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[2001] VCAT 1449
respondent. The TAC's decision of 8 March 2000 was affirmed. Costs were reserved.
1 cited instrument linked from this judgment.
The Tribunal accepted that an epileptic fit caused Mr Price's L4 spinal fracture. It did not accept, on the evidence, that driving caused the fit or that the car's braking contributed to the fracture. Because the Act required a direct connection between driving and the injury, the Tribunal affirmed the TAC's refusal of the claim.
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Price v TAC [2001] VCAT 1449 concerned a claim for compensation under Victoria's Transport Accident Act 1986, although the incident occurred in Queensland. The Applicant, David Victor Price, was travelling in a registered motor vehicle with his wife on 11 October 1999. He experienced headache symptoms and then an epileptic fit. His wife was driving when he fitted. The account of the trip and the circumstances immediately before the fit varied across the evidence, including on whether the car was moving or stopped and the significance of bright or dappled sunlight ([1], [13], [19], [29]).
Mr Price suffered an L4 burst fracture. Whether he also had a T11 fracture caused by the incident, or whether that was an old injury, was not resolved. The Tribunal considered that uncertainty immaterial once it determined that the incident causing the injury was not directly caused by driving ([7], [29]).
The TAC declined the claim on 8 March 2000. Its stated basis was that compensation could not be paid for an accident that was not directly caused by driving a motor vehicle, train or tram ([1]). The Applicant challenged that decision before VCAT. The hearing took place from 28 February to 2 March 2001, with written final submissions received on 22 March. Senior Member R J Ball gave the decision on 10 July 2001.
The medical evidence identified the fit as a likely cause of the L4 fracture. Mr Kierce considered the fracture could have been caused by the fit, sudden braking, or both, depending on what had happened ([16]–[17]). Mr Southby considered that the fit caused the spinal fractures through extreme arching of the back, while also accepting braking as a possible cause ([20]–[21]). Mr O'Brien concluded that the spinal pathology related to the major fit, rather than to Mr Price's presence in a motor car ([23]–[24]). The Respondent's neurologist, Mr Kranz, considered the generalised seizure the most significant factor contributing to the fracture ([25]).
The Tribunal affirmed the TAC decision and reserved costs. The order did not decide whether the possible T11 injury was pre-existing or caused during the incident, because that issue did not affect the direct-causation determination ([29], [50]).
The Tribunal framed the central question as two linked inquiries: what was the incident that caused the injury, and was that incident directly caused by driving? ([8]). It treated the epileptic fit as the incident and found it caused the L4 compression fracture, relying on the medical evidence ([29]). That finding established a causal link between the fit and the fracture, but it did not by itself establish the separate statutory link between driving and injury.
The Tribunal set out the definition of “transport accident” in section 3 and the provision in section 3(3)(c) that an injury as a result of a transport accident is an injury directly caused by driving ([1]). It also noted section 35(1)(b), which addresses an accident in another State involving a registered vehicle where the injured person was a passenger. Mr Price was a passenger in a registered vehicle and a Victorian resident, so the Tribunal considered him within the circumstances described by that provision ([9]–[10]). The disputed question remained direct causation.
For the meaning of causal connection, the Tribunal referred to TAC v Trealor, which quoted TAC v Hoffman and Government Insurance Office (NSW) v R J Green and Lloyd Pty Ltd. The passage distinguishes “direct” or “proximate” causation from a less immediate connection, while requiring that the vehicle's use remain a causal contributor rather than a merely coincidental concomitant ([30]). The Tribunal's conclusion therefore turned on evidence about the causal role of driving, not simply the fact that the fit and injury occurred during a car journey.
