(1) Determination that injury suffered by Applicant on 18 February 2003 was directly caused by driving of a motor vehicle.

(2) Decision of Respondent of 21st October 2005 set aside.

(3) Respondent to pay Applicant's costs on County Court Scale "B" to be taxed in default of agreement, including a certificate for a circuit fee of $463.00, for preparation of Tribunal Books, and for counsel to hear reserved judgment.

(4) Liberty to apply.

Ms K Bourke of Counsel, instructed by Ryan Maloney Anderson.

Mr A Moulds of Counsel, instructed by the Solicitor to the Transport Accident Commission.

1 This application, which was issued on the 24th October 2005, is brought by Travis Auricht ("Auricht") who seeks to review a decision of the Transport Accident Commission ("the TAC"), such decision being contained in a letter dated 21st October 2005.

2 The application in turn relates to an accident that occurred on 18th February 2001 ("the accident"). As shall be discussed, the only question for determination in this case is whether the accident is one which falls within the definition of "transport accident" contained in s.3 of the Transport Accident Act 1986 ("the Act"). In other words, the issue to be determined is whether the incident resulting in the injury was directly caused by the driving of a motor vehicle.

3 Ms Bourke of Counsel appeared on behalf of Auricht. Mr Moulds of Counsel appeared on behalf of the TAC. The only oral evidence given was that of Auricht, the balance of the evidence being introduced by way of tendered documents. Submissions as to the law, based on facts that were largely non-controversial, were also made.

4 I now turn to my findings of fact which form the basis for this ruling.

5 Auricht is a young man aged 21 years. From the age of about 15 years, and whilst still attending school, he performed some work for an entity known as Tranter Produce. The work consisted of general duties such as tractor driving, planting potatoes and the like. In December, 2001, Auricht commenced full-time duties with Tranter Produce. Again, his work was that of a general farm hand.

6 One of the duties which he performed, and was performing as at the time of the accident, involved the use of an agricultural implement called a potato seeder ("the seeder"). The seeder is towed behind a tractor to which it is connected by a draw-bar. I accept that the seeder was not built to be propelled by a motor forming part of it, was thus not a "motor vehicle" for the purposes of s.3(1) of the Road Safety Act 1986, and accordingly not a motor vehicle for the purposes of the Act, it not falling within the definition of same in s.3.

7 In addition to the drawbar connecting the tractor to the seeder, three hydraulic hoses run from the tractor to the seeder. These enable the tractor driver to raise either end of the seeder. The seeder only operates when in motion and when its wheels are on the ground. It is what is known as "land driven". Thus, if the tractor and seeder get to the boundary of a paddock, and the tractor driver wishes to turn around and proceed in the opposite direction, the wheels of the seeder can be raised from the ground and the seeding operation ceases. Similarly, there are large discs at the back of the seeder, which create furrows, and these can also be raised so as to permit manoeuvres. In addition, a type of tray at the rear of the seeder can be raised so as to cause the "seed", consisting of old potatoes which have been treated and cut up, to roll forward towards the front of the seeder.

8 At the front there are six chutes, three each side of the draw-bar. The seeded potatoes roll forward into these chutes. In each chute is a type of paddle or bucket which places the seed evenly in the ground. The paddles are driven by a chain drive connected to each chute by a shaft. The drive for the chain drive and the shafts is provided by a further chain drive, driving from the wheels of the seeder. When the seeder is moved forward by the tractor, the drive commences rotating. When the tractor stops and the machine stops, or when the wheels are raised above the ground, the drive also stops. Thus, the entire operation of the seeder is controlled by, and dependent upon, what is happening in the tractor.

9 In addition, at the time of the accident, there was placed on the front of the seeder a plastic drum used for containing tools, and a small oil container. I accept that some oil had leaked onto, or been spilt on, the top of the drum. Further, a pin meant to connect the drive shaft, which is a split drive shaft, had been replaced by the blade of a screwdriver, which protruded each side of the shaft.

10 The system of work was that the tractor, with its driver, effectively pulled the seeder around the paddock with a second person - in this instance, Auricht - being required to perch on the seeder in order to ensure that the seed potatoes did not build up and block the chutes. Apparently this happened quite frequently. It is an occurrence that could not be observed by the tractor driver. When this occurred, the second person, perched on the seeder, would clamber along, with his back to the tractor, in an attempt to clear the blocked chute by pushing the seed potatoes with a piece of stick provided for this purpose.

