1. The original 1986 Act, defining, 'transport accident' to mean 'an incident caused by, or arising out of, the use of a motor car...'; to 2. A 1988 amendment to the definition of 'transport accident' inserting the words directly and driving; 'an incident directly caused by, or directly arising out of, the driving of a motor car...';[5] to

1. A 1994 amendment omitting the phrase, 'or directly arising out of' from the definition of 'transport accident' to produce the current definition, 'an incident directly caused by the driving of a motor car...'
2. Mandie J then provided a useful summary of the law:

After the 1988 amendments and prior to the 1994 amendments, the Appeal Division of this Court considered the definition in two reported cases.

The first case was T.A.C. v Treloar and Others [1992] VicRp 31; [1992] 1 VR 447 which involved three appeals [Trelaor, Pedersen and Bizewski]. McGarvie and Gobbo JJ in a joint judgment expressed the view that an incident is caused by the driving of a motor car if it is caused by some feature of the driving such as the speed at which, the inattention with which or the place to which the car is driven. They also considered that it was difficult to see that any legal difference had been brought about by inserting the word "directly" before the word "caused". Brooking J, referring to the authorities which established that "caused by" required a direct or proximate relationship, thought that it was going a long way to conclude that the addition of "directly" was to do no more than spell out what was previously implied.

In the appeal of Treloar, Mrs Treloar fell whilst boarding a stationary bus. The Court was unanimous in concluding that it was not open to find that her injuries were directly caused by or directly arose out of the driving of the bus in these circumstances. The joint judgment considered that an incident which was not directly caused by the driving of a motor car could be said to directly arise out of the driving of a motor car if the incident was a direct consequence of the driving or the driving was a factor which directly contributed to the incident. In the appeal of Pedersen, Mrs Pedersen's husband was helped down from a stationary bus and fell on rough and poorly lit cobblestone guttering incurring fatal injuries. The majority thought that this incident could be said to have been directly caused by the driving of the bus if it were found that the incident would not have occurred had it not been for the bus being driven to and stopped at an inappropriate place for the disembarkation of passengers. The majority considered, in substance, that the incident could not be said to be so remote or indirect a consequence of the driving of the bus that it was not open to find that the incident was directly caused thereby. Brooking J dissented, his reasoning (at p.466) having, in my respectful view, considerable logic. The third appeal, that of Bizewski, involved an unusual situation in which the question whether driving of a car was relevantly involved was the central question and is of little assistance in the present case.

The second case was T.A.C. v Jewell [1994] 1 VR 300. In that case, a farmer was driving his truck back to its shed when he noticed that the ignition key had broken off in the ignition switch. He stopped the truck by shutting off the fuel and left the truck in first gear. He got out of the truck and conducted repairs by removing and then replacing the ignition assembly. He tested his repairs and, in short, the truck, being in gear, moved forward and crushed him against the wall of the shed. The court considered that the incident directly arose out of the driving of the truck.

A number of the propositions contained in the judgment of Tadgell J in Jewell (at pp.306-7) remain relevant. Extracting and adjusting them for the purposes of this case, they may in my view be stated as follows:

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

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 a 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 out of the question. Causes are spoken of as if they were as distinct from one another as beads in a row or links in a 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, meet; 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."

Did the Tribunal correctly interpret the statute?

In my opinion, the Tribunal displayed no error in considering whether the injury was caused by the driving of the motor vehicle by referring to the unbroken chain of causation, to the application of commonsense and to the "but for" test. Nor, in considering whether the injury was directly so caused, do I find that the Tribunal referred to erroneous criteria. The reference to "a temporal or other connection" was supported by authority and the reference to "the predominant causal contribution and operative cause" is, to my mind, a legitimate approach to the question whether the causal relationship between the driving and the injury was sufficiently proximate and immediate to fit the description "directly caused by".

Was it open to the Tribunal to find that the injury was directly caused by the driving of the Torana?

In my opinion 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 which 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. It was well open to the Tribunal to find that the driving of the vehicle caused both the incident (the treading on the windscreen glass) and the injury, notwithstanding that the respondent's own actions were also an operative cause thereof. In my opinion, it was also open to the Tribunal to conclude that the degree of proximity or immediacy required to satisfy the test of "directly caused by" existed notwithstanding the time interval and the intervening acts to which reference has been made, for the reasons advanced by Mr Ruskin (which I adopt). It would be unwarranted for the court in its appellate jurisdiction on questions of law to interfere with the fact-finding functions vested in the Tribunal unless the fact or facts so found were clearly not open to it (See Powley v Crimes Compensation Tribunal (1996) 11 VAR 146, 154 per Phillips JA).

