Smith v Transport Accident Commission [2005] VSCA 251

2 This is an appeal from a decision of the Victorian Civil and Administrative Tribunal ("the Tribunal") which confirmed a determination of the Transport Accident Commission ("the Commission") that an accident involving a bulldozer in a logging coupe in the State forest in East Gippsland was not a transport accident within the meaning of s.3 of the Transport Accident Act 1986.

3 The bulldozer in question was some ten feet, six inches wide, eighteen feet long and ten foot high at the top of its canopy. It weighed approximately 16 tonnes. It had a maximum speed of three miles per hour. It had steel caterpillar tracks on each side, fourteen feet long and twenty inches wide. Each track consisted of metal plates known as grousers with cleats or lugs, approximately two and a half inches high and twenty inches wide, fitted on the outside surface for traction. When on level ground fourteen of the grousers were in contact with the surface. The bulldozer had a blade at the front approximately ten feet, six inches long and three feet high and a logging winch at the rear. It was not registered and never had been. It had no seatbelts, horn, trafficators, brakelights, mudguards, headlamps, working lights or reversing beepers. The bulldozer did not travel on sealed surfaces, not only because of its weight but also because the cleats on the tracks would have destroyed the sealed surface.

4 A logging coupe is an area in the forest opened up by a bulldozer for logging. The logging coupe where the accident occurred was in the Wilkinson area in the Nuniyong Forest in East Gippsland about 15 kilometres from the very small town of Ensay. The coupe was created by the bulldozer out of virgin forest and bush on State forest land and was of considerable size. The bulldozer created the coupe by forming a road wide enough to allow logging trucks to travel along to a point at least forty metres from the entrance where a landing stage was erected. Deeper within the coupe from the landing stage, the bulldozer cut out "snig" tracks to enable the bulldozer to drag the logs felled by the tree fellers. At the landing stage the bulldozer stacked the logs to facilitate their removal by logging trucks. Schrader Logging Pty Ltd had an exclusive right from the Department of Sustainability and Environment[1] to log the coupe, and it took some months before the coupe was "logged out". Signs were erected at the entrance to inform passers-by that tree felling was being undertaken in the coupe and a Departmental officer acted to keep the public out of the coupe while the tree felling was in operation. Entrances to old "snig" tracks were blocked off with fallen trees or mounds of earth.

5 The appellant was employed by Schrader Logging Pty Ltd as a tree feller. The accident occurred when his saw became stuck in a tree and the bulldozer driver used the dozer to help free the saw. The bulldozer struck a dead branch and it fell and hit the appellant on the head, causing serious disabling injuries.

The legislative provisions

6 At relevant times s.3 of the Transport Accident Act defined "motor vehicle" as a vehicle within the meaning of s.3(1) of the Road Safety Act 1986 and a "transport accident" as "an incident directly caused by the driving of ... a motor vehicle." Section 3(1) of the Road Safety Act defined "motor vehicle", "highway" and "public place" as follows:

"'motor vehicle' means a vehicle which is used or intended to be used on a highway or in a public place and which has its own motive power (other than human or animal power) but does not include:

(a) a vehicle intended to be used on a railway or tramway;

(b) a motorised wheel-chair capable of a speed of not more than 7 kilometres per hour which is used solely for the conveyance of an injured or disabled person; or

(c) a vehicle that is not a motor vehicle by virtue of a declaration under sub-section (2)(b).

(a) a street, road, lane, bridge, thoroughfare or other place open to or used by the public for passage with vehicles and includes every carriageway, footpath, traffic island, nature strip and any area provided to separate vehicular traffic on any such street, road, lane, bridge, thoroughfare or other place; and

(b) any place that is a highway by virtue of a declaration under sub-section 2(a);

(a) any bridge, footpath, court, alley, passage or thoroughfare open to or used by the public; or

(b) any park, garden, reserve, or other place of any public recreation or resort; or

(c) any open place to which the public has or is permitted to have access, whether on or without payment for admittance; or

(d) any wharf, pier or jetty open to or used by the public; or

(e) any school or the land or premises in connection with it -

The decision below

7 Dealing first with the question of whether the bulldozer was "used on a highway" within the meaning of the definition, the Tribunal followed the view of Newton, J. in Newton v. Incorporated Nominal Defendant[2], that the expression "used ... on any highway" refers to actual user at the time at which the accident occurs, and thus concluded that the bulldozer was not "used on a highway". As the Tribunal put it:

"26. Newton, J. in Newton v. Incorporated Nominal Defendant ... pointed out that if a vehicle within the definition was a motor vehicle intended for use on a highway, it was to be characterised as a motor vehicle, no matter what its particular use was at the relevant time. But, His Honour observed that if a vehicle were not intended to be used on a highway, it would not be a motor vehicle except when it was actually being driven on a highway.

27. In the present case, I am satisfied that the bulldozer was not being driven on a highway when the Applicant's accident occurred."

8 As to whether the bulldozer was "intended to be used on a highway", the Tribunal held that the question was to be determined objectively in accordance with what was said by this court in Transport Accident Commission v. Ball[3] and that judged objectively the characteristics of the vehicle were not those of a vehicle intended to be used on the highway.

9 As the Tribunal put that:

"29 The characteristics of this vehicle were not those of a road-going vehicle, in my opinion.

30 I have set out the relevant parts of Schrader's description of the bulldozer, which description I accept as accurate. Its size, its maximum speed, the absence of seat belts, horn, traffic indicators, brake lights, mudguards, head or working lights, beepers, all give force to the view that the bulldozer was not intended to be used on a highway. The provision of a blade in front and a logging winch behind heighten that view.

