In Jackson v Bishop and Anor [2013] QDC 279, Kingham DCJ considered the liability of a CTP Insurer, AAI Limited, for Post Traumatic Stress Disorder (‘PTSD’) suffered by a claimant in circumstances where the insured driver:

  • verbally abused and threatened the claimant;
  • intentionally drove his vehicle into the claimant’s vehicle, and
  • after the collision, smashed the claimant’s windscreen with a brick.

How could AAI Limited be held liable for the PTSD?

Her Honour acknowledged that the scope of the liability of AAI Limited was determined by s 5 Motor Accident Insurance Act 1994 (Qld) (‘the Act’), which provides that CTP insurers are only liable for injuries caused by, through or in connection with a motor vehicle if, and only if, the injury is the result of (amongst other things):

  • the driving of the motor vehicle; or
  • a collision or action taken to avoid a collision with the motor vehicle.

AAI Limited properly conceded that it would be liable for PTSD suffered as a result of the insured driver threatening the claimant by driving the vehicle (“from the time he commenced to rev the engine”) and colliding with the claimant’s vehicle. The contentious issue was whether the claimant’s PTSD was not caused by the driving of the vehicle or the collision, but by the aggressive conduct of the insured driver (regardless of the use of the motor vehicle).

How could AAI Limited have avoided liability for the PTSD?

To avoid liability for the PTSD suffered by the claimant, AAI Limited needed to prove the injury was outside the scope of s 5 Motor Accident Insurance Act 1994 (Qld). That is, it needed to prove the PTSD was not caused by the driving of the insured’s motor vehicle or the collision between the vehicle and the claimant’s vehicle.

To do this, AAI Limited endeavoured to prove that the PTSD was the result of the threatening behavior of the insured driver without reference to the motor vehicle (including the verbal abuse and smashing the claimant’s windscreen with a brick) and not the driving of the vehicle or the collision.

Cause vs Causes

When addressing the possibility of multiple causes, Kingham DCJ applied the principles of causation espoused in March v Stramare (1990-1991) 171 CLR 506, including that “concurrent or successive tortious acts may each amount to a cause of the injuries sustained”.

Consequently, while the verbal threats that occurred before the driving of the vehicle and the smashing of the windscreen which occurred after the driving of the vehicle may have been a cause of the claimant’s PTSD, this did not preclude a finding that the driving of the vehicle and its collision with the claimant’s vehicle was an additional cause of his PTSD.

Did the driving and/or collision cause the PTSD?

The claimant testified that he did not feel threatened when the insured driver first started to yell at him and threaten him, however he began to feel nervous. It was when the insured driver began revving his engine that the claimant felt extremely scared. The claimant’s fear for his life continued when the insured’s vehicle collided with his, and as the insured driver smashed his windscreen with a brick.

Dr Likely, a psychiatrist engaged by the claimant, gave evidence that it was “artificial to dissect the physical components of the stressor to which the claimant was exposed”. That is, it is artificial to apportion the cause of any PTSD to one or more particular events experienced by the claimant. Dr Oelrichs, psychiatrist engaged by AAI Limited, “agreed that it would be artificial to disentangle the multiple causes”.

Applying the principles above where multiple events may be found to cause an injury, Kingham DCJ held that the claimant’s injuries were caused or materially contributed to by the actions of the insured driver in revving the car and causing the collision (albeit in the context of other threatening conduct). As the injury was the result of the driving of the motor vehicle and a collision with the motor vehicle, AAI Limited was held liable to compensate the claimant for the PTSD suffered.

Conclusion

Where motor vehicles are used in the execution of threats of harm against victims of assault, CTP insurers may be held liable for PTSD suffered by the victim. This liability arises despite the fact the use of the motor vehicle may only be one component of a larger course of aggressive conduct that does not involve the vehicle.

However, while not explicitly addressed in this matter, for a CTP Insurer to be liable, the threat of harm must be a wrongful act in respect of the motor vehicle (for example, driving the vehicle in an unsafe manner). Consequently, as seen in Coley v Nominal Defendant [2003] QCA 181, where vehicles are simply used as a means to place a wrongdoer in a position to commit a wrongful act (in that case, to throw a Molotov cocktail into another passing vehicle), the CTP insurer may not be liable for injuries caused by the wrongful act.

Finally, it is noted that where a CTP insurer is found liable to pay compensation for injuries, and the insured driver intended to harm the Claimant or another person when those injuries were sustained, the CTP insurer may recover its reasonable costs from the insured driver pursuant to s 58 Motor Accident Insurance Act 1994 (Qld). However, in practice, pursuing this right of recourse may be a hollow victory where the insured driver does not have the means to satisfy the debt.