3 The parties to file and serve any written submissions on or before 13 February 2004.

Mr A Keogh, instructed by Maddens Lawyers, for the Applicant.

Mr A Moulds, instructed by TAC Law Ltd., for the Respondent.

5 By agreement of the parties, this matter comes before me for a decision on a preliminary point. That preliminary point for decision is as follows. Was the incident in which the applicant - "Larson" - suffered injury a transport accident within the meaning of the definition contained in s.3 of the Transport Accident Act 1986 - "the Act"?

6 Larson asserts that it was, and, by a claim form dated 11 October 2002, is seeking the payment of benefits. Mr Keogh of counsel appeared on her behalf.

7 By a letter dated 9 January 2003, the Transport Accident Commission - "TAC" - refused to accept Larson's claim. The determination of TAC not to accept Larson's claim has a number of bases, and one of these relates to s.3 of the Act. Mr Moulds of counsel appeared on behalf of TAC.

8 The parties have sought that I determine this preliminary point and that, in so doing, I make the necessary assumptions required in order to arrive at a position where I can make such a determination, but without touching upon the other grounds for refusing the claim. In other words, in determining whether the incident is a transport accident within the meaning of the Act, I am to presume that all other requirements of the Act have been satisfied, but such presumption operates only for the purposes of the decision relating to this question.

9 In the context of the above, and as shall be discussed, comprehensive arguments were advanced by both counsel. However, before turning to them, I shall now set out the factual background of the matter.

10 The facts in this matter are somewhat singular. For the purposes of determining this preliminary point, they are also basically not in dispute. They have been gathered from the view, from the evidence taken whilst on the view, from the evidence given by Larson at the Tribunal, and from documents tendered. The evidence received at the Tribunal consisted of the tendering, by consent, of both parties' Tribunal books, which were not extensive, and of the notes taken by me on the view and, by arrangement, forwarded to the parties. As it was not possible to record the evidence taken on the view, with the agreement of the parties, I dictated a summary of what could be seen and what was said as the view was taking place, and forwarded the typed version to them. It was not suggested by either party that any corrections should be made. Larson's Tribunal book also contains selected photographs taken on the view, these also having been agreed upon.

11 At the resumed hearing, Larson also gave very brief additional evidence and was subject to brief cross-examination.

12 The facts thus arrived at are as follows. Larson, who is 36 years old, operates, with her husband, a dairy farm on the Colac-Carlisle Road, part of which farm abuts the Gellibrand River. On 26 May 2000, she sustained injury in the subject incident whilst on the farm and in a paddock which lies in a bend of the Gellibrand River.

13 At the view, considerable attention was focussed upon whether, for the purpose of ss.41A and 41B of the Act, the incident had occurred on private land or upon a river reserve open to members of the public. Whilst TAC has not abandoned reliance upon these provisions, I was informed by Mr Moulds on behalf of TAC that, at least for the moment, that issue had receded in significance and may well disappear altogether, as may the issue of whether or not a vehicle within the meaning of the Act was involved. In any event, whilst it was originally the subject of considerable investigation, I am now asked that, for the purposes of this ruling, I leave to one side consideration of ss.41A and 41B and assume that the incident and its consequences are not excluded from the operation of the Act by reason of those sections. I also leave aside consideration of the "vehicle" issue.

14 On 26 May 2000, Larson's husband was in hospital and she accordingly was in charge, alone, of locating and placing the stock. Shortly before 2.00 pm on that day, she received a telephone call from a neighbour concerning one of her cows which was calving. As a result, she got on to the "farm bike" - a type of 4-wheel motor cycle resembling a ride-on motor mower or very small tractor, and which was unregistered. It is propelled by an engine and has gears, brakes and the like. I shall refer to it as "the bike".

15 Following the receipt of the telephone call, Larson rode the bike across various paddocks and into the paddock in the bend of the river. The total distance covered was something in the order of 1 kilometre.

