1 The decision of the respondent is set aside.

2 The incident on 28 February 2000 was directly caused by the driving of a motor vehicle.

3 Reserve costs.

Mr I Fehring of counsel, instructed by Maurice Blackburn Cashman

1 This is yet another proceeding that gives rise to the question of whether, in the circumstances that arose, the applicant was involved in a transport accident within the meaning of the Transport Accident Act 1986 (the Act).

2 On 4 March 2005, the respondent decided that the applicant was not involved in a transport accident within the meaning of the Act on 28 February 2000 (decision). This is a review of the decision.

3 The applicant was a truck driver driving a truck which was used exclusively for carrying logs that had been felled by forest workers cutting timber.

4 On 28 March 2000, at about 8:15 am, the applicant was driving on a bush track off Seaview Ridge Road, Hallet Hill, near Colac, in the Otways Beach Forest, as part of his employment. He drove to the end of the track to what is known as the campsite of the logging coupe and did a u-turn because there was no one present at that spot. He then proceeded to drive up a hill. He then describes in his witness statement what happened :

3. THAT I was picking up a second load of timber on a bush track in the Otways Beach Forrest. ....

THAT out of corner of my right eye I saw something fall.

THAT I was moving forward at approximately 15km per hour and I was moving up hill. When I saw the tree coming at me I jammed the gears into reverse. I had moved back 3 to 4 feet when I was hit by the falling tree.

THAT the main part of the tree hit the bull bar of the truck and the branches lowered the left hand side of the cabin and the right hand side of the bonnet.

THAT my head was three inches from the roof. I leant left to put gears into reverse.

THAT the truck had a Eldorado air seat which catapulted me upwards because the truck was being forced downwards.

THAT I struck my head on the roof of the cabin. I didn't lose consciousness.

5 A Mr Mekken, who is a tree feller, made a statement but was not called for cross-examination. By consent the statement was admitted into evidence. Mr Mekken, inter alia, stated in that statement :

... There were only two trees left in that particular area where I was working.

I had started cutting both of the trees down, as they were tangled together in the heads, and I had to fall them together. I had cut back both of the trees, and I was wedging them over. I was using plastic logging wedges, and the trees were about two metres apart.

I had seen a logging truck, a Kenworth Anteater, driven by David Havis, known as Jibber, driving what was a Day's Haulage truck, with a single jinker trailer....

It was about 8.30 a.m. when I saw Havis drive past, and there is a turning circle further down the hill. He turned his truck around and drove back to opposite where I was working. I was working about 20 metres from the track. ...

The track was on a slope, about 10 degrees grading, and straight where the truck driven by Havis stopped. The truck had turned around and was approaching where I was working. I saw the truck stop on the track, with his motor going, just as the trees started to fall towards the track. ... I saw Havis' truck stationary on the road, and the head of both trees went over the right hand driver's side front towards the passenger side of the cabin. ..

Havis was still in the cabin when the trees hit the cabin and his truck engine was still operating....

I don't think Havis was reversing his truck at the time of the accident. Although he told me that he attempted to reverse as he saw trees falling towards him.

6 I observed the applicant in the witness box, and observed him to be an honest and forthright witness. Unfortunately, I was not given the same opportunity as regards Mr Mekken. The applicant repeated with some certainty that his vehicle was travelling between 10 and 15 kms per hour when he saw the tree about to fall and that he put it into reverse gear. After observing the applicant, I have no reason to disbelieve the truth of that statement, and where there is a conflict between the evidence of the applicant and the evidence of Mr Mekken, I prefer the evidence of the applicant, in part, because I have seen him cross-examined and I was impressed with the evidence he gave.

7 Having accepted the applicant's version of events, it is alleged that the applicant received injury as a result of being catapulted upwards by the air seat in the truck. This caused the applicant's head to hit the ceiling of the truck. I infer that the catapulting of the applicant was caused by a combination of factors being the truck jolting as a result of the rough track upon which it was being driven, the truck suddenly going into reverse and the tree falling. I infer the track was rough because that is the condition of most such tracks in this country.

8 Section 35(1) of the Transport Accident Act 1986 states :

(1) A person who is injured as a result of a transport accident is entitled to compensation in accordance with this Act ...

