Ross v Transport Accident Commission [2000] VSC 112

9. The facts giving rise to the plaintiff's claim to the Commission can be summarised as follows.

12. At approximately 1.00 a.m. on 19 March 1999 the plaintiff was driving his car along the Geelong/Port Arlington Road.

15. As he was approaching Leopold another car which had been travelling behind him, drew alongside his car. A person in the other car, and the plaintiff is unable to say whether a passenger or the driver, then shot the plaintiff a number of times in the right arm, the chest and right armpit.

18. The Commission rejected the plaintiff's claim for compensation on the ground that the plaintiff was not injured in a transport accident within the meaning of the Act.

21. "Transport accident" is defined in Section 3 of the Act. The definition reads:

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

25. The plaintiff appealed from the Commission's determination to the Victorian Civil and Administrative Tribunal. A Senior Member of the Tribunal affirmed the decision of the Commission.

28. It is in respect of the Senior Member's decision that the plaintiff seeks leave to appeal to this Court.

31. The Senior Member gave extensive written reasons for his decision. During the course of his reasons he canvassed the relevant legislative provisions, certain authorities touching upon the matter and the submissions of counsel.

"I am unable to find that the shooting incident in the present case was directly caused by the driving of a motor vehicle or that the injuries that the Applicant sustained were so caused. Even accepting that the assailant's vehicle was used to induce the Applicant to slow down in the belief that it was a police car and then to allow the assailant to move into a position where he was able to shoot the Applicant, the causa causans in this case was not the use of the vehicle but the action of the assailant in discharging the firearm. I accept that there was a web of causation in which the car played a prominent part so that it could fairly be argued that the shooting arose, at least in part, out of the use of the car. However, on the Act as it is now worded, that is not the question. The question is whether the incident in question, and the Applicant's injuries, were directly caused by the driving of the car."

"In the present case there was nothing about the assailant's vehicle that predisposed the Applicant to injury. What caused the injury was the decision (presumably deliberate) of the assailant to shoot the Applicant. That is the direct cause, and indeed, the only direct cause. Each of the other factors that goes to make up the web of circumstances leading to the shooting, including the driving, may well be said to have allowed the shooting to occur, in the sense that 'but for' that factor, it would or could not have happened. But the two provisions require more than mere causation. To satisfy the Act, the driving must be a 'direct cause' of the incident and the injury. There was really only one direct cause. The shooting was entirely dependant upon the will of the person firing the gun. The car may have provided the platform but it did not cause him to do what he did. It might be argued that the shooting 'arose out of' the use of the car because the car was used to accomplish it, but the car was not in my view a direct cause, much less the causa causans of the shooting."

42. 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.

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

48. In any event whether an injury or incident was directly caused by the driving of a motor car is a question of fact. See the decision of Mandie, J. in Transport Accident Commission v. Iacuone[1].

51. For the plaintiff to succeed on appeal he would need to establish that the finding made by the Senior Member was not one which was open to him to make. In my opinion it was.

54. The appeal will be allowed. The order of the Master made 22 March 2000 is set aside. The plaintiff's application for leave to appeal is dismissed. I order that the plaintiff pay the defendant's costs of the application and the appeal.

[1] (1998) V.S.C. 192