1. Mr Ruskin's reasons appear, from the decision, to be [from 17]:

Mr Ruskin QC ... submitted that the Tribunal made no error of law in its decision; it applied the correct principles to the decision whether the respondent's injuries were "directly caused by the driving of a motor vehicle" and that the appellant's complaint was no more than a factual dispute disguised as error of law.

1. the respondent's injuries were caused by glass whose presence on the roadway was directly caused by the driving of the motor vehicle;
2. the glass came from the windscreen of the Torana when by its driving, it hit a tree which resulted in the windscreen being shattered;

1. the alleged "intervening factors" were illusory; there were no intervening factors which the law would consider as breaking the chain of causation, whether at common law or under the narrower relationship of "proximate cause";

1. the temporal difference between the driving and the injury was irrelevant; the case was no different in principle to a case where a car hit a tree which slowly broke and then caused injury;
2. a relevant causal-breaking intervening event would have occurred, for example, if the glass from the car had been placed in a bin without proper protection, causing injury to the hands of a rubbish collector.

Mr Ruskin submitted, after canvassing the authorities, that there was no relevant distinction between a circumstance in which a person stepped on glass which was present on the road caused by the driving of the vehicle, and a circumstance in which a person was hit by flying glass from a shattered windscreen or glass which ricocheted from a number of objects before it struck the person.

He further submitted that, in any event, the fact that the respondent was helping the police with their enquiries when he stood on the glass was a circumstance directly caused by the driving and the connection was closer than the "environmental" circumstances found by the majority in Pedersen (in Treloar's case) to satisfy the test of direct causation between injury and driving.

Mr Ruskin submitted that "directly caused" meant "proximate in a clear sense". "Directly" was a word of emphasis which meant that a court should have real satisfaction that the predominant cause was the driving, on a commonsense approach.

1. I now turn to two later Supreme Court of Victoria decisions by Kaye J concerning the definition of 'transport accident'.
2. Transport Accident Commission v Billett [2004] VSC 406 concerned Mr Billet and his wife living on a rural property. He was a self-taught mechanic and regularly repaired and serviced his son's Mazda three tonne truck. On the day of the accident the truck was parked in a shed on the property. Mr Billett intended to finish work which he had been doing on the truck. For that purpose he drove the truck a short distance and parked it near his son's station wagon. He then conducted some repairs on the truck. While he conducted those repairs he left the engine of the truck running. Upon completion of the repairs he turned off the ignition. About an hour after he had removed the truck from the shed Mr Billett leaned into the truck in order to turn on its ignition. At that time he was standing outside the truck. The truck lurched forward causing Mr Billett to become caught between the front tray of the truck and his son's station wagon. As a consequence Mr Billett suffered injuries.[6]
3. Kaye J quoted [at 7] VCAT's reasons for deciding that the incident in question was directly caused by the driving of a motor vehicle:

In my view, the incident would not have occurred but for the applicant driving the truck from the shed, parking the truck at an angle immediately behind the station wagon, inadvertently leaving the truck in gear, failing to apply or sufficiently apply the hand brake, and turning on the ignition. All but the last of these events were part of the driving and the predominant cause of the incident. Even if the last (the turning of the key in the ignition) is not to be regarded as part of the driving of the vehicle, all the other matters played a direct role in the causation of the injury.

There was admittedly, a substantial lapse of time of an hour, between the applicant driving the truck out of the shed, and the incident causing the injury. There was also a lapse of time between the incident and the failure of the applicant to engage the hand brake and disengage the gears. In this regard it is not clear from the evidence whether this failure occurred when he parked the truck or when he turned off the engine after he had been charging the battery. As a matter of logic however, and given the findings of fact which I have made, that lapse of time does not impair my findings as to a causal link between the driving of the truck to the place where it was parked and the incident. In so finding it is not necessary for me to consider Mr Schulze's alternative submission.

