Appellant v Respondent

1 On 27 December 2019, Philip Bramich was cycling in a group of eight riders when his bicycle hit an object which became lodged between the wheel and frame of the bicycle propelling him over the handlebars (the accident). The object on the road that caused the accident was a D-shackle. He suffered significant injuries including a fractured vertebra in his cervical spine. A claim was lodged on his behalf for no fault compensation with the Transport Accident Commission (the Commission). That claim was rejected on the basis that the circumstances in which the accident occurred were not within the statutory definition of a 'transport accident'. Mr Bramich lodged a review of this decision with the Victorian Civil and Administrative Tribunal (the Tribunal or VCAT). A hearing was conducted on 26 October 2020 before Member Tang. The Tribunal affirmed the decision of the Commission, delivering reasons (the Reasons) and making orders on 19 November 2020.

2 The Commission had rejected the claim on the basis that 'the D-shackle may have originally come from a motor vehicle before it came to rest on the roadside for an unknown period of time, but there is no direct connection between the incident and the direct driving of a motor vehicle or a feature of driving a motor vehicle that caused the object to be on the road'.[1]

3 To succeed, Mr Bramich (the appellant) needed to persuade the Tribunal that his injuries were 'directly caused by the driving of a motor vehicle'. His case before the Tribunal was that the D-shackle was dislodged by the movement of the vehicle being driven, causing it to fall onto the roadway.

4 The appellant said that the evidence before VCAT was uncontested. There was no contest as to the direct facts found by the Tribunal. In the absence of any direct evidence of how the D-shackle came to be on the road, the Tribunal was required to engage in inferential reasoning. The contest before the Tribunal was one as to what inference could or should be drawn from those uncontested facts.

5 The Tribunal did draw an inference that the D-shackle came from a vehicle but did not go further. On the facts, including the inference that it was prepared to draw, the Tribunal was not satisfied that the accident was 'directly caused by the driving of a motor vehicle', and therefore not a 'transport accident'.

6 The Tribunal accepted the factual evidence contained in witness statements of Mr Bramich and three others riding with him; Mr Roberts, Mr Medhurst and Mr Hasouras. It also accepted that Mr McDonald, a consulting civil engineer with lengthy experience in collision investigation, including specialist qualifications in bicycle collision investigation, had the relevant qualifications to express the opinions contained in his report. None of the witnesses were required for cross-examination. In addition, the Tribunal had documentary evidence, being the claim for compensation, a series of photos taken immediately after the accident, and a map and aerial photo of the relevant stretch of road.

7 The findings as to the circumstances of the accident are based on the witness statements and set out at paragraph 29 of the Reasons. They are:

• On 27 December 2018, Mr Bramich was part of a group of around eight riders who were doing a group ride to Broadford. He had done the same ride on the previous day.
• The group had been riding for around two to three hours prior to the Accident.
• The weather and conditions at the time were 'perfect'.
• As it was around Christmas, there were 'lots of boats/trucks going to Lake Eppalock that use[d] this section of road.
• The group was travelling, two abreast, along Epping-Kilmore Road, Wallan at a cruising speed of approximately 30 kilometres per hour. That road is mostly flat, veering (insignificantly) to the right.
• Mr Bramich was fifth in place in the group, to the left of Mr Medhurst and immediately in front of Mr Hasouras. Mr Roberts was at the front of the group, next to Mr Morgan Smith.
• The group were riding on the shoulder of the road, to the inside of the outer white line.
• While debris from vehicles, including bottles and shackles, are regularly observed by the group, nobody noticed everything on the road immediately before the Accident. In this regard, Mr Roberts, explained that the leader of the group (i.e. the rider at the front) has a duty of care to the rest of the group to scan the road for hazards including debris. Similarly, Mr Hasouras observed that where an obvious hazard is identified, the riders use hand gestures to signal each other.
• As a result of hitting an object, Mr Bramich was suddenly and violently propelled over his handlebars, 'as if he had hit a brick wall'.
• After the Accident, the other riders observed a 'D-shackle' lodged between the wheel and frame of Mr Bramich's bicycle.

8 There were photographs of the D-shackle in evidence. The photograph below shows the D-shackle.

9 Mr McDonald's report said a D-shackle, also known as a bow shackle, is a load bearing metal link closed with a fastening pin or bolt. Common uses are said to be: rigging systems, securing loads on heavy vehicles, attaching trailer safety chains to vehicles and connecting components in 4WD recovery systems.

