1. Section 35 of the TA Act says a person, "who is injured as a result of the Transport accident" is entitled to compensation in accordance with the Act.
2. Section 3 of the TA Act defines the term "transport accident" to mean "an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram".
3. Section 74(1) of the TA Act says:
   1. Cessation or review of liability to pay compensation in certain circumstances

(1) If the Commission becomes aware that it is making payments of compensation in respect of a transport accident to a person who is not and never has been entitled to payments in respect of that accident, the Commission must give notice to the person to that effect and cease the payments.

1. In this proceeding I must 'stand in TAC's shoes' and decide whether TAC's decision was the correct or preferable one based on the material before VCAT.[1]

Is it arguable Mr Aquilina was driving his car? - Yes

1. The issue of whether a person was injured in an incident directly caused by the driving of a motor car or motor vehicle has been considered by the Supreme Court of Victoria.
2. In Koutroulis v Transport Accident Commission [2011] VSC 159, Kaye J said:

Thus, the question whether a particular step, which precedes the driving of a vehicle, could be properly understood as being part of the driving of it, does involve a judgment as to the sufficiency of the connection between the step and the propulsion or movement of the vehicle. Ultimately, the resolution of that question must depend on the proximity of connection between the step and the propulsion or movement of the vehicle, both in terms of time, and, more importantly, in terms of effect. Thus, the conclusion of fact, by a Tribunal, that a particular step constituted part of the driving of the vehicle, could only be demonstrated not to be reasonably open to the Tribunal, where the degree of connection between the step and the propulsion or movement of the vehicle is such that, in ordinary discourse, that step could not reasonably be understood to be part of the driving of the vehicle.

1. In November 2007, two months after the accident, Mr Aquilina signed a written statement, his only contemporaneous written description of relevant events. This was obtained by the LKA Group, investigators engaged by TAC. Relevant to whether he was driving he said:

It was about 7:30 PM when I arrived back to my car. As far as I can recall I unlocked my driver's side door with my keys, opened my driver's door and started to get into the vehicle by putting my left foot in and I put the key into the ignition. I was about to sit in the drivers seat with my driver's door still open then I turned the ignition key on. This is when I heard what sounded like the indicator click but I am not sure of that. As soon as I heard the click I heard a loud explosion and I was forced backwards and I was thrown out and away from the vehicle. I had my driver's door open and I had my left hand in the car with my right hand to turn the ignition then the explosion occurred.

1. A Victoria Police patrol duty sheet from the day of the fire records, "Aquilina stated when opened and got into car heard a loud bang then car was on fire".
2. In an October 2007 insurer's damage assessment report, the assessor recorded him saying, "I put the key in the ignition it made a funny noise then the car blew up".
3. Mr Aquilina's May 2012 witness statement says, "I went to start my car and as I placed the key into the ignition there was caused to be an explosion within my car."
4. At the hearing before me, Mr Aquilina's evidence was that on the night in question he dropped his wife at the shops and drove off to find parking. Once the van was parked, he spent 20 to 25 minutes trying to find his wife but failed. He returned to the car, intending to drive it closer to where he might then find his wife. He opened the car door, sat in the driver's seat and inserted the ignition key but had not turned it. He first said this was the point where a loud explosion occurred coming from the dashboard in front of him. Soon after he said the explosion happened immediately after he turned the ignition key. At one point he seemed to indicate the explosion came from a little left of centre toward him.
5. With about six and a half years having passed since the accident, if I were to accept either of Mr Aquilina's versions of events, I would prefer his contemporaneous 2007 recollection, to his variable recollection at hearing.
6. In my view, opening the car door, being in movement to sit in the seat and in doing so, starting the ignition is, in Kaye J's words, a step (here literally into the car) sufficiently closely connected with the driving of the vehicle in a functional sense to constitute "driving" under the TA Act.
7. Had I decided otherwise after considering his evidence, I would have affirmed TAC's decision without addressing other issues. Having decided that if I were to accept Mr Aquilina's 2007 evidence I would accept he was driving, I turn to the other issue.