9 "Transport accident" is defined in s 3(1) of the Act as follows :

an incident directly caused by the driving of a motor car or motor vehicle, railway train or tram.

10 Pursuant to s 76(2) of the Act alters the normal position in administrative matters in this Tribunal that there is no onus of proof. That section states as follows :

A person claiming to be entitled to receive compensation under Part 3 during the first 18 months after the transport accident or under Division 1 of Part 10 bears the onus of proving the entitlement.

11 I must now decide whether the applicant was involved in a transport accident within the meaning of the Act, on 28 February 2000 between approximately 8:15 and 8:30 am (the incident).

12 Ms Magee, counsel for the respondent, submitted that a direct cause of the incident was a falling tree not the driving of the motor vehicle. Put another way, Ms Magee stated that the incident was not directly caused by the driving of the motor vehicle. She said the cause of the incident was the tree felling which resulted in the tree falling on the truck. She stated that the role played by the truck and by any driving was "entirely incidental".

13 Ms Magee stated four principles which she said are derived from Transport Accident Commission v Treloar and Ors [1992] VicRp 31; (1992) 1 VR 447. She stated those principles to be :

(a) that an incident indirectly caused by the driving of a motor vehicle is insufficient;

(b) that it is not enough that the incident have a connection with the use of the motor vehicle, but it must have a connection with its driving;

(c) that the word "driving" is thus to be used in its ordinary sense;

(d) that there must be a direct and sufficient non-coincidental nexus to enable it fairly to be said that the incident arose directly out of the driving.

14 In that case, McGarvie and Gobbo JJ stated at p 452 :

In a passage cited in Transport Accident Commission v Hoffman [1989] VicRp 18; [1989] VR 197, at p 201, Windeyer J said : "The words 'injury caused by or arising out of the use of the vehicle' postulate a causal relationship between the use of the vehicle and the injury. 'Caused by' connotes a 'direct' or 'proximate' relationship of cause and effect. 'Arising out of' extends this to a result that is less immediate; but it still carries a sense of consequence. It excludes cases of bodily injury in which the use of the vehicle is a merely casual concomitant, not considered to be, in a relevant causal sense, a contributing factor": Government Insurance Office (NSW) v RJ Green & Lloyd Pty Ltd [1966] HCA 6; (1966) 114 CLR 437, at p 447.

15 In Larson v Transport Accident Commission [2004] VCAT 537 (4 February 2004), his Honour Judge Bowman was called upon to decide whether the applicant who was a motorcyclist, was involved in a transport accident, after she had been charged by a cow while on her motorcycle. His Honour referred to a number of important authorities in relation to the definition of "transport accident" in s 3 of the Act, which authorities have been exhaustively analysed in the numerous cases that have been decided on this point. In my view, his Honour has provided a useful summary of many of those cases. At paragraph 47 ff of his decision, his Honour Judge Bowman sets out his summary of the various authorities which have been decided. It is sufficient for the purposes of this decision if I reproduce his Honour's summary without making my own. His Honour stated :

47. Firstly, the general principles set out by the majority in Treloar and referred to in paragraph 18 hereof should be applied. In particular, I agree with the emphasis which Mr Moulds placed upon the fourth of the principles set out therein - namely, that there must be a direct and sufficient non-coincidental nexus to enable it fairly to be said that the incident arose directly out of the driving, or, in the present case, that it was directly caused by the driving.

48. Secondly, as stated by Tadgell J in Jewell [1995] VicRp 22; (1995) 1 VR 300 at p. 306, it is difficult to enunciate a general proposition the application of which will provide a ready solution in any case. Whilst Tadgell J was there referring more to the words "arising out of", the same could be said of attempting to enunciate such a test in relation to the use of the words "directly caused by". As was said by the majority in Treloar at p.453:-

"It would fly in the face of experience to attempt to formulate tests by which the boundaries are to be drawn, under the present definition, between incidents directly caused by, incidents directly arising out of and incidents neither directly caused by nor directly arising out of the driving of a motor car."

49. A somewhat similar statement was made by Parker J in Sinfein Pty Ltd (1996) WAR 343 at p. 461 as follows:

"The ultimate question is always whether the defendant's conduct is, as a matter of common sense and experience, properly to be seen as having caused the relevant injury or death".