10 He indicated that the display on the D-shackle in question, 'WLL 1.5T', indicates a Working Load Limit of 1.5 Tonnes. Mr McDonald said typically he would expect a shackle of this rating to be used on towing safety chains, lifting slings or to secure loads to heavy vehicles.

11 Mr McDonald said a D-shackle would usually have a fastening pin - a rod that passed through the two apertures at either end of the U shaped metal. When used in temporary applications, a fastening pin would be secured finger tight. For longer application, it can be tightened with pliers and wire or other ties to secure the bolt to the main part of the shackle.

12 The D-shackle in the accident did not have a fastening pin and a strand of metal is observed passing through one of the apertures. The nature of that metal is not apparent, and Mr McDonald surmises it could be a strand of wire or another similar feature such as a stripped bolt thread. He said the D-shackle showed some abrasions consistent with having slid or dragged across a road surface.

13 Implicit in the Tribunal's recitation of this information is its acceptance of those matters.

14 From these facts as found, the Tribunal was invited to draw an inference as to how the D-shackle came to be on the roadway.

15 The Tribunal observed that the onus of proof lay with the appellant who was required to prove his entitlement to compensation on the balance of probabilities.[2] The Tribunal observed that in conducting a review of the decision it considers the matter afresh, making the correct or preferable decision. In coming to that decision the Tribunal will decide the facts in issue, and may, in an appropriate case draw inferences as to a fact.[3]

16 The Tribunal referred to and extracted a summary of the correct approach to take in relation to drawing inferences, citing Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd.[4] Both parties relied on this passage as governing the principles to be applied by the Tribunal when invited to draw inferences:

The principles, relating to the drawing of inferences in civil cases, are well established. First, any inference must be based on facts established by admissible evidence. Secondly, the process of reasoning must constitute a valid inference, as distinct from speculation or guesswork. Thirdly, and importantly, where the inference is drawn in favour of the party which bears the burden of proof in the case, the conclusion must be 'the more probable inference' from those facts. In other words, the inference drawn by the judge must be reasonably considered to have a greater degree of likelihood than any competing inference. Fourthly, in determining whether an inference is to be drawn as a matter of probability, the tribunal of fact is not required to consider each primary fact, established by the evidence, in isolation. Rather, the Court considers the totality of those facts together, giving effect to their united and combined force.[5]

17 The appellant urged the Tribunal that there is only one reasonable inference that can be drawn from the presence of the D-shackle on the roadway and that is that it fell from a moving vehicle.[6] The appellant's case was also supported by the conclusions of Mr McDonald.

18 Mr McDonald was asked to provide a number of opinions about the mechanism by which the D-shackle came to be on the roadway, including:

• Whether, on the balance of probabilities, the D shackle came to be on the road surface as a direct result of the driving of a vehicle or as a result of a feature of driving a motor vehicle?
• The probable inferences that can be reasonably made for a D shackle being on the road.[7]

19 The opinions given by Mr McDonald in response were:

6.7 Given D-shackles are used to secure loads to vehicles, I consider the most likely reason for a D-shackle to be on the road is that it fell from a moving vehicle. The shackle may have been poorly placed in or on the vehicle so that motion of the vehicle caused it to fall onto the roadway. Alternatively, the shackle may have been loosely fitted to some form of load restraint (such as a safety chain or heavy vehicle load restraint) so that vibration allowed it to loosen and ultimately come apart thereby allowing it to fall onto the roadway.

6.8 On the balance of probabilities, I consider it more likely than not that the D-shackle came to be lying on the road because of the use of a motor vehicle (registrable vehicle) on the road. It is likely that the D-shackle was not adequately secured and vibration from a moving vehicle caused the D-shackle to fall from the vehicle.[8]

20 In addition, the Tribunal also had before it some observations of Mr Medhurst whose witness statement described regularly observing 'debris on the road deposited from vehicles'. His statement said he would often observe 'bottles and shackles on the road'. He said his belief was that the D-shackle 'likely was on the road because it had rattled loose'.

21 Furthermore, the Tribunal was referred to the decision of Monahan v TAC[9] in which a cyclist was seriously injured riding along the Great Ocean Road when she rode over a metal strap on the road which became caught in the front wheel and caused her to be flung from her bike. The Senior Member in that case inferred that the strap fell from a moving vehicle, partly due to the propulsion of the vehicle and partly due to the effect of gravity, and on the facts as found was satisfied that Ms Monahan was injured as a result of a transport accident. The logic and reasoning used there was commended as persuasive because of its similarity to the present facts.