Was Mr Aquilina injured by an explosion following him inserting the ignition key in his van? - No

1. Mr Conway joined the Metropolitan Fire and Emergency Services Board in June 1976, became its only permanent fire investigator in 1994, and has served in that role since then, later joined by colleagues in the same role. He investigates all sorts of fire and has a special interest in automotive fires. He has qualifications as a motor mechanic. Over the years he was seconded to investigate the fire and deaths at Kew Cottages (1976), the fire and deaths at the Esso Longford Plant (1998) and to assist with the investigation of the Black Saturday bushfires (2010/2011). He teaches in the field.
2. While Mr Valiotis, for Mr Aquilina, submitted I should not consider Mr Conway's evidence, I allowed Mr Conway to by oral evidence expand on his brief written statement, so that I may fairly exercise discretion concerning Mr Valiotis' submissions.
3. My approach was consistent with Forrest J's approach in Baulch v Lyndoch Warrnambool & Anor (Ruling No 3) [2008] VSC 420. He rejected a submission that he was constrained in determining whether to admit evidence of an expert by reference to the contents of that expert's report alone. He said:

... Order 44 [the Supreme Court's equivalent of VCAT's practice note] is designed to ensure that fully reasoned and articulated expert reports are provided by the parties prior to trial. This enables the parties to gauge the strengths of the expert's opinion, or for that matter its weaknesses. It is also designed to ensure that the expert appreciates that he or she has an obligation to the court in terms of providing an unbiased report based on that expert's field of expertise. It does not in my view inhibit a party from leading further evidence at the trial of the proceeding to endeavour to satisfy the court that the expert has the relevant expertise or that the opinion flows from that expertise and its application to the facts.

A party, in my view, has the substantive right to lead such evidence provided it satisfies the legal test as to the provision of that opinion. Order 44 ensures, at least in a procedural fashion, that the parties know the nature of the opinion and its basis and hopefully its lack of bias. Accordingly it is appropriate to permit a party to lead further evidence on an application such as this. ... Of course if something emerges from that evidence that takes the other party by surprise then that can be dealt with by an appropriate application.

1. While Mr Valiotis acknowledged VCAT is not bound by the rules of evidence[2], he submitted:

1. I should not consider Mr Conway's only written evidence provided in this proceeding, a two page statement from August 2013, as it falls well short of the requirements of an expert witness statement, as set out in VCAT's Practice Note - PNVCAT2 Expert Evidence (the Practice Note). He submitted in his written statement, Mr Conway does not adequately describe his qualifications and experience as an expert, does not declare his awareness that he is required to give impartial evidence to assist VCAT and does not in sufficient detail describe how he employed expertise to arrive at his opinion. 2. I should not consider Mr Conway's written evidence as expert evidence, as it does not meet the requirements for such evidence as described in ss 76 and 79 of the Evidence Act 2008. In summary (drawing from s 79 of the Evidence Act), he submitted the written statement was not, on its face, from a person with specialised knowledge based on the person's training, study or experience and not evidence of that person's opinion, wholly or substantially based on that knowledge.

1. I should refuse to admit Mr Conway's written evidence in accord with principles set out in s 135 of the Evidence Act, which says a court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party. Mr Valiotis submitted the prejudice arises as: 1. The incident occurred over 6 ½ years ago and impacts Mr Aquilina's and Mr Conway's abilities to recall the events; 2. Mr Aquilina is unable to have the van assessed by an expert, the wreck being sold in 2007; 3. TAC decided to accept liability, first having accepted such in 2010 on the basis of information no different from that available today; and 4. Mr Aquilina is effectively accused of committing a crime in circumstances where no charges were laid by Victoria Police in 2007, an insurer paid $2,400 years ago, and TAC has not bought charges under ss 116 or 117 of the TA Act.
2. I considered these submissions with Bowman J's words in Golem v Transport Accident Commission [2002] VCAT 319 in mind:

In summary, it seems to me that the following is what could be described as a general approach that can be adopted in an adversarial-type case, such approach being consistent with the operation of the Act and with the authorities. In placing itself in the shoes of the decision maker, the Tribunal can and frequently will gain assistance from reference to the rules of evidence and to the practices and procedures of courts of record. It is not bound by such rules, practices or procedures, but is bound to act fairly, and this includes the affording of procedural fairness. In arriving at the procedure to be adopted, it is a matter for the Tribunal itself to determine, bearing in mind the requirement for fairness, and bearing in mind what was described by Woodward J as "considerations of natural justice or common sense". As stated, the established rules of evidence and of practice and procedure may assist in this regard, and particularly where the matter is proceeding as an adversarial contest.