50. A similar approach was also adopted by Smith J in Jewell. At p. 316, having discussed the views of the majority and of Brooking J in Treloar, he stated as follows:-

"It is not possible to define the test further. It is possible, however, to identify matters that would be relevant. They would include whether there were intervening factors, and their nature, and the period of time that elapsed between the driving and the incident. It would also be relevant to consider the significance of the driving as a causal factor. This was the view of the Court of Appeal in the matter of R v Criminal Injuries Compensation Board; Ex Parte Ince (1973) 1WLR 1334 at 1341, 1344 where the phrase "directly attributable" was considered. To consider the significance of the alleged cause would be consistent with the view of the majority of the Full Court in Treloar's case that the nexus must be "sufficient".

Ultimately a commonsense approach has to be taken to the determination of the question and to succeed an applicant must demonstrate a causal connection between the driving and the incident that can be said to be one resulting in the incident arising directly out of the driving."

51. Accordingly, it seems to me that there is no hard and fast test that can be applied so as to establish whether an incident is directly caused by the driving of a vehicle. In their detailed consideration of the meaning of the words, and similar words, neither Brooking J in Treloar nor Tadgell J in Jewell propounded any test. The commonsense approach referred to in the above quotations seems to be appropriate. Further, as stated by Mandie J in Iacuone [1998] VSC 192; (14 VAR 464) at paragraph 33:-

"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."

52. The next matter of general principle is a somewhat obvious corollary of what has just been stated in relation to the adopting of a common sense approach. To adapt slightly the words of Dawson J on the leave application in Sinfein Pty Ltd, the cases turn largely upon their own facts. As was said by Beach J in Ross ((1999) [2000] VSC 112; 16 VAR 421) at paragraph 15, where he also referred to the decision of Mandie J in Iacuone at paragraph 33 :-

"In any event whether an injury or incident was directly caused by the driving of a motor car is a question of fact."

53. Accordingly, an analysis of the facts in the individual case is a vital ingredient, if not the vital ingredient, in determining whether an incident was directly caused by the driving of a motor vehicle.

54. Further, the driving does not have to be the sole cause of the incident. Indeed, as stated by Mandie J in Iacuone at paragraph 34:-

"...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 ...."

55. The above observation is an interesting one. The concept of there being more than one direct cause does not seem to me to sit comfortably with the approach that the direct cause means the predominant cause, if that in turn means to be more dominant than any other cause.

16 Subsequent to Larson's case being decided, the High Court determined the matter of Insurance Commission of Western Australia v Container Handlers Pty Ltd [2004] HCA 24; [2004] 218 CLR 89. In that case a passenger was assisting the driver of a truck in attempting to repair the vehicle. The vehicle had been halted during the course of its journey and was jacked up on the roadside when the jack slipped pinning the passenger's hand and injuring him severely. At p 113 ff, paragraphs 64 and 65, McHugh J considered the meaning of the phrase "directly caused by":

It is true that, if death or injury is directly caused by the vehicle, it is not necessary that it be directly caused by the driving of the vehicle. It is sufficient if the death or injury is a consequence of the driving. Whichever limb of the indemnity is invoked, however, the legislative history and purpose of the Act demonstrate that there must be a causal link between the death or injury and some feature of the driving of the vehicle. 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.

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.

17 In that case, there was a far less temporal connection between the injury and the driving, than in this particular instance, where there is a close temporal connection and nexus between the driving and the injury. Mr Havis was driving the vehicle when he saw the tree about to fall and put the vehicle into reverse, which he thought would help the situation. Thus, there was a direct temporal cause between the driving of the vehicle and the tree falling. This is a different situation from what the High Court was looking at, which was an injury which was caused by the actual truck itself rather than while the truck was being driven. This type of temporal connection was considered by Kaye J in Transport Accident Commission v Billett [2004] VSC 406 (15 October 2004) (see paragraph 35 of that case).