22 The Tribunal first considered cases concerning the construction of the definition of a 'transport accident' and how it has changed over time. I will return to that discussion later as it is relevant for some of the grounds of appeal. The Tribunal posed for itself and answered the following questions:

Did the D-shackle come from a motor car and did the propulsion or movement of a motor car cause the D-shackle to be on the road?

40 It seems likely that the D-shackle came from a motor-vehicle, having regard to the following facts and matters:

• The D-shackle was on the road before the Accident.

• The expert evidence of Mr McDonald is that the relevant type of D-shackle is used for towing safety chains, lifting slings and to secure loads to heavy vehicles.

• There were trucks and vehicles carrying boats on the road on the day of the Accident.

• It is inherently unlikely that a D-shackle would have ended up on a country road if not transported 'in or on' a vehicle or 'attached to some form of load restraint'. For example, it is unlikely to have been left there by a pedestrian or another cyclist.

41 As such, it can readily be inferred that a motor car of some description was the source of the D-shackle. However, it is somewhat more difficult to draw a confident conclusion about whether it was the propulsion or movement of that motor car which caused the D-shackle to end up on the road.

23 The opinion of Mr McDonald was repeated along with the appellant's submission that this opinion was not conjecture but the only reasonable inference available and there was no equally persuasive version of events that could explain the presence of the

D-shackle on the road. The Commission submitted that Mr McDonald's opinion conveyed two possible mechanisms; one being that the D-shackle was poorly placed such that motion caused it to fall, and the other being that it was loosely fitted such that the bolt was loosened and the D-shackle came apart and fell. The submission contended that both are equally possible and therefore no more probable inference can be drawn from the conclusion of Mr McDonald.

51 Having inferred that the D-shackle came from a motor car, I accept that a possible reason that it came to lie on the road is that it fell from the car as a result of the propulsion or movement of that car.

52 However, in my view there is another possibility, being that someone from the motor car in question had deliberately thrown it from the car, or left it by the roadside after stopping the car. This possibility is not considered by Mr McDonald in his report, but could arguably be seen to be consistent with the absence of a fastening pin. That is, a D-shackle without a fastening pin could not be used to safely secure any load and would no longer serve a useful purpose, which might have led to it being discarded.

53 In circumstances where there is no direct evidence of how the D-shackle came to be on the road, and in light of the very limited facts available, it is difficult to say that either possibility is the 'more probable inference' and so I cannot be satisfied that the inference contended for by Mr Bramich should be drawn.

25 The Tribunal next considered the prospect contrary to this conclusion, that if indeed the D-shackle fell from a moving vehicle while it was being driven, whether that fact would be sufficient to bring the circumstances of the accident within the definition of a transport accident. It concluded that the driving of a motor car did not directly cause the accident because it was necessary to identify something more than 'the mere act of driving' and the facts (including the inference that it fell from a moving vehicle, if that inference was drawn) did not permit such a conclusion.[10]

26 The appellant submitted that Mr McDonald's explanations in 6.7 of his report are 'one and the same'; both being a fall of an object brought about by propulsion of the vehicle. Therefore, if an inference is drawn that the D-shackle fell from a moving vehicle, that was sufficient to bring the circumstances within the definition. The Member returned to the cases that established he must be satisfied of a:

... temporal or other connection between the driving of a car and the incident, which enables the identification of the driving as a sufficiently proximate and immediate cause of the incident concerned.[11]

27 The Member accepted that the connection need not be temporal and discussed Monahan together with the case of Burton v Transport Accident Commission[12], also decided at VCAT. Burton concluded that although a mechanical failure of the coolant system had occurred while the vehicle was being driven, a person who later slipped on coolant fluid on the car park floor, was not injured in a transport accident. The Tribunal concluded that something more than a 'mere act of driving' as described in Burton was compelling.[13]

28 In considering what the definition of transport accident in s 3(1) of the Transport Accident Act 1986 (Vic) (the Act) requires by way of causal link the Tribunal made reference to s 3(1A), which has the effect of deeming certain accidents involving bicycles to be transport accidents. The Tribunal said:

66 I have noted the amendments to section 3 (1A) of the TA Act discussed at [12], which reveal a legislative intention only to provide coverage under the statutory scheme to a limited range of incidents involving bicycles. Presumably, the basis for generally excluding bicycle accidents from the scheme is that cyclists do not (in that capacity) pay registration fees which fund the scheme.