1. Kaye J described the essence of TAC's appeal to be that the act of driving the truck, and all the features pertinent to it, had ceased well before the happening of the incident, and was not a direct cause of the accident. He did not allow TAC to submit that the antecedent act of driving did not include the failures to properly apply the hand brake and disengage the gears, because these issues not been raised at VCAT.
2. He dismissed TACs appeal deciding, in circumstances where at least an hour had passed between driving and the injury:

... 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 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

1. In discussing the test of causation, Kaye J adopted Mandie J's summary of the legislative history in Iacuone, agreed [at 12] that the ongoing Parliamentary intention was to narrow the scope of the concept of 'transport accident' and said authorities relating to the meaning of the term as it was prior to the current definition must be treated with some caution.
2. That said, he regarded the observations of Tadgell J (with whom Ormiston J agreed) in Transport Accident Commission v Jewell [1995] VicRp 22; [1995] 1 VR 300 as remaining pertinent (a very similar list to Mandie J's list in Iacuone):

1. Whether an injury or incident was one 'caused by or arising out of' the use of a motor vehicle is a question of fact. 2. The words 'caused by' connote a 'direct' or 'proximate' relationship of cause and effect. By comparison the words 'arising out of' required a less proximate relationship between the use or operation of a vehicle than that which would be necessary to satisfy the words 'caused by'.

1. The words 'caused by' do not mean 'solely caused by';

1. It is futile to strive to enunciate a general proposition the application of which would provide a ready solution in any particular case; 2. The insertion of the word 'directly' in the 1988 amendments adds something to the legal concept conveyed in the context of 'caused'; and 3. An incident 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 by a motor vehicle occurring after its driving must, however, demonstrate either a temporal or other connection between the incident and the driving sufficient to prove that the driving directly caused the incident.
2. Koutroulis v Transport Accident Commission [2011] VSC 159 concerned Mrs Koutroulis boarding a bus with her 7 year old son. To get off the bus she pressed the button, the bus stopped, and the front and rear doors of the bus had opened. The bus was quite full. Because Mrs Koutroulis' son was not very good at getting on and off buses, she got off the bus via the front door, then reached into the bus with her left arm to hold her son's hand to assist him get off from the bus. When she did so, the front door of the bus closed on her left arm, entrapping it. She suffered injury to her neck, left shoulder and left arm.
3. The bus driver's uncontested evidence was the accident occurred because he intended to close the back door, which was free of passengers, by pressing the button, which would have operated that door. However he accidentally pressed the button that closed the front door, and thus caused the front door to close on to the appellant's arm. It was not his intention, when he pressed the button, to close the front door. He confirmed that, at that stage, the bus was not ready to drive off because there were passengers still getting off it. Mechanically, the bus is unable to move if the door is open. As a mechanical safety feature the bus's brakes are engaged while the door is open. The bus will not move off until the door is fully closed. Once the door is closed, the driver must then operate the accelerator before the bus will move off. After the driver has pressed the accelerator, the bus remains stationary for a second or two, and then it moves off.
4. This was an unusual case in that Mrs Koutroulis submitted her injuries were not directly caused by driving. She wanted to sue the bus company at common law. TAC submitted her injuries were directly caused by driving.
5. VCAT had decided with 'some hesitation' that the incident could be characterised as a transport accident under the Act.
6. Kaye J discussed the definition of driving, referring to various authorities [at 19 to 31]. He concluded (omitting his discussion of which steps before and after driving might be included in the definition of driving as this issue is not relevant in this case):

... it is accepted that the core meaning of "driving" consists of the propulsion or movement of a vehicle. Thus, the driving of a vehicle includes those steps undertaken by the driver which concern the propulsion or movement of the vehicle.

1. For completeness, I note that Kaye J decided [at 38] closing the front door of the bus could not be understood as part of 'driving' the bus, as used in s 3(1) of the Act in its ordinary and natural meaning, in the situation where the bus driver, when accidentally closing the front door, had no intention to close both doors of the bus (a prerequisite to being able to move the bus) and drive off.
2. Finally, TAC drew my attention to the VCAT decision, Sheppard v TAC TAC v Sheppard [1999] VICCAT 50. Mr Sheppard rode his bicycle into a parked car. VCAT decided this incident was not directly caused by the driving of a motor car or motor vehicle.
3. VCAT said:

Whilst it goes without saying that the incident would not have occurred had the 4WD not been parked, to be an incident which is directly caused by the driving of a vehicle, the incident must be a direct consequence of the driving or the driving must be a factor which directly contributed to the incident. There must be a direct and sufficient non-coincidental nexus, a temporal or other connection between the driving and incident before it can be said to be directly caused by the driving

