1 The applicant in this matter was eleven years old when he was involved in an incident on the Western Ring Road. He was a front-seated seat-belted passenger in a vehicle driven by his father on an area of the road known as the E J Whitten Bridge. Whilst approaching the Melbourne end of the bridge, a windsock at that end of the bridge broke free and flew into the windscreen of the Mr Kaan's car, smashing the windscreen. In Mr Kaan's words he "slammed on the brakes and pulled over in the emergency lane. The inside of the car was showered with particles of glass. The rear view mirror had detached and hit me. I saw that my son was covered in blood and glass." The incident was witnessed by Mr Michael Parker who was travelling behind Mr Kaan.

2 Police and ambulance attended the scene. Later in the day Mrs Kaan took the applicant to the emergency department of the Western General Hospital in Sunshine and later on to the Eye and Ear Hospital. According to the notes produced by the Eye and Ear Hospital there were no foreign bodies in either eye and there was a note indicating "eyes washed out at Western Hospital."

3 On 3 September 2004 the respondent wrote to Mr Kaan senior and informed him of its decision. The relevant parts of the letter are as follows:

It is the TAC's view that the facial lacerations suffered by Sinan were not directly caused by the driving of a motor vehicle, but more as a result of the impact of the windsock hitting the windscreen.

The TAC accepts that any injury caused by the heavy braking of the car would be directly caused by the driving of a motor vehicle however the TAC does not have any proof that Sinan suffered any injury as a result of this incident.

4 The applicant seeks to review that decision and the first question for determination is whether the incident was a "transport accident" as defined in the Transport Accident Act 1986 ("the Act").

5 Section 3 (1) of the Act defines a "transport accident" to mean "an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram."

6 Counsel for the applicant submitted that the windsock was not the only cause of the accident, the other was the driving of the vehicle. He submitted that it was unnecessary for the Tribunal to decide whether the driving was the predominant cause. The thrust of his argument was that because the car was being driven, that constituted a direct link on the question of causation.

7 Both counsel referred me to a number of cases and I will attempt to summarize them in brief and in chronological order.

8 The first of these was a decision of Mandie J in Transport Accident Commission v Iacuone [1998] VSC 192; (1998) 14 VAR 464. In that case, Mr Iacuone had assisted at an accident scene where the windscreen of a vehicle had shattered when the car hit a tree. He attended the scene in bare feet, cut his foot when he trod on a glass fragment and subsequently claimed he had been injured in a "transport accident." In his judgment his Honour traversed some of the court's earlier decisions (arising out of earlier versions of the legislation) and remarked that a number of propositions remained relevant under the legislation as it presently exists. He summarized them as follows-

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whether an injury (or incident) was one "directly caused by the driving of a motor car" is a question of fact;

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the words "caused by" (even in the changed context) connote a "direct" or "proximate" relationship of cause and effect;

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the words "directly caused by" do not mean "solely caused by";

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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 motor car;

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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;

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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.

9 In considering the effect of the word "directly" in the expression "directly caused by" his Honour considered a number of cases and continued as follows -

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 that 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 a purpose, the expression "directly caused by" is not tautologous......It is a question of degree, however, in most cases, it may make little difference, given that "caused by" itself requires the identification of a direct or proximate cause.

10 The next in the catalogue of cases is Ross v Transport Accident Commission [2000] VSC 112, a decision of Beach J. In that case Mr Ross was driving his car along the Geelong/Portarlington Road, another car drew alongside and someone in that car shot Mr Ross. He argued that the injuries he sustained were a product of the driving. In his short judgment his Honour noted that in the decision appealed from, the Tribunal member had said that "that car may have provided a platform but it did not cause him to do what he did. It might be argued that the shooting "arose out of" the use of the car because the car was used to accomplish it but the car was not in my view a direct cause, much less the causa causans of the shooting." In affirming the decision Beach J stated -

The shooting of the plaintiff was not directly caused by the driving of the 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."

11 Destanovic v Transport Accident Commission was a decision of Deputy President Galvin of this Tribunal delivered on 16 February 2001. In that case the applicant was a passenger in a moving train; she was injured when showered by glass as a result of a rock being thrown though a rear window near where she was seated. On rising to her feet, she moved to steady herself against the sideways motion of the train by attempting to grasp a pole close to her seat. Unsteadied by the movement of the train and she fell and was further injured when her body struck the pole. In his decision, Galvin FP stated -

It appears clear enough that the driving of the train was nothing more than a casual concomitant of the "broken window" incident. There was no evidence of any causal link between the driving of the train or any aspect of the driving of the train and that incident. It is equally clear that the incident in which the applicant stumbled because of the sideways movement of the train was directly caused by the driving of the train without which the train would not have been moving and the sideways motion which caused the applicant to fall would not have occurred. In regard to that incident there is a direct causal connection between the driving, the incident and the injuries.

12 Ms Forbes, who appeared for the Commission urged me to have considerable regard to the High Court decision of Insurance Commission of Western Australia v Container Handlers Pty Ltd & Ors [2004] HCA 24; [2003-2004] 218 CLR 89. That was a case involving the transportation of a truck on a low loader. While the low loader was being repaired, a jack slipped, the low loader fell and serious injury resulted. The legislation considered in this case had some similarities to the Victoria legislation but in fact the thrust of the case was whether the injury had been caused by the motor vehicle, it being conceded that it was not caused by the driving. However the relevant part of the judgment relates to the consideration of the phrase "directly caused by." The appellant submitted that the falling of the axle was not a direct (or even indirect) consequence of the driving of the vehicle and McHugh J then considered a range of cases including the older Victorian cases and at p.113 he commented as follows-

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 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 and the 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 the driving, because it led to the repair work which in turn led to the injury.