67 In those circumstances, it would be an unlikely and unintended result if the definition of 'transport accident':

a) included any incident involving a cyclist being injured after hitting any object which at some point had fallen from a moving car, irrespective of how long it may have been there and in the absence of other circumstances connecting the driving of the car to the incident; but

b) only included an incident involving a cyclist hitting a parked motor car where the injured cyclist was travelling to or from work, even if the car had only been parked for a matter of minutes (as in Sheppard).

68 In the present case, if the D-shackle is accepted as having fallen onto the road from a moving car, there would seem to me to be two possibilities as to the location of the D-shackle before it fell. It could have been:

• In, or on, the motor car, like the strap in Monahan; or
• Attached to a load restraint and the motor car, i.e. to secure a boat or other heavy object.

30 In those circumstances, the Tribunal accepted that a cause of the D-shackle coming to fall from the car was the motion of the car, but said it was not readily apparent that it was 'directly caused by the driving' of that car, given the lack of information about speed or the manner of driving, or how (or even if) the D-shackle was secured. The Member continued to discuss what might be 'the proximate and immediate cause'. This was in the context of possibilities that the D-shackle was not properly tightened if it had a fastening pin or if there was some other reason for the fastening pin to come loose. In relation to both possibilities, the Tribunal said it may have involved negligence on the part of a driver of the car in relation to an act that necessarily precedes the driving and so the proximate and immediate cause would be the negligent (pre-driving) act rather than the driving itself.

31 The Tribunal said the answers to these matters would involve speculation or guesswork and no inference could be drawn about the necessary feature of driving. It concluded:

While I accept the Accident would not have occurred 'but for' the D-shackle being in or attached to a motor car being driven down the Epping-Kilmore Road at some time before the Accident, I am not satisfied - on the evidence before me - that the Accident was directly caused by the driving of the motor vehicle.[15]

32 Mr Bramich seeks leave to appeal pursuant to s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act).

33 An appeal to this Court under that provision is restricted to questions of law. The Notice of Appeal identifies six questions of law. They are:

• Error in the inferences to be drawn from the uncontested evidence (Ground 1);
• Failure to afford Mr Bramich natural justice (Ground 2);
• A failure to apply a decision of VCAT, Monahan v TAC,[16] a decision of (then) Member Proctor on the inference to be drawn from uncontested evidence (Ground 3);
• Error in its conclusions, found at [66] and [67], about the legislative intent with respect to bicycle accidents behind the amendments inserting provision s 3(1A) into the Act, and its conclusion that it would be an unlikely and unintended consequence of that provision if it were to embrace the circumstances of this accident (Grounds 4 and 5);
• Failure to demonstrate an adequate path of reasoning in reaching particular conclusions (Ground 6).

34 The Commission disputed that any of the grounds amounted to a question of law contending complaints are directed at the Tribunal's fact-finding.

35 It is convenient to deal with the first three grounds together. As to ground 3, the appellant clarified that he did not argue that the Tribunal was bound to follow Monahan, simply that the similarities made it persuasive.[17] The natural justice ground was said to be a failure by the Tribunal to alert the appellant to various possibilities canvassed in the Reasons, including the D-shackle being thrown from the car and by the Commission advancing a case inconsistent with the evidence without putting that case to Mr McDonald, as it did not seek to cross-examine him.[18]

36 The fact that Mr McDonald's opinion was unchallenged was relied on by the appellant in a number of ways. First, it was submitted that it was expert evidence that was unchallenged and so it ought not be rejected.[19] Second, it was submitted that there had been a denial of procedural fairness because possibilities identified by the Tribunal, and not considered by Mr McDonald, had not been put to him in accordance with the rule in Browne v Dunn or put to the appellant's counsel in submissions.[20] Third, it was said that in light of the opinions expressed by him, there was no basis for the submissions of the Commission that 'vibration is not a feature of driving', that there was 'no evidence to support [Mr McDonald's] finding' or that 'any inference is a matter of conjecture' because there was no admissible evidence in support of those submissions.