1. I rejected Mr Valiotis' submission that I should not consider Mr Conway's evidence given of non-compliance with the requirements of the Practice Note.
2. Mr Valiotis is correct that Mr Conway's written statement falls well short of the requirements of the Practice Note. It is concerning TAC did not arrange for the preparation of an appropriate witness statement by him. In some circumstances, that could give rise to a breach of natural justice leading to evidence not being admitted.
3. However, non-compliance with the Practice Note should not prevent a party putting the substance of its case, where there is an alternative way to avoid the risk of denial of natural justice. Here, having heard Mr Conway's oral evidence and having been provided (at the hearing) with Mr Conway's resume, Mr Aquilina could have sought an adjournment of the proceeding to consider any response and would have been on strong ground applying for a relevant costs order. That option was not pursued.
4. I rejected Mr Valiotis' submission that I should not consider Mr Conway's evidence because his written statement does not comply with the requirements of s 76 of the Evidence Act. Having heard Mr Conway's oral evidence, the issue of substance is whether the totality of Mr Conway's evidence, as described below, constitutes expert evidence.
5. On this point, of the various authorities Mr Valiotis referred me to, it is most convenient to refer to Dixon J's analysis of whether referring to s 79, evidence is expert evidence, in Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Ors (Ruling No 1) [2012] VSC 555. He refers to four rules to assess whether the exception under s 79(1) renders opinion evidence admissible:

1. is the opinion relevant (or of sufficient probative value); 2. has the witness properly based 'specialised knowledge' (the expertise rule);

1. is the opinion to be propounded 'wholly or substantially based' on specialised knowledge (the expertise basis rule);

1. is the opinion to be propounded 'wholly or substantially based' on facts assumed or observed that have been, or will be, proved, or more specifically (the factual basis rules): 1. are the 'facts' and 'assumptions' on which the expert's opinion is founded disclosed (the assumption identification rule); 2. is there evidence admitted, or to be admitted before the end of the tendering party's case, capable of proving matters sufficiently similar to the assumptions made by the expert to render the opinion of value (the proof of assumptions rule); 3. is there a statement of reasoning showing how the 'facts' and 'assumptions' relate to the opinion stated to reveal that that opinion is based on the expert's specialised knowledge (the statement of reasoning rule)?
2. Applying these rules to Mr Conway's evidence as a whole (see below) in my view it is admissible, because:

1. His evidence is relevant to the question of whether Mr Aquilina was injured as he described; 2. He has properly based specialised knowledge concerning determining how fires start and progress. A lay person is not able to inspect a fire site and determine such issues;

1. His opinion that the fire started in the rear left of the van is wholly based on his specialised knowledge; and

1. His opinion is wholly based on proven facts being burn patterns on the van and the pattern of destruction as proven by Mr Conway's written report, his recollections and photographs tendered in this proceeding.
2. I rejected Mr Valiotis' submission that Mr Conway's written statement should not be accepted on the basis that considering it creates prejudice such that it should not be admitted. Section 74 of the TA Act shows Parliament's intention that TAC, once having accepted liability relating to transport accident, may reassess and reverse its decision.
3. There is some prejudice, primarily flowing from the understandable deterioration in the recollections of Mr Aquilina and Mr Conway in giving oral evidence at hearing. However, prejudice arising from the inability to physically examine the van arose relatively soon after the accident when the car was presumably turned to scrap metal on instruction of the insurer. Prejudice arising from the non-compliance with the Practice Note and oral evidence being given at hearing could again been addressed by an adjournment. In my view, the quality of Mr Conway's opinion, based on his written statement, photographs available to the hearing and, as he described, his memory being jogged by the process of giving evidence, was not overly negatively impacted by the passage of time.

I recall in 2007 I attended a vehicle with the station officer and full time fire investigator Rod East. I ... recall ... the vehicle ... may have been at a panel beaters ... towed there from the accident scene. I recall the vehicle was a white XF Ford Falcon panel van which appeared to be in a poor condition. When I looked at the vehicle, it had extensive fire damage to the internal rear of the panel van and passenger area which are joined. I recall examining the fuel tank which is at the base of the vehicle. The burn patterns did not indicate that it had come from the fuel area of the vehicle. They did indicate that an accelerant had been used in the internal and rear of the panel van area. The under bonnet engine area was untouched by fire. I deemed the fire to be suspicious in nature and contacted Police to attend the scene and handed the investigation over to the attending local police unit. In my role I am not authorised to undertake investigation of suspicious fires, this is the role of the police force. No report was generated as this is not our legislative role.