18 Further, in this instance, the applicant was allegedly injured by his head hitting the ceiling of the cabin of the truck. I have already found that that was caused in part by a combination of factors, that is, the rough track, the vehicle suddenly being placed in reverse and the tree falling. Both of the first two causes mentioned are similar to what was referred to by McHugh J - that is - "running into potholes" and "driving at excessive speed". In this case being the rough track and the vehicle changing into reverse. Thus this situation falls within what his Honour referred to as a "feature of driving".

19 In Billett's case, a truck had been stopped and was stationary for approximately one hour and the engine had been turned off for half an hour. Upon some repairs being completed, Mr Billett opened the door of the vehicle and turned on the engine, the gears having been engaged with no hand brake on, the vehicle moved thus injuring Mr Billett. At paragraph 32 of that decision, his Honour stated :

Accordingly, I accept the submission on behalf of the respondent that the appellant ought not be permitted to contend, on appeal, that the Tribunal erred in treating the failure of the respondent to disengage the gears and to properly engage the hand brake as features of the driving of the vehicle. It was not contended before me that if those matters were features of driving of the vehicle, then the Tribunal erred in finding that the driving of the vehicle (including those features) approximately one hour before the incident was a direct cause of the accident. In any event I am satisfied that such a conclusion was reasonably open to the Tribunal as a matter of fact. As observed by Mandie J in Iacuone's case, such a finding of fact will be one on which reasonable minds might differ, but it is not for this Court to decide the question of fact for itself; it is sufficient if such a conclusion of fact was open to the Tribunal as a reasonable tribunal. In my view, it was so open. In other words it was reasonably open for the Tribunal, as a matter of fact, to find that in the circumstances of this case the parking of the truck at a particular angle in relationship to the station wagon, together with the inadvertent leaving of the truck in gear and the failure to apply or sufficiently apply the hand brake, collectively directly caused the incident in which Mr Billett was injured.

20 Applying the principles stated by Kaye J to the present situation, in my view, it is reasonably open for me to find that the incident was caused directly by the driving of the vehicle. To make such a finding, I do not need to find that the driving was the only cause of the incident or that the driving was the predominant cause of the incident. In my view, it is sufficient to satisfy the definition in the Act that the driving being a direct cause of the incident. His Honour Judge Bowman, in Larson's case, considered this very matter at paragraphs 56 and 57. There his Honour stated :

56. .... Regardless of the outcome in this case, I am not persuaded that the law in the State of Victoria is that these "direct causes" have to be rated and that the driving must be established as the top-rating direct cause. It seems to me that the basic question to be considered is that which is consistently referred to, in various wordings, in the authorities. It is the proposition initially advanced by Mr Moulds in reliance upon the majority position in Treloar, and subsequently advanced by many other judges including Smith J in Jewell and Mandie J in Iacuone. This, in turn, gets back to the basic facts and whether, upon the basis of such facts, there is such a direct and sufficient non-coincidental nexus to enable it fairly to be said that the incident was directly caused by the driving.

57. Having set out matters of general principle, one matter of particular application should now be stated. It was alleged by Mr Keogh, and not effectively challenged, that a vehicle need not be moving in order for driving to be taking place within the meaning of the Act. This is perfectly consistent with many authorities, including the decision of Pedersen contained within Treloar. Indeed, as I understand it, the whole thrust of Mr Moulds' argument was not that driving was not occurring, but that driving was not directly causative of the incident. In any event, I find that a person who is seated in the driving seat of a vehicle which has its motor running, and particularly when such person is operating the controls so as to engage a gear and move away, is driving. This seems to me to be consistent both with the authorities and with common sense. Were it otherwise, a person seated behind the controls of a motor vehicle and stationary at traffic lights, would not be driving if, for example, a tree then blew over and landed upon the vehicle. It is totally illogical, and contrary to the authorities, that this should not constitute driving, whereas, if the car were moving when the tree fell upon it, that would constitute driving.

21 It is clear from the example given by his Honour that it is on all fours with this particular instance. His Honour said that that does in fact constitute driving and by implication of what his Honour said, the driving would be the cause of the incident. Further, I note that at paragraph 52 which I have already quoted, his Honour refers to the decision of Justice Mandie in Iacuone and states :

In any event, whether an injury or incident was directly caused by the driving of a motor car is a question of fact.