37 The appellant's argument is that, having not disputed the conclusion of Mr McDonald, the Tribunal was bound to draw the inference that the D-shackle had fallen from a moving vehicle. It was bound to do so because that was the 'only evidence before VCAT as to the likely cause of the accident on the balance of probabilities'.[21]

38 The simple answer to these grounds of appeal lies in the nature of the evidence before the Tribunal. Mr McDonald could not and did not make a factual finding as to how the D-shackle came to be on the road. His opinion was one based upon known facts, including his expert knowledge as to the uses of this type of D-shackle. He answers a series of questions applying his expert knowledge. His conclusions, particularly at 6.7 and 6.8, are not factual findings but opinions arrived at by applying his expertise, as well as ordinary human experience, to the available facts. The relevant question for the Tribunal was not whether the presence of the D-shackle on the road was the likely cause of the accident, but how the D-shackle came to be on the road. To that extent, Mr McDonald in arriving at his opinion must rely on inferential reasoning.

39 I accept the Commission's submission that the contention that Mr McDonald's opinion evidence was the only evidence about the likely cause, confuses the primary facts with the inferences to be drawn from them. It remained for the Tribunal to decide whether any inference could be drawn and, given that the onus rested with the appellant, whether 'the more probable inference' could be drawn from those facts.

40 To the extent that the opinion evidence was not challenged, this did not mean that the Tribunal was bound to accept it.[22] There is in my view no inconsistency between the Tribunal's acceptance of Mr McDonald's expertise in collision investigation and construction, and the refusal to draw the inference that was reached by him. The drawing of an inference is 'an exercise of the ordinary power of human reasoning in the light of human experience; it is not affected directly by any rule of law'.[23] The Tribunal expressly noted the evidence of lay opinion, expressed by Mr Medhurst and Mr Hasouras, in conjunction with the expertise of Mr McDonald regarding the use of equipment such as D-shackles; observing that 'while Mr McDonald's opinion is relevant, it is ultimately for the Tribunal to determine the facts, including any inferences to be drawn'.[24] That statement is orthodox and correct.

41 To the extent that the Commission's case went beyond that submission, to matters not contained in Mr McDonald's report, I do not accept that it was required to put those matters to the expert. The Commission based those submissions on the primary evidence before the Tribunal. Mr McDonald was not provided, as far as I can see, with statements made and relied on by the appellant that shackles were observed as debris along the road. His report makes no reference to those matters. The submission that there were insufficient facts and a number of possibilities such that the drawing of a more probable inference was impermissibly speculative was again a matter for the Tribunal. Mr McDonald made no finding, he expressed his opinion on the assumed facts he was given, that the most likely reason for the D-shackle to be on the road 'is that it fell from a moving vehicle'. The Commission disputed this but did not put forward any alternative explanation. It did not need to do so. It's case rested on the plaintiff not having discharged his onus. The Tribunal did raise the possibility of the D-shackle being discarded with the appellant's counsel during closing submissions.[25] Counsel contended that the possibility that the D-shackle was thrown away by somebody could not logically be inferred from the known facts.[26]

42 The Commission's case was that Mr McDonald's opinion identified two explanations for the presence of the D-shackle on the road; one, the D-shackle was 'poorly placed in or on the vehicle' and the other that it was 'loosely fitted ... so that vibration allowed it to loosen and ultimately come apart'. Both being equally possible on Mr McDonald's evidence, a more probable inference could not be drawn. The appellant's case was that both explanations provided by Mr McDonald involved a moving vehicle, so drawing an inference that it came from a moving vehicle is consistent with either scenario.

43 The Commission then made a submission to the Tribunal that 'vibration was not a feature of driving'. One possible outcome was that the Tribunal might accept that the

D-shackle came to be on the road because it probably fell from a moving vehicle as contemplated by Mr McDonald's report. If so, the submission as to vibration went to the question of whether the definition of 'transport accident' was met. It addressed whether the inference drawn by Mr McDonald was sufficient to say driving directly caused the accident. That was a question for the Tribunal.

44 For these reasons, I do not accept that there was any denial of natural justice to the appellant in the way in which the Tribunal used Mr McDonald's evidence.

45 Apart from the natural justice grounds, the plaintiff argues that the Tribunal erred because it concluded that falling from a moving car was a possible reason for it to be on the road, as set out above at [51] of the Reasons, when the opinion evidence established it was the more probable reason.[27] Framed in this way, the complaint is that the Tribunal failed to elevate the scenario consistent with Mr McDonald's opinion from the possible to the more probable. If that is so it is a complaint about the fact-finding of the Tribunal and generally not an error of law.