16 After entering the paddock which abuts the river, she found the cow lying under a tree close to the river. She stopped the farm bike some 8 to 10 metres from the river bank and on the river side of the cow. The presence of tree branches prevented her from getting closer to the cow. It had been her intention to get the cow to its feet and, if it could not rise to its feet, to return on the bike to the farmhouse and ring a veterinary surgeon. She had intended to get the cow to its feet by riding the bike sufficiently close to it to disturb it and thus move it to its feet. However, the position of the cow in relation to the low tree branches prevented her from getting sufficiently close to the cow whilst on the bike. Therefore she decided to get the bike as close as she could to the cow, and then dismount and approach the cow on foot.

17 She dismounted from the bike and left the motor running and the bike in the fourth forward gear. The bike does not move when it is in such a condition, as the throttle has to be applied to cause it to move either forwards or backwards.

18 Having dismounted from the bike, which was some 4 to 5 paces from the cow, she took 3 to 4 steps towards the cow, when it became very agitated. It rose to its feet and began acting in an aggressive fashion. Larson decided to leave the scene. She said words to herself to the effect of "I'm going" or "I'm out of here". I accept that her state of mind was such that she had two reasons for leaving immediately. Firstly, she wanted to get away from the cow and its aggressive behaviour and avoid any confrontation with it. Secondly, because of the peculiar behaviour of the cow, she wanted to get back on the bike, return to the farmhouse and immediately contact, and hopefully obtain the services of, a veterinary surgeon.

19 She returned to the bike and got back upon it. As stated, she had left the bike in the fourth forward gear. Because of the branches of the tree she needed to reverse out. This involved changing down through each gear from fourth gear to reverse, which in turn involved the pushing of buttons and, in order to get into reverse, the pushing of a red button, the holding on to the brake, and then the further pressing of the down arrow on the gear button. Whilst she was in the course of doing this - that is, operating the controls - the cow attacked the bike with her upon it. The motor was running throughout, but she had not reached the point of actually engaging reverse gear when the attack occurred.

20 I accept, and it was not disputed, that she wanted to drive away from the scene, had to engage reverse gear because of the position in which the bike was standing, and was in the process of doing this when the attack occurred.

21 The cow effectively lifted the front wheels of the bike off the ground and pushed the bike, with Larson on it, backwards and over the embankment into the Gellibrand River. The motor was continuing to run as this occurred. Larson remained seated on the bike until she and it toppled into the river. The level of water in the river was not great. Larson cannot recall whether she went directly into the water, but did end up very wet, so assumes that she did. The drop would be in excess of three metres, and apart from a couple of small trees of shrub size, there is nothing to break the fall. Her recollection of the precise circumstances of the impact in the river is hazy and far from complete. She remembers the fall, and a crunch and a splash. The bike ended up behind her. She cannot say whether it landed on top of her.

22 In any event, both Larson and the bike ended up in the river. Without going into great detail as to what then occurred, she ultimately crawled up the embankment and for a distance of approximately one kilometre towards a gate. She was unable to walk. She did not reach the gate, and was subsequently found by her children in a paddock at approximately 4.45 pm. She was conveyed to the Colac Hospital, and subsequently airlifted to the Austin Hospital. She there underwent two operations, one being a lumbar fusion from L1 to L3 involving a cage of bone being held in place with plates and screws in her back, and the other being an operation to repair her right anterior cruciate ligament. For the purposes of this ruling, I need not go further into the details of medical treatment, the path of convalescence, ongoing symptoms or the like.

23 It is against this background that the preliminary point - did this constitute a transport accident within the meaning of the Act? - must be determined.

24 Mr Moulds presented a typically thorough and well-researched argument on behalf of TAC. It hinged upon the meaning of the words "directly caused by" in the definition of "transport accident" contained in s.3 of the Act. He stated at the outset that the position of TAC was that this was a cow case rather than a car case. As he said at the time, this was not meant to be an attempt at humour, particularly bearing in mind the tragic consequences of the incident. It was an encapsulation and, I might say, a rather neat one, of the case put by TAC. The direct cause of the incident was the attack by the cow. The role played by the bike and by any driving was entirely incidental. The bike had conveyed Larson to the scene where the incident occurred. She had been on it, and remained on it, when it was pushed into the river. However, the direct cause of the incident and the resultant injury suffered was the attack by the cow and any driving involved was purely incidental.