The Applicant argued that bright sunlight encountered while travelling caused a migraine and fit. The Tribunal considered Mr Southby's evidence that sunlight might have triggered the fit, but noted his concession that “by travelling in a car” could be replaced by “walking on the beach” ([33]). It understood that concession to mean the car's driving was incidental to the alleged sunlight trigger. It also considered conflicting medical evidence about whether bright light could trigger a fit in a 55-year-old, the absence of references to migraine or sunlight in the Mackay hospital material, and the Applicant's wife's statement that he had covered his eyes with a hat ([26]–[27], [35]–[37]). It was not satisfied on the balance of probabilities that sunlight caused the fit ([37]).
The Applicant also relied on sudden braking. The Tribunal was not satisfied that his wife braked in a way that caused or contributed to the injury. The hospital material did not attribute the injury to braking, and the accounts to medical practitioners included that the car was stationary at traffic lights or that the wife stopped briefly before continuing to the hospital ([13], [19], [38]). The Tribunal accepted that braking was raised as a possibility, but found the evidence insufficient to establish that it played the necessary causal role.
The Tribunal referred to Ross v TAC, where the Supreme Court was quoted as finding that an injury from a shooting was directly caused by the shooter’s act, not by the victim's presence in a moving car ([39]). Drawing an analogy, the Tribunal said that if asked what caused Mr Price's injuries, it would expect the answer to be “My epileptic fit” ([49]). Its point was not that an injury occurring in a vehicle can never be covered. Rather, on the evidence in this case, the fit was the identified cause and driving was not shown to be a direct cause of the fit or injury.
The judgment applies the statutory wording in sections 3 and 3(3)(c) of the Transport Accident Act 1986 as it was presented in the reasons. It does not describe a change in the legislation before or after the dispute, nor does it provide a comprehensive account of the development of transport-accident causation law. Any broader account of the law before or after Price would go beyond the material supplied.
Within the judgment's account, the relevant causation distinction came from the authorities discussed in paragraph 30. The passage from Trealor, quoting Hoffman and Green, treats “caused by” as requiring a direct or proximate relationship, while explaining that a less immediate consequence can still be causally connected in the broader context of “arising out of.” It excludes injury where use of the vehicle is merely a casual concomitant and not a relevant causal contributor ([30]). Price applies that distinction to the particular evidence about the sunlight, the fit, braking and spinal fracture ([31]–[38]).
The judgment also relies on Ross as an analogy. In the passage it quotes, the Supreme Court distinguished the act that directly caused an injury from the circumstance that the injured person happened to be in a moving vehicle ([39]). The Tribunal used that reasoning to identify the fit, rather than the car journey, as the answer to what caused the injury ([49]).
The decision's practical contribution, as shown by its reasons, is an application of those propositions to a medical-event fact pattern. It separates the cause of the physical injury from the cause of the event that produced it, then asks whether driving directly caused or contributed to the relevant causal chain. The Tribunal did not find that the statutory requirement was satisfied merely because the fit and fracture occurred while Mr Price was travelling in a car.
At [8], the Tribunal says it must identify “what was the ‘incident’ which caused his injury” and whether any injury was directly caused by driving. In plain English, the Tribunal first had to identify the event responsible for the injury, then test that event against the Act's direct-causation requirement.
At [29], it found that “the ‘incident’ was the epileptic fit” and that the fit caused the L4 compression fracture. This is a critical analytical step: the fit was not treated as merely part of the background. It was the immediate event identified as causing the established spinal injury.
At [30], the Tribunal quoted the proposition that “caused by” denotes a “direct” or “proximate” relationship, and that vehicle use cannot be only a coincidental concomitant. This makes clear why proof that the injury happened during a car journey was not, by itself, enough.
At [33], the Tribunal said the driving became “a coincidental nexus” to the injury in light of the expert's concession that the same sunlight exposure could have occurred while walking on a beach. In plain English, the proposed trigger was the light, not a feature of driving or vehicle use.
At [37], the Tribunal was “not satisfied on the balance of probabilities” that sunlight caused the fit. It reached this view after considering the conflicting medical evidence, timing, the hospital history and the account that Mr Price had covered his eyes.