11 I might say that it is no part of this ruling for me to comment upon the system of work, which has been the subject of a full investigation by a senior investigator of the Victorian WorkCover Authority. The documents relating to this investigation were placed in evidence.

12 The accident occurred as follows. At approximately 8:15pm, Auricht noticed that the very end belt or paddle had seed potatoes stuck in its chute. By the very end position, I mean the outermost of the three chutes on the left hand side of the seeder as one faced the tractor. Armed with his piece of stick, Auricht began taking small sideways steps along the front of the seeder towards the blocked chute, his back being towards the tractor. Whilst so doing, he placed his foot upon the top of the plastic drum containing the tools, and slipped, presumably on oil.

13 His foot having slipped, the lower part of his right trouser leg then came into contact with the horizontal steel shaft and became caught in the part of the screwdriver, being used as a makeshift repair, which was protruding. Auricht was dragged forwards over the front of the seeder, his leg being trapped. It was in this manner that he suffered the dreadful leg injury which is the subject of this claim.

14 Details of that injury need not concern us in this application. Suffice to say that Auricht's right foot remained pinned in the main shaft of the machine for some 3 to 4 hours until a helicopter arrived with emergency assistance. He was airlifted by helicopter to Mildura, and then transferred by aeroplane to the Royal Melbourne Hospital. His hospitalisation there, and at the Berri Hospital, continued for some weeks. The injury to his right foot and ankle has been described by Professor John Hart, Clinical Associate Professor of Surgery, as "very severe". His progress since the occurrence of the injury is not an issue that requires consideration in this application.

15 The submissions made by Ms Bourke on behalf of Auricht could be summarised as follows.

16 The facts of this case satisfy the statutory test contained in s.3 of the Act. Reference is made to the previous decision of mine in Larson v Transport Accident Commission (delivered 4th February 2004) in which various authorities are examined in relation to the phrase under consideration. The submissions advanced by counsel in that case, and the authorities relied upon, are in turn relied upon in the present case. Just as in Larson the driving of the vehicle was inextricably linked with the incident and resultant injury, so it is in the present case. Here, the tractor was being driven and was in motion, and it was that driving which led directly to the incident of injury. A distinction is drawn between the present case and the decision of the High Court of Australia in Allianz Australia Insurance Limited v GSF Australia Pty Ltd [2005] HCA 26 (19 May 2005). A similar distinction can be drawn between the present case and another High Court decision, namely Insurance Commission of Western Australia v Container Handlers Pty Ltd and Ors [2004] HCA 24 (26 May 2004). In each of the High Court cases, the vehicle concerned was stationary. In the former, the vehicle was being unloaded. In the latter, the vehicle was being repaired. In addition, each involves statutory codes which differ from that presently under consideration. The applicant has satisfied the requirements of the statutory provisions operating in this case.

17 The submissions made by Mr Moulds on behalf of the TAC could be summarised as follows.

18 The historical analysis of the development of the legislation which was advanced in Larson is again adopted. It is clear that the amendments which have taken place are intended to restrict the availability of benefits. Apart from anything else, there are economic imperatives which have led to these amendments and the overall and apparent objects of the legislation must be considered, as must the policy which is evident.

19 Furthermore, the wording of s.3 in particular must be considered. The words "directly caused by" require a far greater degree of relationship between the driving and the incident than do the words "arising out of". Furthermore, the High Court decisions in Insurance Commission of Western Australia and Allianz, both of which have been handed down since the decision in Larson, point to the words "directly caused by" involving a predominant cause. Admittedly each decision concerns a statute other than that with which we are dealing, but great assistance is to be obtained from them.

20 In the present case, the incident of injury was not directly caused by the driving. There was a chain of events which led to the incident. Any application of the "but for" test should be resisted. The direct cause of the injury was not the driving, but the design of the potato seeder, combined with the unsafe system of work, which led to Auricht placing his foot upon the drum, and hence on oil, and slipping, which led to injury due to the presence of the screwdriver. Within the meaning of the authorities and the section, the injury was not directly caused by the driving.

21 Matters such as this are not simple, and are often a question of degree. In the present case, in my opinion, the incident of injury was directly caused by the driving. I am of that view whether the driving must be the predominant cause of the injury, or whether, as stated by Mandie J in Transport Accident Commission v Iacuone [1998] VSC 192, there may be a multiplicity of direct causes.