25 Mr Moulds' argument then continued as follows. I am summarising it and trust that my summary does it justice.

26 The words "directly caused by" in the definition were introduced by way of amendment in 1988. The words "arising out of" were removed by amendment in 1994. Thus, at the time of the occurrence of this incident, for the definition to be satisfied the incident must be directly caused by the driving.

27 There have been a number of decisions and judgments relating to the meaning of the words in question, and as to whether the word "directly" adds anything of significance to the usual principles of causation. Three separate cases or situations were considered by the Appeal Division of the Supreme Court of Victoria in Transport Accident Commission v Treloar & Ors [1992] VicRp 31; (1992) 1 VR 447. In addition, some general principles were spelled out. These are, for example:-

(a) that an incident indirectly caused by the driver 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.

28 Of the three separate cases considered in Treloar, only the facts in Pedersen bear any relevant similarity of significance and that case represents the high water mark of the case for Larson. Even then, there are marked differences so as to render it of no great assistance to her. In Pedersen, there was no other or intervening cause of the incident. The driver parked the bus in an inappropriate position. The bus did not normally stop in such a position. Pedersen stepped from the bus onto unlit and irregular bluestone guttering. Pedersen suffered injury. There was no other factor or cause involved. There was no equivalent of the cow. Furthermore, the majority decision of McGarvie and Gobbo JJ was to the effect that the appeal should succeed because it was open to the finder of fact that the incident was directly caused by the driving of the bus. Brooking J dissented and did not find that the incident was directly caused by the driving. He also, in essence, differed from the majority in that he was more of the view that the adverb "directly" added something to the words "caused by", although he did not define the meaning of either the word or the phrase.

29 The wording also receives attention in the case of Transport Accident Commission v Jewell (1995) 1VR 300. In that decision, at pp.306 and 307, Tadgell J agreed with the remarks of Brooking J in Treloar, namely that the addition of the word "directly" goes further than spelling out what was previously implied. Tadgell J also pointed out that Brooking J did not define the extent to which an incident must be more proximate to the driving of a motor vehicle to be "directly caused" than it needs to be merely "caused" by the driving. It is conceded that it is also clear from that judgment that the definition does not require that the driving be the sole cause of the incident.

30 Further assistance is to be gained from the decision of the Supreme Court of Western Australia in State Government Insurance Commission v Sinfein Pty Ltd (1996) WAR 434, this decision again being a majority decision, and from the brief observations made by the High Court of Australia on the unsuccessful application by Sinfein Pty Ltd to obtain leave to appeal to that Court. Whilst, in the Supreme Court of Western Australia, Malcolm CJ dissented from the views expressed by Ipp and Parker JJ, some common views were also expressed. At pp.445 and 446, Malcolm CJ expressed the view that, in essence, the word "direct" equates to "proximate". At p.452, Ipp J agreed with Malcolm CJ that there is no difference in meaning between the word "direct" and the word "proximate". At p.454, Ipp J effectively agreed with Brooking J in Treloar. He also supported the view that the causal contribution must be predominant among the operative causes. At p. 458, Ipp J arrived at the conclusion that the injuries were too remote from the driving to be regarded in law as having been caused by the driving, even applying the ordinary common law test of causation. He also expressed the view that the driving of the wheat truck was not the effective or dominant cause of the injuries. At p.461, Parker J also equated the meaning of "direct" with "proximate", and also expressed the view that, for this purpose, a cause should be the effective or dominant cause of the occurrence.