At [38], it was likewise not satisfied that the wife braked in a manner that caused or contributed to the injury. The Tribunal considered the absence of a hospital record attributing the injury to braking and the differing accounts of whether the vehicle was stationary or had stopped briefly.
At [49], the Tribunal paraphrased Ross and said the expected answer to “What caused your injuries?” would be “My epileptic fit.” In context, this summarises the Tribunal's view of the causal evidence. It does not replace the statutory test; it illustrates why the Tribunal regarded the fit, rather than driving, as the direct cause.
The judgment is relevant to claims where an injury occurs in a vehicle but the immediate cause may be a medical event, an independent act, or another circumstance not itself shown to result from driving. Its reasoning directs attention to separating the injury's physical mechanism from the alleged connection between driving and that mechanism.
The factual questions that mattered here included whether a proposed trigger was connected to driving or could have arisen in another setting; whether vehicle movement or braking caused or contributed to the injury; what event the medical evidence identified as causing the physical harm; and whether the evidence established those links on the balance of probabilities ([29], [31], [33], [37]–[38]).
Price does not establish that seizure-related injuries are outside the Act, or that sunlight, braking, restraint or vehicle travel can never be causally relevant. The decision rests on the Tribunal's assessment of the evidence before it. It found the fit caused the L4 fracture, but did not find that driving caused the fit or that braking contributed to the fracture. The judgment's reasoning is therefore most closely tied to cases where the vehicle's role is alleged to be merely the setting for an independently caused medical event, or where the asserted vehicle-related contribution is not established.
The interstate aspect also matters to the statutory context. The Tribunal stated that section 35(1)(b) covered the described circumstances of an accident in another State involving a registered vehicle and a passenger, and found those circumstances present ([9]–[10]). But satisfying that description did not remove the separate requirement to establish a transport accident as defined in section 3.
The supplied judgment does not report any later judicial treatment of Price. It therefore does not establish whether later courts followed, distinguished, approved or otherwise treated this VCAT decision. No later cases or citations should be inferred from this text.
The judgment does identify the authorities it used. It drew the causation passage from TAC v Trealor, which in turn quoted TAC v Hoffman and Government Insurance Office (NSW) v R J Green and Lloyd Pty Ltd ([30]). It also relied by analogy on Ross v TAC ([39], [49]). These are authorities discussed in Price, not evidence of how later courts treated Price itself.
For research purposes, the distinction is important: the reasons show how this Tribunal applied the cited authorities to the evidence in Mr Price's case. They do not establish a later appellate endorsement of Price's application, or any later change in the statutory test.
Several factual matters remained unresolved or were treated as unnecessary to decide. The Tribunal did not determine whether the T11 fracture was caused by the fit or was pre-existing, because its direct-causation finding made that issue irrelevant to the outcome ([7], [29]). It also did not make a definitive medical finding about the origin of the seizure. Instead, it found the evidence insufficient to establish sunlight as its cause ([35]–[37]).
The evidence about the vehicle's movement and braking was not uniform. One history described the car as stationary at traffic lights; another account said the wife stopped briefly and then drove to hospital. The Tribunal did not find that braking caused or contributed to the fracture ([13], [19], [38]). The judgment does not resolve what evidence, in a different factual record, would be sufficient to establish braking as a causal contributor.
The reasons also do not set out a general test for every case involving a medical event during travel. They apply the Act's direct-causation wording, the causal distinction quoted from Trealor, and the evidence in this matter. Nor do they provide information about later amendments to the Act or later cases interpreting it. Those matters cannot be settled from the judgment text supplied.
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Was incident which caused injury to the Applicant directly caused by the driving of a motor vehicle? - Sections 3 and 35 of the Transport Accident Act 1986.
1. The decision of the Respondent made on 8 March 2000 that it was not able to accept the Applicant's claim for compensation on the basis that the incident described by him was not directly caused by the driving of a motor vehicle is affirmed.