1. The background to him being asked to first investigate a car is relevant. He is not normally called to a fire unless a senior fire brigade officer regards it as suspicious. That was the case here. He saw the van in a yard the day after the fire, where it had been towed.
2. His evidence was a combination of actual recall of the inspection with an element of relying on what he would usually do in such an inspection. He was provided with photographs of the car shortly before the hearing, which he saw for the first time. He said this assisted his recollection and his thinking about the issue as he prepared to give evidence.
3. Mr Conway had not kept notes from the inspection nor prepared a contemporaneous report. His role in 2007 was to consider whether he regarded the fire as suspicious. If he did, he was obliged to inform Victoria Police who may investigate. Only where he does not regard the fire as suspicious is he required to produce a written report. His 2013 two-page letter on the issue was produced at the request of the company G4S, the other investigator commissioned by TAC.
4. Relying principally on burn patterns on the car and internal damage as he recalled it, supplemented by the photographs, Mr Conway's strong opinion was the fire started in the left rear of the van and advanced towards the front. He said the burn patterns reflect the heat applied to an area. Here the greatest heat would have been applied where the fire started, causing the most extreme burn pattern, present in the body surrounding the floor of the left rear of the van. In his view, when the fire reached the passenger area it did most damage on the left-hand side. The fire intruded only to a minor extent through the firewall between the passenger area and the engine, through holes which air conditioning tubes run. The engine compartment was not significantly impacted. There had not been an engine fire. Hoses and wires remained intact. The petrol tank was not involved in the fire and there was no evidence of petrol leakage. The petrol tank is located behind the seats. If there had been a leak the fire would have burnt back to the source of the leak. In his view, the car ignition was not the source of the fire. While the driver area was extensively damaged, it was not as damaged as the left-hand side. If the starting of the fire related to the car ignition, he would have expected more damage in the engine bay.

1. Given there was apparently nothing to burn in the back of the van at the time of the fire (Mr Aquilina's evidence), in Mr Conway's opinion some form of accelerant was placed in the left-hand back of the van and ignited by "persons unknown".
2. On the issue of the possibility of a fire starting when Mr Aquilina turned the ignition key of the van, Mr Conway agreed fires can start in the location of the ignition given relatively high voltage wires that run to the ignition. However, his evidence was this gives rise to a slow starting fire rather than any form of explosion. He had never seen evidence of a car ignition causing an explosion.
3. On the issue of whether an explosion occurred, Mr Conway said he had seen many examples of damage caused by vapour explosion. Here, he noted there was no evidence that the front windscreen of the van popped, which he would have expected had there been any significant explosion.
4. When under cross-examination asked to comment on an entry in fire brigade documentation relating to the call out to attend the burning van which said, "Area of origin: 83 engine area, running gear, wheel area of transportation equipment", Mr Conway commented this text comes from a limited drop-down menu in the computer software. He also noted the documentation also recorded "form of the ignition undetermined", "ignition factor undetermined", ":type of material undetermined", "equipment involved in ignition undetermined". He also noted that on the day fire, it was regarded as suspicious and he was called.
5. Concerning Mr Aquilina's car, Mr Conway first said it was an XF Falcon panel van manufactured in approximately 1977. It was in poor condition with a dirty oily engine. Under cross-examination, Mr Conway agreed his recollection was faulty in that he incorrectly recalled the make, model and year of the van and that it contained bucket seats with central column shift. The van contained a bench seat with a column shift.

1. TAC provided a recording of calls from the public once the van was on fire. None of the callers spoke of seeing the fire starting. Of those apparently close to the fire when it started (some people rang 000 as they drove past the area) no-one reported hearing an explosion.

1. Ambulance records from the day of the fire record Mr Aquilina having:

... superficial burns to the right side of his face superficial burns to his palms. Blistering obvious on the right palm. [Patient] had some moderate swelling to both hands and wrists. On the face, [patient] had superficial burns mainly to the right cheek and into the right temple. He also complained of some pain around his mouth and lips, with some minor swelling and redness.

1. A Western Hospital discharge summary the day after the fire says in part, "superficial burns to the face, neck and both hands following 'an explosion'."
2. A specialist dermatologist report dated 11 December 2009 speaks of Mr Aquilna experiencing, "a very severe burn when Victor's car was caught up in a fire".

1. LKA are investigators TAC engaged. Its 2007 report speaks of the van being parked in a designated parking bay some distance from the St Albans shopping centre on a flat area of bitumen road surface. The insurer advised LKA the fire did not appear suspicious. The van had been insured since 1986. The insurer paid Mr Aquilina $2,400. LKA concluded Mr Aquilina sustained burns to his upper body as a result of his vehicle catching fire when he started the ignition.