31 Sinfein Pty Ltd sought leave to appeal to the High Court in relation to this decision. Transcript is available in relation to this brief, but unsuccessful, application for leave. On that application, McHugh J pointed out, at p.4, that the wording of the relevant provision was "directly caused by" as opposed to "caused by" which would have represented the common law test. McHugh J was clearly of the view that what caused the injury to the victim was the subsequent spilling of petrol (not from a vehicle) rather than the fire which was initially started in connection with the vehicle, which fire was described as background rather than the cause of the injuries. This is found at p.5 of the transcript.

32 Another decision bearing on this issue is that of Mandie J in Transport Accident Commission v Iacuone (1998) VSC 192 (18 December 1998). At p.8 of that judgment, Mandie J supported the approach adopted by Brooking J in Treloar, Tadgell J in Jewell, and in Sinfein Pty Ltd. He stated that the words "directly caused by" connote a causal relationship more proximate and immediate than the words "caused by".

33 In summary, the authorities establish that the word "directly" adds something to the consideration of causation. It means, as was decided in Sinfein Pty Ltd, that the test proposed in insurance cases should be adopted, and that the driving must be the predominant cause of the incident and the resulting injuries. However, even if the common law test of causation were to be adopted, Larson would still fail. The driving was not the direct cause of the incident. The attack by the cow was.

34 Mr Keogh of counsel advanced a succinct argument on behalf of Larson. Again hoping to do it justice, I would summarise it as follows.

35 An examination of the chain of cases dealing with the question of causation involved in s.3 of the definition does not justify the conclusion that the driving has to be the predominant cause of the incident. It is unclear as to what is in fact added to the requirements in the definition by the inclusion of the word "directly". Whilst the question is considered at some length by Tadgell J in Jewell, it is not answered. Certainly he did not state that it means that the driving has to be the predominant cause. Nor is this the effect of the decision in Iacuone or the majority decision in Treloar.

36 Nor is any great assistance obtained from a consideration of the decision in Sinfein Pty Ltd, or the remarks of the High Court on the leave application. It is really a question of the facts of the particular case. Indeed, as Dawson J said at p.5, the case turns largely upon its own facts. Thus, in each case, it is a question of analysing the facts and seeing where the driving fits into the overall scenario.

37 In the present case, the driving is inextricably linked to the incident and the activity. Larson drove the bike to the paddock for the purpose of getting the cow active and then returning to call the veterinary surgeon if necessary.

38 As set out at p.14 of her statement, which is in evidence in her Tribunal book, the driving of the bike was part of the process in which she was engaged.

39 Further, she then parked the bike, left the motor running, and left it in the fourth forward gear. The bike was in a position where she could only reverse out. The process of driving, at the least, started again when she remounted the bike and commenced to operate its controls in order to select a gear. She had the intention of driving away and avoiding a confrontation with the cow. She was in the process of so driving away from the incident and the confrontation when the attack occurred, the very attack which her driving was being used to avoid.

40 Thus, the attack by the cow is not a separate or intervening cause. It is not separate from the whole procedure or from the result which she was originally intending to achieve by driving. There is an immediate temporal connection between the driving and the incident and the two are inextricably linked.

41 There is also a clear distinction between this case and the decision of Beach J in Ross v Transport Accident Commission (2000) VSC 112 (4 April 2000). In that case, the injured party, who was driving his vehicle, was shot by an assailant in another vehicle which pulled alongside his. The injured party failed essentially on the basis that the car was merely the stage or platform upon which the shooting occurred and the injury sustained was caused directly by the shooting and not by the driving of the motor vehicle. By way of comparison, in the present case the driving was being employed to avoid the very confrontation which occurred and the driving was an intrinsic part of the whole situation.

42 It is quite apparent from the decisions in Jewell and Iacuone that the driving need not be the sole cause of the incident. It needs to be a proximate cause. To say that it must be the predominant cause goes too far.