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1. The following is extracted from materials filed by the Respondent with the Tribunal:
1. The Applicant says in his claim for compensation signed 22 February 2000 that on 11 October 1999 he and his wife were driving along the Bruce Highway in Queensland. The light was bright and speckled through the trees overhanging the road. The Applicant started to get a headache and his wife swapped into the driver's position. The Applicant started to fit and his wife slammed on the car brakes, and then continued to drive to the closest hospital. The Applicant was fitting the entire time, and was restrained by the seatbelt
2. The Applicant claims to have suffered spinal injury as a result of the sudden braking of the vehicle and seatbelt.
3. On 8 March 2000 the Respondent determined that the Applicant's claim could not be accepted as compensation could not be paid for accidents that are not directly caused by the driving of a motor vehicle, train or tram.
The Applicant has made a claim for compensation on the basis that he is a person who has been injured as a result of a transport accident.
Section 3 of the Act defines a "transport accident" as being:
"an incident directly caused by the driving of a motor car or motor vehicle, a railway train or tram"
Section 3(3)(c) of the Act provides that a reference to an injury as a result of a transport accident is a reference to an injury directly caused by the driving of a motor vehicle.
There was no evidence given to, or obtained by the Respondent to suggest the Applicant's fitting was directly caused by the driving of the motor vehicle. The spinal injury appears to have been caused by the heavy fitting of the Applicant.
Accordingly, the Respondent determined that the Applicant's injuries were not directly caused by the driving of a motor vehicle.
2. Mr Spittle tendered written submissions on behalf of the Applicant dated 2 March 2001 and at paragraphs 4 and 5 of those submissions stated:
"WAS THE INJURY DIRECTLY CAUSED BY THE DRIVING OF THE MOTOR VEHICLE?
In this case a factual sequence of events occurred in the course of the driving of the motor vehicle. That state of affairs gave rise to the production of a migraine/headache and epileptic fit.
The event of injury and its sequelae involved in injury to the spine, namely, a burst fracture L4 and a compression fracture T11.
The sequence of events or state of affairs constitutes an incident caused by the driving of the motor vehicle to which the Applicant would not have been exposed if he had not been in the motor vehicle either as a driver and/or a passenger."
3. The representative of the Applicant called the following witnesses:
Mr Robert Southby, Neurosurgeon who was recalled to answer further questions subsequent to the evidence given by Mr Henryk Franz, on behalf of the Respondent.
4. The Respondent called Mr Henryk Franz who practices in the fields of Neurology and Clinical Neurophysiology.
5. A report dated 30 June 2000 by Mr John F O'Brien, Orthopaedic Surgeon obtained by the Applicant's solicitors and a report dated 12 December 2000 by Mr Michael A Polke, Orthopaedic Surgeon obtained by the Respondent, were admitted into evidence as was a report dated 6 April 2000 from Dr G.N. Parker the Applicant's treating General Practitioner
6. A report dated 22 May, 2000 from the Mackay Base Hospital dates as follows:
"Mr Price presented to Mackay Base Hospital on 11 October 1999 following a seizure. The history given by his wife is that he had been complaining of headache and migraine and began speaking incoherently, followed by a grand mal tonic/clonic fit with opisthotonos and incontinence of urine. The duration of the seizure was 5-10 minutes. The seizure was subsiding on arrival at the hospital and he was seen by a medical officer at the front of the hospital, when Glasgow coma score was 3/15, with palpable carotids and reasonable breath sounds.
On 12 October 1999 he was complaining of severe back pain and X-ray was taken on 12 October which revealed a fracture of L4. He was placed in a back brace and treated with Pethidine. On 14 October a CT scan of the lumbar spine was performed and revealed a technically unstable L4 burst type fracture with minor retro-pulsion superiorly and extension of the fracture complex into the pedicles bilaterally. A CT scan of the brain was also performed on 14 October and was reported as normal. He was treated with a lumbosacral corset brace and strict bed rest."