22 The potato seeder is not a motor vehicle within the meaning of the Act. It does not fall within the definition. There is no argument but that the tractor is a motor vehicle. Without the driving of the tractor, the seeder does not operate. It is the driving of the tractor which is the key to the entire operation which was being carried out at the time of the injury.

23 Further, it is the rotating of the shaft on the seeder, which is powered by the driving of the tractor then causing the seeder wheels to turn, which is directly responsible for the injury. It is not as if, without there being any bumping, jolting, or change of direction, Auricht simply fell from a trailer and landed on the ground, sustaining the injury. Without in any way determining the issue, the nexus between the driving and the incident of injury in that situation might be more tenuous. In the present case, the operation of the seeder is inextricably linked to the driving of the tractor and the operation of the seeder is inextricably linked to the incident of injury. The injury is directly caused by the driving.

24 As stated by Mandie J in Iacuone, this issue is a question of fact and a question of degree. Further, as stated by Tadgell J in Transport Accident Commission v Jewell [1995] VicRp 22; (1995) 1 VR 300, at 306, it is difficult to enunciate a general proposition, the application of which will provide a ready solution in any case. Similar sentiments were expressed by the majority in Transport Accident Commission v Treloar and Ors [1992] VicRp 31; (1992) 1 VR 447 at 453.

25 An example which perhaps illustrates this is as follows. If a person is a passenger on a moving bus and, whilst walking down the aisle and without there being anything untoward or unusual about the driving, slips upon a banana skin and falls to the floor of the bus thereby sustaining injury, it may well be arguable that this was not directly caused by the driving. Arguably, the bus provides merely a stage or platform upon which the injury is sustained - see Ross v Transport Accident Commission [2000] VSC 112 where this type of terminology was employed. Let us now place the person and the banana peel upon the footpath. The person slips on the banana peel and falls beneath the wheels of the bus which is being driven on the adjacent roadway. It seems to me that it would now be far more difficult to argue that the injury was not directly caused by the driving. The vehicle would no longer be merely the stage upon which the injury occurred. If one took the example even further, and the person slipped and fell into the workings of a vehicle being driven or towed along the roadway - say, for example, some type of street cleaner - it seems to me that the argument that the injury was not directly caused by the driving is even more difficult to maintain.

26 The last mentioned illustration, no matter how apparently far fetched, is akin to what occurred in the present case. It is not just that Auricht fell whilst on a trailer being towed by a motor vehicle which was being driven. He fell into working machinery which was operating as a result of the driving of a motor vehicle, and he sustained injury as a result. In my opinion the injury so sustained was directly caused by the driving of the motor vehicle.

27 I might also make a general observation which has no relationship to the above finding. Ostensibly, the injury sustained by Auricht occurred in the course of his employment. The Victorian WorkCover Authority has carried out a comprehensive investigation of the circumstances. Auricht sought from the Victorian WorkCover Authority a determination that he had suffered a serious injury within the meaning of s.134AB of the Accident Compensation Act 1985. The solicitors for the Victorian WorkCover Authority effectively declined Auricht's application, this being done on the basis that Auricht's injuries were in fact sustained in circumstances covered by the provisions of the Transport Accident Act. Obviously the Government authorities must act in a proper way and at arm's length. Nevertheless, it is an object of both the Accident Compensation Act and the Transport Accident Act that adequate and just compensation be provided to injured persons. It seems to me unfortunate, and unnecessarily expensive, if a person sustaining an injury in circumstances such as this has to be shuttled back and forth between Government agencies. It might be that there is some system in place in order to deal with a situation such as this. If there is such a system, it does not appear to have been operative in the present case. Without wishing to tell Government agencies how to run their affairs, it seems to me that it would be more cost efficient and user friendly if one agency - say, the Victorian WorkCover Authority - accepted responsibility for the conduct of the matter, and the question of whether or not responsibility in fact rested with the other agency - in this instance, say, the Transport Accident Commission - was later determined by agreement or by an independent arbitrator without there being duplication of inquiry or litigation. I make these observations as an aside, and for what they are worth, which may be very little.

28 In summary, my determination is that the injury sustained by the applicant, Travis Auricht, on 18th February 2003 was directly caused by the driving of a motor vehicle. The decision of the respondent, the Transport Accident Commission, as embodied in its letter of 21st October 2005 is set aside.

29 I shall hear submissions as to the consequential orders that should be made.