43 Assistance can be gained from the reference by Mandie J in Iacuone to the words of Lord Shaw in Leyland Shipping Co v Norwich Union Fire Insurance Society (1918) AC350. The reference, which is found at paragraph 34 of the judgment, underlines that there may be more than one direct cause of the incident and injury, and also that it is perhaps more realistic to think of causation as a net rather than as a chain. That analysis is useful in the present case. Rather than there being a chain of causation, there is a net or group of circumstances which result in the plaintiff suffering injury whilst driving her vehicle in an effort to avoid that very injury.

44 The facts in the present case go well beyond those in Pedersen. In Pedersen the vehicle was driven to a particular spot and then parked. Injury ensued thereafter. In the present case there was driving to a particular spot and parking, but then the active continuation of driving. The operating of and selecting of gears is an act of driving. The driving was continuing when the attack occurred.

45 Thus, the question to be determined really involves an analysis of the facts and an analysis of how the driving impacts upon the incident.

46 I shall commence this ruling by referring to some matters of general principle. These are as follows.

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 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 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 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 at paragraph 15, where he also referred to the decision of Mandie J in Iacuone:-

"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.

56 In this regard, I am of the view that the submissions of Mr Keogh are correct. I am not of the view that the law in this State is that an evaluation must be made of each of the causes of a transport accident so as to establish which is the most causative. The experience referred to in the quotations from Treloar and Sinfein Pty Ltd above would indicate that, not infrequently, the reason why an incident or accident occurs is multi-factorial. Supposing the following example is taken. A person is driving a vehicle along a highway at night. That person is also smoking whilst driving. A horse escapes from a nearby paddock. The horse leaps onto the highway. In the general panic of trying to avoid the horse, the driver knocks the cigarette into his or her lap. In attempting to deal with the smouldering cigarette, the driver fails to notice a poorly lit trench across the highway, into which the vehicle plunges. Injury results. Whilst this may seem far fetched, on occasions accidents are caused by an unhappy coincidence or, as Ipp J put it in Sinfein, concatenation of circumstances. Returning to the above example, viewed one way the driving is the direct cause of the incident. Viewed another, the escape of the horse onto the highway is another direct cause. Viewed yet another way, the fact that the driver was smoking, became agitated and caused the cigarette to drop and thereafter lost concentration, is another direct cause. A final direct cause could be the existence of a poorly lit trench across the highway. 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.

58 Accordingly, having considered the well known authorities and the general principles of law involved, I now turn to my findings in this case.

59 I agree with Mr Keogh that the driving of the bike, or vehicle, was inextricably linked with the incident, and resultant injury. I accept Larson's evidence as to her intentions and the sequence of events, which was scarcely challenged. In any event, in relation to this issue, she presented as a witness of total credibility. Of course, I am not in any way determining any issue which relates to the gravity of her injuries or the consequences thereof, or relating to the other issues which are potential defences to the action. I am determining that the incident was directly caused by the driving of the bike.

60 In coming to the conclusion that the incident was directly caused by the driving of the bike, I am relying, inter alia, upon a number of findings of fact. These include the following:-

(a) Larson drove the bike to the place where the incident occurred. (I appreciate that this is far from conclusive, but it seems to me to be a factor.)

(b) The driving of the bike to the point where the incident occurred was an integral part of the overall process, or, as Mr Keogh put it, the scenario. In other words, the driving of the bike was not simply a means of arriving at the desired destination, a route which could have been covered in a more leisurely fashion on foot.

(c) The driving of the bike to the point where the cow was resulted from the neighbour's telephone call in relation to the cow calving. It was the intention of Larson, who was operating the farm in the absence of her husband, to use the driving of the bike as a means of causing the cow to rise to its feet. It was also her intention to drive back to the farmhouse and call the veterinary surgeon should that be necessary.

(d) When she dismounted from the bike because of the position of the cow and the tree, she left the bike in gear and the motor running, facts consistent with an intention to continue or resume driving, if this does not actually constitute driving.

(e) She remounted the bike with dual intentions. One was to use the driving of the bike to escape the aggressive behaviour of the cow. The other was to use the driving of the bike to return to the farmhouse and call the veterinary surgeon.

