[On the question of whether it was open to the tribunal to find that the injury was directly caused by the driving of the car]...it cannot be said that it was not open to a reasonable tribunal, correctly applying the statutory provisions to its findings of primary fact, to reach the conclusion that it did on this ultimate question of fact. That question of fact may well be one upon which reasonable minds, properly instructed, might differ but it is not for this court to decide the question of fact for itself. [p 512]

1. At p 511, Mandie J extracted a number of propositions from the judgment of Tadgell J in Jewell [at pp 306-7]:
   • whether an injury (or incident) was one "directly caused by the driving of a motorcar" is a question of fact;
   • the words "caused by" (even in the changed context) connote a "direct" or "proximate" relationship of cause and effect;
   • the words "directly caused by" do not mean "solely caused by";
   • it is futile to strive to enunciate a general proposition the application of which will provide a ready solution in any case raising the question whether an injury (or incident) was directly caused by the driving of a motorcar;
   • an injury might be held to have been "directly caused by" the driving of a motor vehicle even though it was not produced by any collision or other physical contact between the person injured and the vehicle and, accordingly, an injury need not occur in the course of the driving of a motor vehicle in order that it may be said to have been directly caused by the driving;
   • 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.
2. His Honour articulated a number of propositions from the case law about the difference between "arising out of" and "caused by":

Courts have long taken the view that the words "arising out of" require a "less proximate" or "less immediate" causal relationship than the words "caused by".

1. His Honour also observed in relation to the words 'directly caused by':

Just as the words "arising out of" connote a causal relationship less proximate or immediate than the words "caused by", I think that the words "directly caused by" connote a causal relationship more proximate and immediate than the words "caused by". It seems to me that, quite independently of the valid point that the word "directly" must have been inserted by Parliament for the purpose, the expression "directly caused by" is not tautologous. I would respectfully agree with what was said by Brooking J in Treloar (at p.462 - see too Jewell, per Tadgell J at pp.306-7 and SGIC v Sinfein Pty Ltd (1996) 15 WAR 434,462. It is a question of degree, however, and in most cases, it may make little difference, given that "caused by" itself requires the identification of a direct or proximate cause.

With the qualification that, in this statutory context, the driving of the motor vehicle must directly cause the incident and injury but there may be other direct causes as well, the words of Lord Shaw in Leyland Shipping Co v Norwich Union Fire Insurance Society [1918] Ac 350, 369 remain apposite:

To treat proxima causa as the cause which is nearest in time is not the question. Causes are spoken of as if they were as distinct from one another as beads in a row or links in the chain but - if this metaphysical topic has to be referred to - it is not wholly so. The chain of causation is a handy expression, but the figure is inadequate. Causation is not a chain, but a net. At each point influences, forces, events, precedent and simultaneous, meat; and the radiation from each point extends infinitely. At the point where these various influences meet it is for the judgment as upon a matter of fact to declare which of the causes thus joined at the point of effect was the proximate and which was the remote cause.[p511-512]

1. In Container Handlers, which concerned the then definition in the West Australian Act, McHugh J placed emphasis on the definite article 'the' in front of the word 'driving':

It is not enough that the death or injury is the result of the use of the vehicle. The death or injury must be a consequence of the driving of the vehicle. The definite article "the" in front of "driving" emphasises the need to find a causal connection between the death or injury and some feature of the driving of the vehicle. It is at this stage that the case for Container Handlers fails. [64]

Nothing in the evidence suggests that any particular feature of the driving of the vehicle brought about the injury to Mr Sutton. Nothing in the evidence suggests that some feature of the driving, such as running into a drain or avoidable pothole or driving at excessive speed, caused the low loader's wheel bearings to fail or the wheels to lose their shape. If some feature of the driving had this effect, it might plausibly be suggested that Mr Sutton's injury was a consequence of that driving, because it led to the repair work which in turn led to the injury. On that hypothesis, the injury was arguably a consequence, although not a direct consequence, of the driving of the vehicle. Nevertheless, nothing in the evidence suggests that the injury to Mr Sutton was the result or effect of some feature of the driving of the vehicle. [65]

1. I respectively agree that the use of the definite article emphasises the need to find a causal connection between the death or injury and some feature of the driving of the vehicle.
2. At [66], McHugh J considered whether it was sufficient that the injury would not have occurred if the vehicle had not been driven from one point to another and the distinguished 'the use' of the vehicle from 'the driving':