46 As the drawing of an inference is part of the fact-finding of the Tribunal, the drawing of an inference will only amount to an error of law where there is no probative evidence to support it. In Gunston v Lawley &Ors,[28] Byrne J dealt with an appeal from orders made in the domestic building list at VCAT by owners against the builder and others which attacked a number of the factual findings on the basis that 'It was not open on the evidence for the Tribunal to have concluded that....". The judge said:

These grounds appear to have been drawn with the decision of Batt J in Roads Corporation v Dacakis in mind. There, after a careful analysis of the cases, his Honour concluded that a finding of fact may be impugned as an error of law only where there is no probative evidence to support it. It is not sufficient for an appellant to show only that a finding is not reasonably open on the evidence....In the Roads Corporation case, Batt J also concluded that, where an appellant under a regime such as the present, which permits appeal upon error of law, attacks an inference drawn rather than a fact found, this is permissible only where there is no basis for the inference. Since inference is a logical process which draws a conclusion from other facts or conclusions, the inference will amount to an error of law only where it is not reasonably open on the facts.[29]

47 Therefore, to establish an error of law the plaintiff must demonstrate that the Tribunal was bound to draw the inference that the D-shackle fell from a moving vehicle and that competing inferences were not reasonably open on the facts. It is therefore necessary to look closely at the inferences that were identified and the Tribunal's conclusion reached.

48 The Tribunal accepted that the source of the D-shackle was most likely a vehicle and was prepared to draw this inference as the more probable.[30] That was clearly based upon the admissible evidence including the location of the road, the nature of traffic along that road (much of which towed trailers and boats), Mr McDonald's connection of the use of D-shackles in towing and boating activities, and the unlikely prospect of it being left there by a pedestrian or cyclist.

49 The fundamental reason that the Tribunal was not persuaded to take the extra step and infer that the vehicle was moving when the D-shackle fell was the absence of a fastening pin. This particular fact opened up the possibility that it had been deliberately discarded as canvassed at [52] of the Reasons. Whether the more probable inference is that an object has fallen from a moving vehicle and fallen due to the movement of the vehicle is heavily fact dependent, and is a fact-finding exercise where reasonable minds may differ. Unlike Monahan, the Tribunal was persuaded in light of the very limited known facts, that their combined weight gave rise to at least two possibilities - a fall from the vehicle or being discarded - and was not satisfied that one inference was more probable than the other.

50 The purpose of raising other possibilities which might arise on the known facts was to demonstrate that more than one logical inference might be open. It did not draw an impermissibly speculative inference that a discarded D-shackle was thrown from a car or discarded by the side of the road. It did so to make the point that with more than one inference open, it did not have a basis to conclude that one was more probable than the other. Having identified another inference available on the evidence, in particular that of debris and the missing fastening pin, the Tribunal was not bound to draw the contended inference. No error of law arises.

The approach to defining a transport accident (Grounds 4 and 5)

51 The appellant's grounds 4 and 5 identify error by the Tribunal in 'findings' regarding s 3(1A). The two relevant paragraphs were part of the Tribunal's discussion on the question 'Did the driving of a motor car 'directly cause' the Accident?'

52 The definition of a transport accident is contained within s 3(1) of the Act. It presently states:

'transport accident' means an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram;

53 The definition of a 'transport accident' has narrowed over time. The original definition was of 'an incident caused by or arising out of the use of a motor car'. Amendments in 1989 changed the definition so that an incident was required to be 'directly caused by or directly arising out of the driving of a motor car'. Further amendments in 1994 confined the definition to incidents 'directly caused by the driving of a motor car', removing incidents arising out of the driving.

54 The Tribunal traced this legislative history and said it was necessary to ask what is meant by 'driving'. It referred to the observation of Kaye J in Koutroulis v Transport Accident Commission.[31] Mrs Koutroulis was injured when a bus driver unintentionally closed the front door on a passenger who was in the process of alighting from the bus. The question was whether this was an incident that directly arose from the driving of the bus. The Tribunal had found the driver's actions were 'part of the wider purpose of readying the bus to move off' and was therefore driving. Kaye J said the statements made in the authorities about 'driving' were not intended to constitute exhaustive definitions of the word. After canvassing those earlier authorities, he said:

The core meaning of 'driving' consists of the propulsion or movement of a vehicle. Thus the driving of a vehicle includes those steps undertaken by the driver which concern the propulsion or movement of the vehicle. Further, the decision of the Full Court in relation to Ms Bizewski, in Transport Accident Commission v Treloar, demonstrates that the concept of 'driving' does not conclude at the point at which there is a cessation of propulsion or movement of the vehicle. It includes, at the least, those activities which are necessarily related to the completion of the propulsion or movement, such as engaging the correct gear and braking mechanism, and turning off the ignition. In addition, as the examples given by Mr Solomon in his argument demonstrate[32]a vehicle may be understood to be driven, notwithstanding that it is temporarily stationary in the course of a journey. Equally it would follow that it would be inaccurate to maintain that driving does not commence until the moment at which the vehicle begins to move.