1. G4S are also investigators TAC engaged. Its May 2013 report spoke of a discussion with Mr Conway where Mr Conway expressed his suspicions. Mr Conway advised the fire brigade internal system showed the van fire occurring near East Esplanade and the Arthur Street roundabout St Albans. G4S conducted interviews of surrounding shops and was advised by three witnesses that the van had been parked at the west end of Elaine Street, parallel parked on the south side of the road. Metropolitan Fire Brigade documentation attached report described the address of the fire as, "East Esplanade - St Albans". It also recorded that the MFB was called to the fire by Mr Aquilina, "who says that the car ignited as soon as he opened the door to the car for no apparent reason".
2. For completeness, I note that also attached to the G4S report was a July 2013 email from a police officer who attended the 2007 fire to a TAC officer. It said in part:

It was the opinion of police at the time that the person who most likely the lit fire/cause it was in fact the victim. Given the fact that there was no insurance claim submitted and he essentially damaged his own property which is not an offence so the matter was left as unsolved/nil further police action. (sic)

1. I have described Mr Aquilina's evidence about events up to and including his description of an explosion.
2. Giving oral evidence at the hearing, Mr Aquilina spoke of his next recollection after the explosion was him being under a torrent of water as fire services officers provided immediate treatment for his burns. He was taken to Western Hospital.
3. Mr Aquilina vehemently denied the fire started toward the rear of the van and that he started it. His says his injuries to his hands and face came from the front, not the rear. He asked why any person would want to burn his own car to collect a couple of thousand dollars in insurance. He confirmed he always insured the car.
4. He suggested that gas or some other flammable substance may have leaked from one of the refrigerators or fuel cans he usually carried in the back of his van for his work, although he said on the evening in question there was nothing in the back of the van.
5. On the issue of the scene of the fire, Mr Aquilina was adamant it had occurred quite some distance from where he dropped his wife. With the help of a map, he identified an area half way between St Albans Railway Station and Keilor Plains Railway Station. This is quite some distance from Elaine Street, where G4S said the van caught fire and from East Esplanade where 000 callers placed it.

1. I affirm TAC's decision.
2. In reaching my decision I have borne in mind other words of Bowman J in Golem:

It is clear from what has been put to me by Counsel, apart from what is contained in the documentation, that the benefits payable to the Applicant were terminated because it is now alleged that the accident either did not happen or did not happen in the manner described. Mr. Brett put it that payments had been terminated because the Commission considered that what had occurred was a fraud. The Commission, through Mr. Griffin, did not dissent from this. Indeed, as outlined by Mr. Griffin, it became quite clear that fraud was exactly what was being alleged. I make it clear that I am not now dealing with the standard of proof that is required but rather with the sequence in which evidence or material should be received. Thus, when a criminal or quasi-criminal allegation is made in a civil matter, some exactness of proof is expected, as stated by Dixon J in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362. In coming to the ruling under consideration, I am minded more of what is required by way of procedural fairness than by any statements concerning the standard of proof, but in so doing consideration of the attitude of courts of record to serious allegations can be of assistance.

1. I find, on the balance of probabilities, the fire which destroyed Mr Aquilina's van started in the back left-hand corner of the van with the burning of some form of accelerant by a person or persons unknown.
2. I accept Mr Conway's evidence on this issue. His opinion is based on physical evidence and his expertise. It has strong probative value.
3. I also accept Mr Conway's evidence that, while a car fire can start at the ignition, it does not start with an explosion and that there is no indication in the structure of the van of an explosion having taken place.
4. In my view, Mr Conway's errors in recalling attributes of the van make, model and seat arrangement do not detract from the basis of his opinion, which does not depend on those issues. His errors are understandable given the passage of time.
5. In the context of Mr Conway's evidence, I do not accept Mr Aquilina's evidence that as he started the ignition, an explosion occurred in front of him causing his injuries.
6. Mr Aquilina does not claim to be, and is not, an expert concerning causes of fire. Therefore, his opinion about some form of gas escaping from equipment previously but no longer in the car and being the source of the explosion is not admissible in this proceeding. In any case, it is contradicted by Mr Conway's expert opinion.
7. I have not had regard to opinions of others either agreeing or disagreeing with Mr Aquilina's position. I described them for completeness.
8. Finally, I have considered the evidence in the context of the night in question; particularly whether the circumstances should lead me to reject Mr Conway's opinion as improbable, on the basis it appeared unlikely Mr Aquilina would drop his wife off at the shops on a Friday night, park the van and then someone would set fire to it using accelerant.
9. Given my view that Mr Conway's opinion has strong probative value, I do not reject his opinion on that basis.

[1] See Applebee v Monash CC (Review and Regulation) [2014] VCAT 257, paras 32 to 37.

[2] Victorian Civil and Administrative Tribunal Act 1998, s 98(1)(b)