The report further states that, following physiotherapy treatment and the replacement of the brace, Mr Price was transferred home to Melbourne on 5 November 1999.
7. It appears from the evidence submitted to the Tribunal that the Applicant's epileptic fit ("fitting") caused a compression factor of his vertebrae (L4) either by virtue of the arching of his back during the course of the fitting or this in combination with restraint from his seat belt. It is not clear whether the fracture of his vertebrae at T11 occurred as a result of the fitting or was a pre-existing injury. It was asserted on behalf of the Applicant that the sudden braking of the car driven by the Applicant's wife and the restraint of the seat belt combined with the fitting caused the injury to his spine at L4 and possibly T11.
8. To resolve this application the Tribunal must also identify what was the "incident" which caused his injury and was any injury which he suffered directly caused by the driving of a motor vehicle?
9. Although the circumstances surrounding this "incident" occurred in Queensland the provisions of 35(1)(b) of the Transport Accident Act 1986 provides that a person who is injured as a result of a transport accident is entitled to compensation in accordance with the Act if the accident occurred in another State and involved a registered motor vehicle and at the time of the accident the person was a passenger in a registered motor vehicle.
10. In the circumstances of this application the Applicant comes within the terms of this section in that he was a passenger in a registered motor vehicle and was at the time of the accident a resident of Victoria.
11. Included in the Respondent's Tribunal Book copy of a letter dated 6 April 2000 from a Dr G N Parker of St Arnaud Medical Centre the Applicant's former treating General Practitioner. The Tribunal was advised that Dr Parker had left the medical practice at St Arnaud's and his present whereabouts are unknown.
12. In the report to the Applicant's Solicitor dated 6 April 2000 Dr Parker said:
"The above suffered an epileptic seizure, while being a passenger in car on 11th October 1999. He sustained an unstable fracture of his L4 (lumbar vertebrae) and T10 (thoracic vertebrae). The injuries were consistent with the stated cause.
Taking into account his work history and his present injuries his future and present capacity to work is almost zero. He has the Epilepsy, suffered an unstable fracture of L4/T10 and also has osteoporosis............"
13. It appeared that shortly after the Applicant returned to Melbourne from the Mackay Hospital in November 1999 Dr Parker referred him to an Orthopaedic Surgeon Mr Pual Kierce. In a report dated 30 April 2000 to the Applicant's Solicitors Mr Kierce stated:
"I first saw David Price on 29 November 1999 when he told me he had suffered two epileptic fits in his life, the first was in 1986 and then on the 11th October 1999 when he had been a passenger in a car stationary at traffic lights. Half an hour before this event he had noticed severe migraine headache which is a frequent problem for him....."
14. In a subsequent letter dated 6 June 2000 Mr Kierce stated:
"I am sorry I did not clarify my opinion regarding this patient which is that the crush fracture of his fourth lumbar vertebral body referred to in my report had, in my opinion, being caused by his epileptic fit on 11th October 1999......"
15. In his evidence to the Tribunal Mr Kierce, when questioned as to who had told him that the car in which the Applicant was a passenger was stationary at traffic lights when the epileptic fit occurred, said "I believe it was the patient who said that". He surmised that the patient would have been informed of this by his wife who was present at the time.
16. Mr Kierce further stated that the damage to the Applicant's spine was consistent with it being sustained by a high reflexion of the spine while restrained by a seatbelt and that in his opinion the damage to the Applicant's spine could have been caused by sudden braking of the motor vehicle (if that occurred) or by the Applicant fitting or by a combination of both.
17. In cross-examination when his attention was drawn to the comment referred to above in his written report that fracture was caused by an epileptic fit Mr Kierce responded that he did not have any information at that time other than that the car was stationary and that neither the Applicant or his wife had mentioned speckling of light through trees alongside the road causing the Applicant to suffer a migraine. Mr Kierce conceded that the fracture of T11 could have been caused by the motor vehicle accident or could have been an old pre-existing injury.