(f) Whilst the commencement of the cow's aggressive behaviour occurred when Larson approached it on foot, the cow in fact physically attacked the bike with Larson seated upon it in the driving position, with the motor running, and with Larson trying to engage reverse gear. In other words, the cow physically attacked the bike whilst Larson was seated on it and driving.

(g) In attacking the bike which Larson was driving, the cow forced the front wheels of the bike from the ground. In other words, and to underline the point previously made, whether the cow attacked the bike and driver as a unit, as put by Mr Keogh, or whether it was simply attacking the bike, it came into forceful contact with a vehicle within the meaning of the Act (for the purposes of this ruling) which was being driven within the meaning of the Act.

(h) Larson remained upon the bike and continued to drive the bike within the meaning of the Act as she and it were pushed backwards and over the edge of the river bank. The point at which she parted company with the bike is not clear. It was after she and it were pushed over the bank and in or towards the Gellibrand River.

61 When one bears in mind the above aspects of the matter, as well as considering the whole scenario, and the direct temporal connection between the driving and the incident, it seems to me that there has been established such a direct and sufficient non-coincidental nexus to enable it further to be said that the incident was directly caused by the driving. I might add that, on balance, this would be my conclusion even if the use of the word "directly" in the definition requires a grading of the causes of the incident and the selection of driving as being what Ipp J referred to in Sinfein Pty Ltd as the "most causative". In other words, even if the words "directly caused by" equate with "predominantly caused by" in the sense that it must be a cause more dominant than any other cause, I would still be satisfied that the driving directly caused the incident. Of course, as stated, I am not convinced that this concept of "one dominant cause" does represent the law in this State. Even if it does, my conclusion would be unchanged.

62 Assistance in understanding how I have arrived at this last-mentioned conclusion can be gained from considering the following. True it is that the incident, as it occurred, could not so have occurred without the cow. True it is that the incident, as it occurred, could not so have occurred without the river. As stated, incidents involving vehicles and injuries can frequently be attributed to more than one factor. However, as discussed, it is the driving that permeates this sequence of events. Suppose Larson, instead of returning to the bike, had attempted to escape from the cow on foot and had suffered the identical injuries. It might be much more difficult to say that the driving was the "most causative" cause. There would still be a strong element of driving pervading the whole process which was taking place, and indeed pervading the case. However, to state the obvious, Larson did not seek to escape on foot. She returned to the bike and was driving it when the cow attacked it. She was driving it for the very purpose of escaping the cow. The driving directly caused the incident. The driving was the "main cause" of the incident, if that be what "predominant" means.

63 I have previously used analogies. Yet another analogy might be useful in assisting comprehension of the result at which I have arrived, particularly as it is an analogy which removes the unusual aspect of the presence of an angry cow. Suppose a person parks a motor vehicle in a busy city street directly outside a construction site. The person leaves the vehicle and is moving off. A passer by points out to the person that the vehicle is parked directly beneath workmen operating above. The person returns to the vehicle, gets into the driver's seat, turns on the ignition, and endeavours to select a gear, all for the purpose of driving to another parking spot away from the workmen. Before the gear can be selected, or the vehicle can actually be moved away, building material falls upon the car and the person is injured. It seems to me that, in such an instance, the driving would directly cause the incident and, for that matter, would be the main cause of the incident. Further, such an example lacks the additional "driving" factor which exists in the present case - namely, that it had also been intended that the driving be used as part of the overall process (the raising of the cow to its feet and the obtaining of the veterinary surgeon).

64 One could postulate a range of possible scenarios and a range of outcomes. All this only goes to underline that it is a matter of analysing the facts in each particular case, that, as stated by Dawson J, cases will turn largely upon their own facts; and, as stated by Mandie J, often it will be a question of degree.

65 In the present case, I am satisfied that, for the purposes of the definition of "transport accident" contained in s.3 of the Act, the incident was caused directly by the driving. The questions as to whether or not the incident occurred on private land and whether or not the bike is a vehicle within the meaning of the Act await agreement or further argument and evidence.