22 Mr Fehring submitted that when looking at perhaps several causes of the incident, it would be wrong to separate them into minute detail. He said the proper approach was to look and see if the driving was a direct cause of the incident. If the driving was a direct cause of the incident, then it does not matter if there are other causes which, in this case, was the falling of the tree. I agree with that proposition. While in this situation, it cannot be denied that the falling of the tree was one of the causes of the incident but, in my view, it equally cannot be denied that the driving of the vehicle was also a cause of the incident. Having a tree fall on a motor vehicle when driving, is as much part of the driving of a vehicle as running into a ditch or running over a cliff, particularly in the circumstances here where the road was rough and the truck was suddenly placed into reverse.

23 Ms Magee suggested that there was a distinction between a tree falling as a result of some natural cause, and the tree falling in this case as a result of Mr Mekken's interference. She suggested that the situation in this case is more akin to the incident which Beach J had to consider in Ross v TAC [2000] VSC 112; (1999) 16 VAR 421. That case concerned an incident where the plaintiff was shot by a bullet while driving in a motor vehicle. At p 423, his Honour stated :

The shooting of the plaintiff was not directly caused by the driving of a motor car. The shooting of the plaintiff was directly caused by the action of the person in possession of the gun, pointing the gun at the plaintiff and pulling the trigger. The fact that he was sitting in a moving motor car at the time he did so was not a cause of the shooting; nor would it have been a cause of the shooting if he had been driving the car.

If one asked the plaintiff - 'What caused your injuries?' I have little doubt that he would reply 'Someone shot me'.

In any event, whether an injury or an incident was directly caused by the driving of a motor car is a question of fact. See the decision of Mandie J in Transport Accident Commission v Iacuone.

24 In my view, someone being shot while in a moving motor vehicle, is very different to having a tree being felled falling upon a moving motor vehicle. Shooting is a deliberate act of pulling the trigger with the intention of injuring someone. On the other hand, felling of a tree was an every day event that may occur in a logging coupe. There was no intention to injure someone, it was just an accident. Applying the test that Beach J did in Ross if one was to ask the plaintiff in this proceeding, "What caused your injury?", I have little doubt that he would reply "While driving a tree fell upon me".

25 Thus, I do not believe that Ross's case takes the respondent's argument any further here.

26 Ms Magee also referred me to a recent decision of Senior Member Megay in this Tribunal in Kaan v Transport Accident Commission [2006] VCAT 234. That case concerned a passenger being injured when a windsock came dislodged from its pole and blew into the windscreen of the motor vehicle. There, the Senior Member found that the applicant's injuries did not arise directly out of the driving of the motor vehicle but arose out of the dislodgment of the windsock. At paragraph 17 the Senior Member referred to the dictum of McHugh J in Insurance Commission of Western Australia v Container Handlers Pty Ltd and stated :

As McHugh J said, it is not enough that the injury be the result of the use of the vehicle. As the cases suggest, the vehicle must be something more than a mere platform for the events. It is not enough that a car be involved; the incident must be directly caused by some feature of the driving for the legislation to be satisfied.

27 Kaan's case is distinguishable from the present because of the rough bush track and putting the truck into reverse played some part in the applicant hitting his head on the ceiling of the truck. Further, in my view, in Kaan's case, the Senior Member did not pay sufficient attention to the temporal connection that existed between the dislodgment of the windsock and the driving of the motor vehicle.

28 It seems to me that there is a direct conflict between the decision of Judge Bowman in Larson's case and the decision of Senior Member Megay in Kaan's case. Having examined the reasoning in both cases, I prefer the reasoning of his Honour Judge Bowman. To try and say in this case that the driving of the motor vehicle was not a direct cause of the incident, is what Mr Fehring said, "Not seeing the wood for the trees". This saying is particularly appropriate given the circumstances of this case.

29 Under those circumstances, I intend to find that the incident that occurred on 28 February 2000 while the applicant was driving his motor vehicle, was an incident that was directly caused by the driving of a motor vehicle. It should also be noted, lest it be thought that I was paying insufficient attention to the decision in the High Court of Insurance Commission of Western Australia v Container Handlers Pty Ltd, that that matter concerned different legislation which had different wording to the present legislation to which I am concerned.