18. The Applicant was also examined by Mr Robert Southby, Neurosurgeon at the request of his Solicitors. In a written report dated 18 July 2000 Mr Southby recorded that the Applicant had suffered from attacks of migraine since leaving school. Mr Southby was apparently advised that in his younger days the episodes suffered by the Applicant were associated with vomiting and that the attacks of migraine could be shortened if he took one or other preparation used specifically for migraine as soon as the symptoms started. He also recorded that shortly after Christmas in 1986 during the holiday period the Applicant suffered an epileptic fit and was admitted to the Castlemaine Hospital. He had felt nauseated all day prior to the fit and had had a bad migraine the day before. He was apparently referred to a neurologist a Dr Bladin who told him that there was no evidence of a brain tumour and treated him with one of the medications used for migraine.
19. Mr Southby recorded that as a result of this treatment the Applicant became free of migraine and gradually stopped taking the tablets and that in recent years although he has had attacks of migraine they have occurred less frequently and they have not been severe as they were in the past. He also recorded that whilst on holiday in October 1999 in Queensland the Applicant was the front seat passenger in a car driven by his wife as they headed towards Mackay about 3pm. The reports states "the sun was very bright but there was also a dappled affect when they drove under trees near the road. Because of the glare Mrs Price asked her husband to take over the driving. However after he had been driving for a short time he appeared to be suffering from a migraine attack and they changed seats again. It was after Mrs Price again took over the driving that the Applicant suffered the epileptic fit. She apparently told Mr Southby that she stopped the car briefly and then drove on to the Mackay Hospital."
"The epileptic fits which occurred on 11 October 1999 was brought about by very bright sunlight in mid afternoon, with a dappled affect of the sunlight passing through the branches and leaves of trees being particularly significant. In other works, if he had not been exposed to sunlight in this particular fashion, that is, by travelling in a car, he would not have suffered the epileptic fit at that time.
The spinal fractures were caused by the extreme arching (hyperextension) of his back which was brought on by the epileptic fit......"
21. In his evidence before the Tribunal Mr Southby explained that migraine and epilepsy were two separate conditions and the Applicant appeared to be more prone to migraine than epilepsy. However he (Mr Southby) accepted that a migraine attack may be followed by an epileptic fit. Mr Southby commented that the spinal injury suffered by the Applicant may have been caused by sudden braking of the motor vehicle or by him arching his back during fitting. He said that the fracture of T11 was not clear cut. It "may have been an old injury".
22. In a report dated 30 June 2000 by Mr John F O'Brien which was obtained by the Applicant's Solicitors and admitted into evidence Mr O'Brien stated that the Applicant apparently had a "spontaneous seizure".
"The L4 fracture, however, is a typical burst fracture which occurs from direct vertical compression without any major flexion component. Indeed this is a well known fracture to occur in patients who have major epileptic fits, as the spine becomes rigid and the extreme force expended in a vertical compression sense is extremely high. Otherwise it would appear that this patients spinal injury is typical of the fracture pattern noted after a fit."
24. In the concluding paragraph of his report Mr O'Brien stated:
"Certainly on the basis of the evidence available I would have to conclude that this patient's current spinal pathology relates to the major fit and not to the presence of him being in a motor car when the fit occurred."
25. Mr Heryk Kranz, Neurologist and Clinical Neurophysiologist examined the Applicant at the request of the Respondent and in a report dated 13 August 2000 stated as follows:
"Following the episode on the 11th of October 1999 he complained of back pain and was found to have a partial crush fracture of L4 which was described as unstable..... There are a number of factors which could have contributed to or predisposed him in sustaining this fracture which is assumed occurred in association with the circumstances of the 11th October 1999. One factor would be if there is an underlying osteoporosis in particular or including the lumbar spine. A further factor could be the sudden braking which his wife apparently induced when he started to go into a seizure. The final and most important factor is him going into a generalised seizure which reported arching of his back and straining against the seat restraint. The forces generated in the course of a generalised tonic and clonic seizure can be quite severe. It is considered based on the evidence available that it is this later factor which would be the most significant in terms of contributing to the fracture noted following the patients admission."