13 Next is the case of Larson v Transport Accident Commission [2004] VCAT 537, a decision of Judge Bowman of this Tribunal. This case involved a farmer on a motorised bicycle who suffered injury when a cow attacked the bicycle and she and the bicycle were pushed backwards and over the edge of the river bank. His Honour noted that having regard to the whole scenario, to the direct temporal connection between the driving and the incident, it seemed to him there had been established such a direct and sufficiently non-coincidental nexus to enable it to be said that the incident was directly caused by the driving.

14 In Transport Accident Commission v Billett [2004] VSC 406 (42MVR 66) the Victorian Supreme Court considered the case of a self-trained mechanic working on his son's truck. Whilst effecting the repairs he had the engine running but upon completion he turned the engine off. Some time later (an hour) he leaned into the truck to turn on its ignition, the truck lurched forward and the claimant was injured. The decision at first instance that the injury was caused by the driving was upheld.

15 Judge Bowman was also the author of the decision in Travis Auricht v Transport Accident Commission [2005] VCAT 2517. Mr Auricht was a farm worker perched on a potato seeder which was in turn drawn by a tractor. He was required to perch on the seeder to ensure that that seed potatoes did not build up and block the chutes. Mr Auricht slipped, his leg was trapped and injury occurred. It is a crucial part of the factual scenario that the entire operation of the seeder was controlled by and dependent upon what was happening in the tractor. The respondent argued that the direct cause of the injury was not the driving; rather it was the design of the potato seeder coupled with an unsafe system of work which led to the injury. His Honour found that the operation of the seeder was inextricably linked to the driving of the tractor and the operation of the seeder was inextricably linked to the incident of the injury and thus that the injury was directly caused by the driving.

16 Mr Dubrow urged me to have regard to the speed at which the vehicle was being driven at the time, that is, to speed as a particular feature of the driving as contemplated in the Container Handlers case. I was not persuaded by that submission for the reason that there is not a scintilla of evidence to suggest the car was being driven otherwise than within the allowable speed limit. He also urged me to have regard to the fact that Mr Kaan saw the windsock before it struck presumably on the basis that he might have attempted to avoid it. I was not persuaded by that either due to the contradiction in regard to this feature between Mr Kaan's written statement and his viva voce evidence before me.

17 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 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.

18 The decision of Destanovic is of course, entirely analogous - here there are two incidents just as there were in that case. The first is the windsock breaking free and striking the windscreen and the second is the act of braking sharply and pulling over. To use Deputy President Galvin's reasoning, it appears clear enough here that the driving of the motor vehicle was nothing more that a casual concomitant of the "loose windsock" incident. There is no evidence of any causal link between the driving of the motor vehicle or any aspect of the driving and that incident.

19 Insofar as the applicant suffered any injury from the smashed windscreen that is not an injury caused by the driving and thus not an injury suffered in a transport accident. The decision of the respondent in that regard is affirmed.

20 In its decision the respondent accepted that any injury caused by the heavy braking of the car would be an injury directly caused by the driving of a motor vehicle and it follows from what I have said that I agree. However the respondent took the view that it had no proof that the applicant had suffered any such injury and I was informed from the bar table that this matter had been earlier adjourned to enable such evidence to be sought.

21 The clinical notes from the treating general practitioner were produced pursuant to the subpoena and the contents were put to the applicant's father. Despite his rather vague answers it seems that that were no attendance on the practitioner from the date of the accident (27 October 2002) until 30 May 2003, and then only for a blocked nose. There were further attendances on 2 September 2003 and 11 December 2003 for unrelated matters and on 18 March 2004 (17 months post-accident) the doctor notes the following -

Since the accident he sleepwalks. Back pain, left groin pain, left leg. When the windsock hit the windscreen. Sleepwalks 2 per week. ? neuro opinion.

22 When questioned about any neurological opinion, Mr Kaan's evidence was singularly vague and I infer that no neurological opinion has been sought. Reports from Mr O'Brien (orthopaedic surgeon) and Dr Weissman (psychiatrist) throw no real light on the question of injury. In Dr Weissman's opinion, the applicant suffered some post traumatic stress and anxiety symptoms but whether they arose from the windscreen event or from the braking is not the subject of his report although it seems unlikely it would have arisen from the latter. Further I suspect that any attempt to apportion will have limited credibility.

23 Mr O'Brien tends to the view that there are no physical signs of obvious cervical or lumbar pathology and again he had no reason to differentiate between the two parts of the incident and it seems unlikely there could be a finding in relation to residual soft tissue injury. I accept his evidence that the applicant does not appear to be hindered by his particular symptoms, that there is no impairment in accordance with the Guides to the Evaluation of Permanent Impairment and that had the applicant suffered some mild soft tissue injury, one would have considered such pathology to resolve. In arriving at that view I am reinforced by the total absence of complaint to the long-standing general practitioner until 17 months had passed after the accident. I was not persuaded by Mr Kaan's evidence that he had taken his son to the doctor earlier than that.

24 What I did find troubling was the unresolved neurological referral. The applicant's father told the Tribunal he could not remember when the referral occurred, he could not remember to whom it was made, he could not remember if it was to Dr Lloyd Shield and the only enlightenment the Tribunal received was that the child's mother took the applicant to the Children's Hospital at some stage and beyond that he could offer nothing more. Certainly the respondent's first hint of any neurological problems was not until the doctor's notes were made available to it.

25 In my view the better course of action is for the neurological question to be explored properly if indeed there still exists such an imperative.

26 It follows that the first leg of the respondent's decision is affirmed and the second is partially affirmed but the matter is remitted to the respondent for reconsideration in accordance with these reasons.

27 The matter of costs is reserved.