The mere fact that Mr Sutton's injury would not have occurred if the vehicle had not been driven from Port Hedland to Camp Tracy and then to Nifty or from Nifty to Port Hedland does not mean that, for the purpose of the Act, the injury to Mr Sutton was a consequence of the driving of the vehicle. The use of the vehicle to transport a heavy crane and a mine transport truck on bad roads was a necessary pre-condition for the sustaining of the injury. However, the injury was not a consequence of any feature of the driving of the prime mover and its attached load. The injury was not a result or effect of some feature of the driving of the vehicle. Taylor J's remarks in Butler (101), although phrased in terms of "cause" and "effect" rather than "consequence", are instructive in this context:

"[T] he cause of an event is not established in the legal sense by showing, without more, that in the absence of a proved set of circumstances the event would or may not have happened, or, that a proved set of circumstances, in the widest sense, contributed to the happening of the event."

Once it is understood that using the vehicle is not equivalent to the driving of it, it is impossible to hold that the injury to Mr Sutton was a consequence of the driving of the prime mover and low loader. His injury was not a consequence of any feature of the driving of the vehicle.

1. The above passages support the view that Container Handlers is also authority for the related proposition that 'but for' causation is not sufficient, that is, but for the vehicle being driven the incident would not have occurred.
2. In a passage relied on by the Commission, Callinan J, at [133], used the example of a situation where driving the vehicle over a long period has caused wear and tear in turn leading to the fracture of a mechanical part:

[The amendment in question in that case] was intended to cut down the expansive meaning which might otherwise, consistently with the approach in other cases, have been adopted. If it were otherwise, and "driving" were to be given the meaning that Container Handlers contends it to have, the relevant injury might be taken to have been sustained absent any negligent human agency in the driving of a motor vehicle; even if, for example, as a result of wear and tear flowing from the driving of it over a long period, an axle fractured while it was stationary in the garage and caused the body of it to collapse and fall upon a passer by. This would be a highly unlikely and unintended result. What is required is more than a sine qua non.

1. I note the factual distinction between Container Handlers and Ms Burton's case. While in both cases the injury occurred when the car was stationary, in Container Handlers the wear and tear related failure occurred immediately before the injury while the prime mover was stationary. In Ms Burton's case the failure of the coolant system occurred while the car was moving.
2. Nevertheless the issue is similar -whether it is enough that the failure occurs because the vehicle has been driven or whether more is required such as some feature of the driving. The analysis remains apposite in my view and supports a conclusion that 'but for the driving' causation will not be sufficient; and some feature of the driving must have directly caused the incident.

1. The decision in Billett, relied upon by the applicant, is consistent with the above in my view. In Billett, Kaye J found that the driving had been causative of the accident because Mr Billett failed to properly apply the hand brake, and had left the vehicle in gear.
2. At [17] His Honour considered whether the 'but for" test is sufficient:

In the present case, based on the "but for" test, a number of antecedent factors may have played a causative role in the happening of the respondent' injury. In such a case it would be erroneous to apply the "but for" test as the sole determinant whether the incident which caused injury to the respondent was directly caused by the driving of the vehicle. Thus, if the Tribunal did apply the "but for" test as the exclusive test of direct cause it would have erred in doing so.

1. Although Kaye J was not required to determine the question, at [33]-[35] His Honour considered whether it would be open to the tribunal to conclude that the incident was directly caused by the driving of the vehicle, if the sole features of driving were to be confined to the actual driving of the vehicle from the shed to the position in which it was parked.
2. His Honour concluded:

In my view, if it were necessary for me to so decide, I would conclude on the facts of this case, that the mere fact of parking the truck at an angle to the station wagon would not be sufficient to constitute that act of driving as a direct cause of the incident. I agree with the submissions of Mr Beach that, based on that circumstance alone, the driving was not a direct cause of the incident. The direct cause of the incident was the truck suddenly lurching into motion when the ignition was started. That motion - resulting from the ignition being turned on while the handbrake was off and the gear engaged - had nothing to do with the angle on which the vehicle was to the station wagon. Certainly "but for" the physical relationship of the truck to the station wagon, the accident would not have occurred. However that was not a direct cause of the accident in the sense discussed in the authorities. [35]

Further, I agree with Mr Beach that the case of Pederson in Treloar would be distinguished; there was a close temporal relationship between the driving and the accident in that case, which did not exist in the present case. In this context, the appellant's submissions would be fortified by the recent decision of the High Court in Insurance Commission of Western Australia v Container Handlers Pty Ltd to which I was referred by the appellant.