I accept that Mr Christodoulou was seated in his car and had in fact interrupted his journey to consult the mall ways. These facts do not give rise to such a sufficient non-coincidental nexus or temporal or other connection. Having found that the 4WD had been stationery for approximately three minutes with its engine turned off, and was stationary well before Mr Sheppard reached the corner, I am not satisfied that it had been stationary for "only a short period of time before the collision" sufficient to create the necessary nexus or temporal connection in this case to satisfy me that the incident was directly caused by the driving. In reaching this conclusion, I note that in Treloar's case there was a much shorter period of time in which the vehicle had been stationary. In that case, [where the Court was considering a broader definition of transport accident] the bus had just arrived and stopped and Mrs Treloar injured herself trying to board it. In that case, their Honours said it was not open to find that her injuries resulted from an incident directly arriving out of the driving the bus. ...

Finding of fact - Were Ms Monahan's injuries directly caused by the driving of a motor vehicle? - Yes

1. Based on my inference that the Strap fell from a motor vehicle that was passing by, Ms Monahan would not have been injured if that had not occurred. The Strap would not have been on the road. Thus, the 'but for test' is satisfied.
2. However, that is only part of the enquiry.

Directly (or indirectly) caused by the driving of a motor vehicle?

1. As the authorities say, the incident must be caused by an act of driving. I have inferred the act of driving in this case was the propulsion forward of the vehicle (see Kaye J in Kotroulis as quoted above and McGarvie and Gobbo JJ in TAC v Treloar discussing the Pederson case).
2. I reject TAC's submission that there is no evidence that the Strap came to be lying on the road because of some act or feature or act of driving.
3. I have inferred that the Strap fell from a moving car in part due to energy being imparted from the vehicle to the Strap as the vehicle was passing by. If the car was not moving, it is difficult to see why the Strap would fall from the vehicle.
4. A moving car is self-evidently being controlled by a driver, driving the car, except in rare circumstances where a car is in movement and not controlled by a driver, such as the handbrake is left off in the car in neutral on a hill.
5. For completeness, I record I agree with TAC's submission that there could be no relevant relationship between a person failing to properly strap down a load and that negligence resulting in the type of injury suffered in this case. However, in my view the causation here is between driving and the injury; not any negligence tying a load beforehand (about which I make no finding).

Directly caused by the driving of a motor vehicle? - Yes

1. The question is whether there is a direct or proximate relationship of cause and effect between the driving of the motor vehicle and injury to Ms Monahan, in the context of inferences made in this case.
2. There would be no debate about this issue if Ms Monahan had been riding along, a vehicle had passed her and the group, the Strap had fallen to the road such that it became stationary and Ms Monahan had immediately run over it, resulting in injury. The direct or proximate cause and effect would be established.
3. The authorities are clear that the required proximity can occur when the injury arises after driving is finished. In TAC v Jewell, Mr Jewell was injured in the course of repairing the truck after he had driven it. TAC v Iacuone also involved injury after the driving finished, when the car ran into a tree. TAC v Billett also involved a lapse of time.
4. As quoted above In Iacuone, Mandie J said in part:

In my opinion, it was also open to the Tribunal to conclude that the degree of proximity or immediacy required to satisfy the test of "directly caused by" existed notwithstanding the time interval and the intervening acts to which reference has been made, for the reasons advanced by Mr Ruskin (which I adopt).