....

On the other hand, in its ordinary and natural meaning, 'driving' is not understood to include all steps which are antecedent to the movement or propulsion of the vehicle, nor is it understood to include all steps which a driver may take in respect of the vehicle, after propulsion or movement has ceased....In order that a step which is antecedent to the propulsion or movement of the vehicle, be properly characterised as part of the driving of the vehicle, it must be a step 'which is sufficiently closely connected with the driving of the vehicle in a mechanical or functional sense as distinct from a temporal sense'.[33]

55 In one of the earlier cases considered by Kaye J, Transport Accident Commission v Iacuone,[34] Mandie J had summarised the propositions extracted from Tadgell J's judgment in an earlier case of Transport Accident Commission v Jewell concerning the meaning of 'directly caused by the driving'. The last proposition was that:

A claimant injured in an incident occurring after the driving of a motor vehicle must demonstrate a temporal or other connection between the injury and the incident on the one hand, and the driving on the other, sufficient to prove that the driving directly caused the injury and the incident.

56 The Tribunal's starting point, where the facts did not permit a temporal connection between the incident causing injury and the driving, was that there is a requirement to identify something more than the mere act of driving.[35] Put in the words of Kaye J something connected with driving in a 'mechanical or functional sense'. This requirement was not challenged. The appellant identified and relied on 'the two inferences identified by Mr McDonald [as being] in addition to the active [presumably act of] driving'.[36] Counsel did not elaborate on how placing or securing the D-Shackle prior to commencing the act of driving was 'sufficiently closely connected with the driving of the vehicle in a mechanical or functional sense'.

57 Whether or not the observations about s 3(1A) were correct, no error is alleged in the manner in which the Tribunal approached the definition in s 3(1) which was the applicable definition. The Tribunal was not satisfied that, on the facts known, driving was a sufficiently proximate cause. To the extent Monahan and Burton reach different conclusions on superficially similar facts demonstrates both the importance of the particular fact finding exercise and the importance of considering each fact not in isolation but giving effect to 'their united and combined force'. This appeal is not concerned with whether either case was wrongly decided. Deciding whether a given set of facts demonstrates a sufficient causal connection is one where reasonable minds may differ and, if the definition is correctly construed, raises no legal question.

58 In any event, the Tribunal's reasoning at this point proceeded on the basis of 'if the D-shackle is accepted as having fallen onto the road from a moving car'.[37] It was not premised on the facts that were found by the Tribunal. Therefore any error in this aspect of the reasoning could only affect the outcome of this appeal if the Tribunal was bound to infer that the D-shackle fell from a moving vehicle. For the reasons set out earlier, it was not. Given this conclusion, it is not necessary to consider these grounds further.

59 The final ground of appeal is directed at the adequacy of the Reasons. The Reasons regarding the intention of the legislature in enacting s 3(1A) with regard to accidents involving cyclists are said to be inconsistent. The reasoning with regard to the fact-finding by drawing of inferences is said to be deficient. The argument is that once it is accepted that the legislative intent is not as explained by the Tribunal, and once regard is had to properly drawn inferences, then the conclusion that the Reasons are deficient follows because they do not explain why the probable inference was not drawn and are simply wrong about legislative intent.

60 This is a circular argument that the Reasons are deficient because they are wrong. I accept the respondent's submission that the appellant understood the Tribunal's reasoning but disagreed with it. The comments about s 3(1A) were made in the context of a discussion about the causal connection between the incident and the driving, needed to bring the incident within the definition of a transport accident. Read as a whole, the reasoning overall with respect to this issue is clear.

61 Equally, the appellant's argument about the drawing of inferences rested upon there being only one available inference to be drawn from direct facts. In my view, the Reasons dealt with the question of inferences in considerable detail. The Tribunal accepted that there was more than one inference available as a matter of logic (the second of the Masters requirements). It set out why it could not determine which was the more probable (necessary because of the third Masters requirement). The reasons did not impermissibly engage speculation and guesswork.