1. I note that in Mr Pederson's case, the injury occurred close in time to the cessation of movement of the bus. In terms of the temporal relationship between the driving and the injury, Ms Burton's case is closer to Billett than to Pederson. But in terms of the temporal relationship between the driving and the incident, Ms Burton's case is closer to Pederson. In Pederson, however, the place at which the bus had stopped - a rough cobbled gutter - was a relevant feature of the driving.
2. In both Jewell and Treloar (Mrs Bizewski's appeal), the court found that leaving the car in car can be a relevant feature of the driving sufficient to connect the driving with the incident or injury.
3. In Jewell, Tadgell and Ormiston JJ found that the incident was a transport accident because it arose directly out of the respondent's driving of the truck, in the sense that it arose out of the fact that he left it in gear after driving it. This conclusion was not altered by the fact that the incident also arose out of the turning of the ignition key.
4. In Mrs Bizewski's case in Treloar, the court's view was that if Mrs Bizewski had unintentionally placed the vehicle in the incorrect gear when she parked, the tribunal would be entitled to conclude that her injury was caused by her driving of the vehicle.

1. In Monahan, the tribunal considered Iacuone at [43] to [50] and set out a summary of the law at [48]. The tribunal inferred that the metal strap had fallen off a moving vehicle as a result of an act of driving.
2. No particular feature of the driving was identified, nor could it be in circumstances where nothing was known about the driving of the motor vehicle.
3. Monahan is relevant because it concerned something on the road that, the tribunal inferred, had fallen off a car or truck while it was being driven, and the injury was caused some time after the incident which led to the strap being on the road. But there are a number of differences in the two cases, in my view.
4. In Ms Burton's case, it is not necessary to draw an inference as to how the coolant fluid came to be on the car park floor. Unlike in Monahan, all the relevant facts are known, including relevant information about how the car was being driven at the time.
5. A further difference, in my view, is that Ms Burton's case concerns an incident - the coolant leak - known to have resulted from a mechanical failure. Nothing fell off the vehicle as a result of any feature of the driving such as its speed, or anything the driver did, such as failing to secure the load.
6. Although it is not certain, to the extent that Monahan was decided on the basis that the mere act of driving was a sufficiently direct cause of the metal strap being on the road, and Ms Monahan's injury, I would respectfully disagree that that is sufficient, on the basis of the case law referred to above.