1. Therefore, the issue becomes whether the period of time passing between when the Strap came to rest on the road and Ms Monahan riding over it lessens proximity such that the incident was only indirectly caused by the driving.
2. In my view it does not.
3. The risk to cyclists of resulting injury from the Strap lying on the road does not lessen with the passing of time, by way of a change in the state of the road or of the strap. The Strap would not have corroded (and was not particularly corroded) such that that would have made a difference to the outcome of Ms Monahan riding over it. Neither would the nature of the road surface (which on the photographic evidence was in good condition) change to make a difference in the outcome.
4. Put another way, the result in terms of injuries to Ms Monahan would not have differed had she run over the Strap when it had recently come to rest compared to her running over the strap some time after it had come to rest.
5. This is similar to the situation in Billet, where an hour had passed since Mr Billet had driven the truck. Putting aside the hypothesis that he left the truck in neutral, but inadvertently put it in gear when he reached into the truck while he was repairing it, presumably, he would have been crushed whether he had turned the ignition on shortly after finishing driving the truck or sometime later. The same follows if one accepts that he inadvertently put the truck in gear with the time-lapse flowing from after he put the truck in gear.
6. Concerning visibility of the Strap to the cyclist, in a hypothetical situation where the strap comes to rest before the cyclist immediately before the cyclist runs over it, the Strap would have perhaps been more visible to the cyclist as it moved than sitting stationary on the road. In this hypothetical situation, perhaps a cyclist would have a better chance of avoiding the strap. However, that does not appear relevant with reference to a no fault compensation scheme.
7. In reaching this conclusion, I considered whether the following issues would cause me to not find sufficient proximity existed.
8. While on first reading, the Iacuone decision, appears somewhat analogous to this case, there is an important difference. An important part of the temporal link between the driving of the motor vehicle and the injury to Mr Iacuone was that he came from his home because of the motor vehicle accident, he remained outside his home talking to various persons including doing his duty to assist police and at some point cut his foot. Of course, Ms Monahan's presence on the road in question had nothing to do with the driving of the (unknown) motor vehicle in question. This lessens the value by way of analogy of that case to this case.
9. However, with each case needing to be resolved on its facts, this difference did not cause me to reach a different conclusion.
10. Second, in Iacuone, the AAT in part reached its decision on the view that a reasonable person applying common sense would regard the driving of the motor vehicle as the cause of Mr Iacuone's injury.
11. In this case, the reasonable person may on first hearing about this accident, in the context of understanding the strap came from a motor vehicle, not immediately regard the unknown motor vehicle as a direct cause of Ms Monahan's injury. However, in my view, on further consideration of the circumstances, including the 'but for test', the reasonable person may well reach such a view.
12. Third, there is the possibility that after the Strap had fallen from the moving motor vehicle, another vehicle, or vehicles may have run over at moving it to the position at which Ms Monahan wrote over it. However, at this point one is speculating, with insufficient evidence on which to make an inference. Also, if that inference were made, it would not result in a different outcome. The last motor vehicle which imparted energy to the strap causing it to move to its last position on the road before Ms Monahan ran over it would be the vehicle the driving of which directly caused the incident.
13. Fourth, as TAC submitted, in TAC v Jewell, Tadgell J, in affirming that an incident 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 he said [at 307]:

... Thus, if there was no evidence at all of the period of time or the circumstances separating the driving and the incident in question, it may not be possible to find a direct connection between the driving in the incident permitting a conclusion that the latter was directly caused by or indeed that it directly arose out of, the former.

1. For the reasons I give above, in my view this is not a case where not being able to make a finding as to the period of time in question makes it not possible to find the direct cause required.
2. Finally, TAC referred to the Sheppard decision discussed above and submitted there is no reason to distinguish:
   1. Sheppard, where after driving had ended, as VCAT found, the cyclist ran into a stationary object, the vehicle; and
   2. This case where the driving was in the past and Ms Monahan cycles over a stationary object, the Strap.
3. I regard the VCAT Shepard decision to be in conflict with the Supreme Court's later Billet decision. In saying that, I do not regard this as a matter of conflicting precedents concerning legal issues, rather a conflict in how the definition of 'transport accident' is applied in different cases.
4. Relevant to this case, in Shepard driving had stopped for three minutes, as found by VCAT. As a result of earlier driving, the cyclist rode into the vehicle. In Billet, driving had stopped, on any view for substantially longer than three minutes and Mr Billet turned on the ignition (not in the act of driving) causing the car to move from the position the previous driving had brought it to and in doing so Mr Billet was injured.
5. In my view the Billet analogy is the most useful here.
6. For completeness I note that while the Jewell decision also involved lapse of time after driving had ended, given that case was decided under a broader definition of 'transport accident', I do not regard it as a safe analogy in this case.

1. For these reasons, I have set aside TAC's decision. As the parties agreed was appropriate in this scenario, I have remitted future decisions concerning Ms Monahan's application to TAC back to TAC to be decided in light of this decision.

[1] I take the term strap from the AMAT report, see below.

[2] Giving evidence the senior Constable described the strap lying 0.7 metres from the rumble strip.

[4] See print out at Tribunal Book 69.1.

[5] My underlining to indicate inserted words.

[6] This paragraph is a slight paraphrase of paragraph 1 of the decision.