62 The existence of another possible inference (that it had been deliberately discarded) first had relevance to the question of whether the inference contended for (that it fell from a moving vehicle) was the more probable. The Tribunal began from the acceptance that either (or both) of Mr McDonald's explanations were possible, as was the possibility of it being discarded, which rested on the absent fastening pin and the observation about debris. At [53], the Tribunal set out clearly the reasons why it was not able to come to a view about which was the more probable explanation.

63 The Tribunal details further reasoning of the two particular explanations proffered by Mr McDonald in the section that addressed whether either of those inferences, if drawn, would not amount to the incident being a transport accident. The Reasons identified two possibilities if the D-shackle fell from a moving car. At [68] they were identified as:

It could have been:

• In, or on a motor car like the strap in Monahan; or
• Attached to a load restraint and the motor car, ie to secure a boat or other heavy object.

64 In order to conclude that the incident was a transport accident, the inference needed to do more than conclude the D-shackle fell from a moving vehicle. It had be a factual finding permitting the Tribunal to draw a causal connection by demonstrating something more than 'the mere act of driving'. The reasoning demonstrated why the Tribunal would not have been satisfied, had it drawn the inference that the D-Shackle fell while the vehicle was being driven, that those facts demonstrated a sufficient causal connection to the driving. Ground 6 is not made out.

65 For these reasons, no error of law has been identified by the appellant's grounds of appeal and the application for leave to appeal is refused.

[1] Letter dated 20 March 2019 from the Transport Accident Commission advising that it had rejected the claim.

[2] The Tribunal's Certificate of Opinion and accompanying Reasons pursuant to the Transport Accident Act 1986 (Vic) dated 19 November 2019, [21] ('Reasons').

[4] [2017] VSCA 88, [101].

[5] Masters Home Improvement (n 4), [101].

[6] Reasons (n 2) [43] 'there is only one reasonable inference that can be drawn from the D shackle being on the roadway, which is it fell from a moving vehicle'.

[7] Nigel McDonald, Expert Report in Bramich v Transport Accident Commission (Review and Regulation) [2020] VCAT 1295 (14 August 2020) ('McDonald Report') [3.1], 6.

[8] McDonald Report (n 7) [6.7]-[6.8], 14.

[9] [2017] VCAT 264.

[12] [2017] VCAT 1783.

[16] [2017] VCAT 264.

[17] Transcript of Proceedings, Bramich v Transport Accident Commission (Supreme Court of Victoria, S ECI 2020 04643, Justice Forbes, 3 March 2022) 8-9.

[18] In breach of the rule in Browne v Dunn (1893) 6 R 67.

[19] Ghosh v Medical Council of New South Wales [2020] NSWCA 122; (2020) 102 NSWLR 303.

[21] Appellant, 'Submissions of the Appellant', Appellant's Submission in Bramich v Transport Accident Commission, S ECI 2020 04643, 18 June 2021, [24] ('Appellant's Written Submissions').

[22] Bulstrode v Trumble [1970] VicRp 104; [1970] VR 840, 846.

[23] G v H [1994] HCA 48; (1994) 181 CLR 387 (Brennan and McHugh JJ).

[25] Transcript of Proceedings, Bramich v Transport Accident Commission (Victorian Civil and Administrative Tribunal, Z900/2019, Member R. Tang AM, 26 October 2020), 34.30-35.15; 38.6-39.3.

[26] The counsel at the VCAT hearing were different to the counsel appearing in this appeal.

[27] Appellant's Written Submissions (n 21) [30].

[28] (2008) 2 VR 33 ('Gunston').

[31] [2011] VSC 159 ('Koutroulis').

[32] Those illustrations being that a vehicle may be driven notwithstanding it is not moving - stationary in a line of traffic or at traffic lights.

[33] Koutroulis (n 31) [32] - [33]; the extract quoted at the conclusion was cited from Heath v Tea Tree Gully Corp [1996] SASC 5588; (1996) 66 SASR 548, [3] (Debelle J); Porter v Bonjero [2000] VSC 265, [157] (Eames J).

[34] [1998] VSC 192, [30].

[36] Appellant, 'Reply Submissions', Submissions in Bramich v Transport Accident Commission, S ECI 2020 04643, 17 September 2021, [6].