Applying the statutory definition to the primary facts

1. Ms Burton submits, in essence, that the liquid leaking from the vehicle onto the floor of the car park was directly caused by the driving of a motor vehicle because Ms Cahill was driving her car at the point in time where the top hose outlet failed; had Ms Cahill not been driving the car the failure would not have occurred; the failure occurred 'in the event of' driving.
2. I agree with the submission that but for the driving of the vehicle, the incident would not have occurred. As is evident from the case law, however, 'but for' or sine qua non causation is not sufficient.[Container Handlers, Billett]
3. The fact that the incident occurred 'in the event of' driving is not sufficient. While there was in this case a temporal connection between the incident and the car being driven, the Act does not define a transport accident as an incident occurring 'in the course of' driving; it requires the incident to be 'directly caused by' the driving. More is required than that the incident have a connection with the use of a motor vehicle, or arise out of the driving of a motor vehicle.
4. Further, there must be some feature of the driving that directly causes the incident. I agree with the submission of the Commission that there does not need to be an act of negligence on the part of the driver but here, other than the mere fact of Ms Cahill driving her car at the time, there was no discernible feature of the driving that directly caused the incident. Ms Cahill was driving her car in the normal course, in an unexceptional way, consistent with a driver in a shopping centre car park looking for a car space.
5. The incident here did not occur because of speed or inattention. Unlike in Iacuone, where it was common ground that the collision with the tree (and therefore the presence of glass on the ground) had been caused by the driving of the motor vehicle, there was no collision causing fluid to leak. While there does not need to be a collision for there to be a transport accident, there must be some feature of the driving that directly causes the incident, other than the mere fact of driving from A to B [Billett, Container Handlers].
6. Unlike in Billett or Jewell or Mrs Bizewski's case in Treloar, the incident did not occur because Ms Cahill left the handbrake off or started the ignition when the car was in gear.
7. I have considered the submission of Ms Burton that if a 'feature' of the driving is required, then the fact that Ms Cahill drove the car on a hot day, with low wind, up an incline, would meet the requirement. I am not satisfied that this would be sufficient; it is more in the nature of a decision to drive in particular conditions than a feature of the driving itself in the meaning given to 'feature' in the cases.
8. Further, even if the fact that Ms Cahill drove her car, in the particular conditions or otherwise, was a sufficient 'feature' of the driving, I would not be satisfied that it was a direct cause of the incident in the sense given to those words in the cases.
9. It is clear from the cases that 'caused by' connotes a causal relationship more approximate or immediate than the words 'arising out of', and that 'directly caused by' connotes a causal relationship more proximate and immediate than 'caused by'.
10. I respectfully agree with Mandie J in Iacuone that the expression 'directly caused by 'is not tautologous, and that while in many cases, it may make little difference given that 'caused by' itself requires the identification of a direct or proximate cause, in this case, in my view, it makes a difference.
11. I agree with the submission of the Commission that while the circumstances of this case might have been caught by the original form of the Act - which allowed claims for an accident arising out of the use of a motorcar, the clear intention of the reductive amendments made since that time has been to narrow the scope of the phrase 'transport accident' to exclude incidents caused by or arising out of the use of a motor vehicle, and 'arising out of the driving' of a motor vehicle. In my view, in this case there is a connection between the use of the car and the incident but the driving is not a direct cause of the incident.
12. Contrary to Ms Burton's submission, the fact that failure at some point was inevitable, without Ms Cahill doing anything other than driving, is relevant here. Normal wear and tear in the course of driving over an extended period of time will, as I have found, inevitably cause the failure of the part in question. The radiator was at the end of its natural life.
13. While driving on the day was a cause, it was an indirect cause in my view - a causa sine qua non but not a direct cause within the meaning of the words in the definition. Although a cause need not be the sole cause of the incident, it must still be more than an indirect cause.
14. In my view, as a question of fact, the predominant and operative cause - the 'root cause' - of the coolant leak (referring to the second of the four matters considered by the tribunal in Iacuone) was the fact that the radiator was at the end of its natural life.
15. Stepping back from the intricacies of the case law to do with causation, and referring to the third of the four matters considered by the tribunal in Iacuone, a reasonable person applying common sense to the facts in this case, would not, in my view, regard the driving of the motor vehicle as the cause of the applicant's injury.
16. Instead, in my view, a reasonable person would regard the cause of Ms Burton's injury as the leak of coolant fluid from a car which had broken down because the radiator had 'blown'.
17. For these reasons, in my view the direct cause of the incident was the age of the radiator and the part in question. The driving of the car was not a direct cause.
18. As submitted by Ms Burton, the fact that wear and tear is involved does not necessarily preclude an incident being a transport accident. The submission referred to the example of a wheel coming off a moving car and causing injury. Depending on the facts and the cause, and depending on the circumstances in which the person was injured, a court or tribunal might find that such an incident met the definition of transport accident. My decision is confined to the facts of this case.
19. It would be an unlikely and unintended result, however, in my view, if the definition of 'transport accident' included an incident in which a car broke down because of mechanical failure caused by wear and tear and fluid leaked from the car because of the mechanical failure.
20. It would also be an unlikely and unintended result if a passer-by, injured because he or she later slipped in the fluid, were found to have been injured because of a transport accident. If it were so, then in theory, any person who slips in an oil leak that is on a garage floor because a car has leaked oil because of a failure of a part of the engine, because the engine is old and worn, might be entitled to compensation under the Act.

1. For the reasons above, I am not satisfied that Ms Burton has proved that she has an entitlement to compensation under the Act. The decision of the Commission will therefore be affirmed.

[4] There was uncontested evidence that the temperature on 22 January 2015 at Melbourne was 35.8°.

[6] As summarised in the headnote to the case.

[7] I agree with the submission of Ms Burton that the case of Porter is not directly relevant to the analysis here. The injury in Porter was not caused by a single incident but rather by 'a thousand jolts' impacting on the plaintiff's back. Here, there was a single incident.

[8] I note that a subsequent amendment to the Act (s 3(1A)(d)) included in the definition of 'transport accident' an incident involving the opening or closing of the door of a bus.

[9] (1996) 15 WAR 434 at 462.

[10] Quoted at p 506-507 of the court's decision.