26. In his evidence to the Tribunal Mr Kranz said that the usual trigging factors for onset of epilepsy was sleep deprivation, stress and alcohol. He said on the history taken by him from the Applicant his only previous seizure had occurred at night so that there was no identifiable precipitating factor. He said that bright light did not appear to be a significant factor in the Applicant's past epileptic fit and that it was unlikely that it was a triggering affect in the fit suffered by the Applicant in 1999. He stated that at age 55 the Applicant would have been exposed to bright light on many occasions in the past without this exposure triggering an epileptic fit.
27. When Mr Southby was recalled at the request of Mr Spittle, the Applicant's Barrister, the comment made by Mr Kranz that it was unlikely that bright light in a 55 year old would have caused the epileptic fit was put to him. Mr Southby stated that bright sunlight was a possibility as a cause and it was the strongest possibility in respect of the 1999 fit. He agreed that alcohol fatigue, sleeplessness and stress are the most common precipitating factors for epileptic fits. Mr Southby agreed that bright light was more likely to be a precipitating factor of an epileptic fit in a child rather than in a 55 year old but he would not rule it out as a possibility. He agreed with Mr Kranz that an epileptic fit would occur seconds or minutes after a person such as the Applicant being exposed to bright or dappling light. Mr Southby concluded that he still considered that the Applicant's epileptic fit was caused by the exposure to bright sunlight.
28. At the request of the Respondent a Mr Michael Polke, Orthopaedic Surgeon examined the Applicant in December 2000. In a report dated 12 December 2000 which was admitted into evidence Mr Polke confirmed that "the main injury was one of a burst fracture of L4 which appears to have resulted from a direct vertical compression without any major flexion component, often seen following major epileptic fits." Mr Polke did not express any opinion as to the cause of the Applicant's epileptic fit although he records in his report that the Applicant was driving in bright and speckled lights through trees overhanging the road when he noticed a headache and that his wife took over the driving and that Mr Price subsequently began to fit and was driven by his wife to the Mackay Hospital.
29. On behalf of the Applicant, Mr Spittle outlined the "incident" which gave rise to the Applicant's injury (refer para 2 of these reasons). The Tribunal finds that the "incident" was the epileptic fit and this incident caused the injury to the Applicant namely, the compression fracture of L4. This finding is supported by the evidence of Mr Kierce, Mr Southby and Mr Kranz. The question the Tribunal must resolve is whether the incident which caused the injury was directly caused by the driving of a motor vehicle. For the reasons which follow the Tribunal does not so find and therefore the question of whether or not the fracture to T11 was caused by the "incident" or was a pre-existing injury is not relevant.
30. The Tribunal's attention was drawn to a decision of the Full Court of the Supreme Court in Trealor's case (TAC v Trealor [1992] VicRp 31; 1992 1 VR 447) where McGarvie and Gobbo JJ said as follows:
"In a passage sited in TAC v Hoffman [1989] VicRp 18; 1989 VR 197 at page 201, Wyndeyre J. said "the words injury caused by or arising out of the use of the vehicle" postulate a casual relationship between the use of the vehicle and the injury "caused by" denotes a "direct" or "proximate" relationship of cause and affect. "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 a vehicle is a merely casual concomitant, not considered to be, in a relevant casual sense, a contributing factor" Government Insurance Office (NSW) v R J Green and Lloyd Pty Ltd [1966] HCA 6; (1966) 114 CLR 437, at page 447." [Tribunal's underlining].
31. From the evidence presented during the course of the hearing, the Tribunal is not satisfied on the balance of probabilities that the injury suffered by the Applicant was directly caused by the driving of a motor vehicle.
32. One of the reasons put forward on behalf of the Applicant as to the cause of his injury, was the exposure to sunlight which caused him to suffer a migraine and/or an epileptic fit which was the "incident" which caused his injury.
