in 'the use or operation of the vehicle' as required by the Motor Accidents Compensation Act (NSW) (the Act).
The trial judge found that the driver had driven so closely to the cyclist that the injury was caused by the fault of the driver as required by the Act.
After considering numerous authorities the NSW Court of Appeal found, 'with some hesitation', that the throwing of the object was 'part of or incidental to the harassing driving' of the vehicle such that it arose out of the use or operation of the vehicle. The driving 'fault' in this case was the intentional driving of the vehicle in such a way as to harass the cyclist.
Nominal Defendant v Hawkins  NSWCA 93
This case demonstrates that Courts are willing to give a broad interpretation to what constitutes the 'use or operation' of a vehicle for the purpose of imposing liability, particularly where there is obvious wrongdoing on the part of the driver.