33. Mr Southby in his evidence given to the Tribunal was reminded of the statement made by him in his report of 18 July 2000 that the epileptic fit suffered by the Applicant was brought on by very bright sunlight in mid afternoon with a dappled effect of the sunlight passing through the branches and leaves of trees and that if he had not been exposed to sunlight in this fashion, that is by travelling in a car, he would not have suffered the epileptic fit at that time. Mr Southby agreed that the words "by travelling in a car" could be substituted the words "walking on the beach". The Tribunal accepts that this concession made by Mr Southby has the effect that, in his opinion, the driving of the car becomes a coincidental nexus to the injury. Mr Kierce in his evidence stated that he was not given any information by the Applicant or his wife at the time of his examination of the Applicant concerning speckling of light through trees alongside the road which might have caused the Applicant to suffer a migraine.
34. Set out in para 22, Mr O'Brien expressed the view that the Applicant had a "spontaneous seizure" and, (refer paragraph 24), that his current spinal pathology related to the major fit and not the presence of him being in a motor car when the fit occurred.
35. There was conflicting evidence from the various medical witnesses as to whether bright sunlight could trigger a migraine, which in turn, caused the epileptic fit and Mr Kranz pointed out that bright light is a common factor in seizures but becomes less likely to be a factor as one gets older and that the earlier seizure which the Applicant had in 1986 was apparently not caused by light as it occurred after dark.
36. In the report from the Mackay Base Hospital referred to in para 6, no reference is made by the Applicant or his wife that the Applicant had a migraine or that the epileptic fit was caused or triggered by sunlight.
37. In all the circumstances the Tribunal is not satisfied on the balance of probabilities that sunlight or any dappling or speckled effect of sunlight immediately before or in the hours before the Applicant's fit was its cause. The medical evidence seems to indicate that exposure to bright sunlight could cause migraine, but if the migraine itself or sunlight were to be the trigger for the epileptic fit then the fit would follow immediately after any exposure. The Tribunal notes that in her statement at para 9 the Applicant's wife stated that "my husband sat in the passenger seat, and closed his eyes. I can recall him placing his hat over his eyes in an attempt to block the sunlight out". The Tribunal assumes that if the Applicant had his hat over his eyes it is unlikely that he would be subject to any dappling effect from sunlight.
38. Another factor which the Applicant asserted was the cause of his injury, was the sudden braking of the car by his wife when she became aware that he was fitting. Again the Tribunal is not satisfied on the balance of probabilities that the Applicant's wife braked the car in such a manner as to cause or contribute to his injury. There is no record from the Mackay Hospital that when the Applicant was admitted the cause of the injury was attributed by the sudden braking of the vehicle. She informed Mr Southby that she "stopped the car briefly and then drove to the Mackay Hospital". Mr Kierce, in history given to him was told that the Applicant was a passenger in the car at the time of the epileptic fit and that the car was stationary at traffic lights when the fit occurred.
39. In a recent Supreme Court decision Ross v TAC [2000] VSC 112; (1999) 16 VAR 421 where the plaintiff was driving his motor vehicle and was shot by an occupant of another vehicle, Beach J. at page 423 said:
"In my opinion the Senior Member of the Tribunal made no error of law in the matter. 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 but that he would reply "Someone shot me".
49. In the circumstances of this case the Tribunal likewise finds that the epileptic fit suffered by the Applicant was not directly caused by the driving of the motor car. Again, paraphrasing the Ross decision, if anybody would have asked the Applicant in this case, "What caused your injuries" , the Tribunal would expect the reply to have been "My epileptic fit".
50. In the circumstances the Tribunal will make a formal order affirming the decision of the Respondent.
___________________________
Price
TAC [2001] VCAT 1449
(1966) 114 CLR 437
The TAC's decision of 8 March 2000 was affirmed. Costs were reserved.