31 Finally, it is fitted with cleats 21/2" high of which 14 were uniformly on the ground when it is driven. To paraphrase a colourful depiction given by Newton J, if this bulldozer had been driven on a highway it would have been as much out of place as a loose dinosaur.

32 There is evidence of occasional use of a bulldozer on "C" class roads. This use, accepting the evidence at its best for the Applicant, is of such occasional and limited use, that it falls far short of suggesting to me that it was intended to be used on a highway. Further, it could not have obtained registration as a motor vehicle."

10 Finally, on the question of whether the vehicle was used or intended to be used "in a public place," the Tribunal held that it was not because in fact the coupe was not a place which the public frequented.

11 As the Tribunal put that:

"21. ...I conclude that this coupe was not a public place. The evidence concerning the forest reserve surrounding the coupe was that 4-wheel-drive vehicles were occasionally seen on the roads through the forest, save for logging trucks and 4-wheel-drives associated with the logging operations, which were traversing the road from Ensay to the coupes regularly whilst logging operations were being carried on therein. These vehicles, and those of forestry officers were the only ones to enter a coupe whilst it was in operation. Secondly, the evidence was that no witness had ever seen a stranger or a vehicle unrelated to the operation within a coupe whilst it was operating. Thirdly, signs were erected warning that tree felling was in operation. In my opinion, the evidence uniformly pointed to the exclusion of the public from the coupe. Indeed, the Departmental officer, Walker, gave evidence that he would act to keep any stranger out of the coupe whilst tree-felling was occurring. Consequently, I am satisfied that, at the time of the Applicant's accident, the coupe was not a public place."

The appellant's contentions

12 The appellant's first and principal contention is that the Tribunal applied the wrong test of whether a vehicle is "used on a highway" within the meaning of the definition. Counsel for the appellant submitted that judged according to the correct test, it is plain on the evidence that the bulldozer was used on a highway, namely "C" class roads outside the coupe.

13 The Notice of Appeal also contends in the alternative that, even if the bulldozer were not used on "C" roads outside the coupe, it is plain that it was used or intended to be used on "D" roads in the coupe, and that it was not open to the Tribunal on the evidence to find that the "D" roads were not highways within the meaning of the definition, and in the further alternative that, even if the "D" roads in the coupe were not highways within the meaning of the definition, the bulldozer plainly was or was intended to be used in the coupe and that it was not open to the Tribunal on the evidence to find that the coupe was not a "public place".

14 In the course of oral argument however, counsel for the appellant expressly abandoned grounds of appeal 3F, 3G, 4 and 5, such that the only question now to be decided is whether the Tribunal applied the wrong test of whether a vehicle is used on a highway within the meaning of the definition.

Used on the highway

15 In my judgment the Tribunal did apply the wrong test. In Transport Accident Commission v. Serbec[4] Marks, J. with whom Gobbo, J. agreed, said that:

"... I doubt whether 'use' on a particular isolated occasion is sufficient to determine it 'is used'. If it is correct that the Tribunal rested its decision on such limited or restricted use, I consider that it was in error. In my opinion, Blackburn, J. in Elizabeth Valley Pty Ltd v. Fordham[5] correctly interpreted the words "is used" in the context of the statute there under consideration. His Honour clearly was of the view that an isolated use on a single occasion would be insufficient and I am inclined to consider that, if there were nothing more here than evidence of such isolated use, that it would be insufficient to allow the conclusion to be drawn that the definition had been satisfied.

Insofar as the late Mr Justice Newton might be understood to have so decided in Newton, it seems that it was unnecessary to have done so and his remarks should be regarded as obiter not to be followed.

There was, however, in Newton, more than ample evidence for concluding the use of the Caterpillar at the time of the accident was its ordinary use. Indeed, as I understand it, it was not used in any other way. It was not used on a highway or road but transported to work sites by low loader.[6]"

16 The interpretation which Blackburn, J. put on the words "is used" in Elizabeth Valley Pty Ltd v. Fordham[7] was as follows:

"The difficulty lies in the words 'is used.' To attribute a reasonable, rather than an unreasonable, intention to the legislature, I think some qualifications must be implied ...

No doubt there is an element of contemporaneity in the true construction of the phrase; I would not be justified in saying that [something] 'is used' if the evidence showed that it was not used later than, say, two years before the material time. I think I must also hold that 'is used' means something like 'is normally used' or 'is repeatedly used' - perhaps the sense of 'is in use' most nearly conveys what is required. I would not, I think, be justified in saying that [something] is used within the meaning of the phrase if the evidence showed, say, one single instance of use on the day before the issue of the writ."[8]

17 Counsel for the respondent invited us not to follow Serbec and Elizabeth Valley, but to hold instead that the question of whether a vehicle "is used on a highway" within the meaning of the definition should be decided on the basis of the Newton test of whether the vehicle was being "used on the highway" at the time of the accident. But I am not disposed to accept that invitation. Whatever difficulties attend the application of Serbec test, there are at least as many attaching to the application of the Newton test, and moreover and perhaps more importantly, it is now thirteen years since Serbec was decided and it has since been approved by the Full Court in Siciliano[9] and by this court in Ball[10].

18 So far as we know, and counsel for the respondent has confirmed that it is so, the respondent has never before since Serbec contended that Serbec was wrong, and in the thirteen years in which the respondent has been prepared to abide it, numerous cases have been processed and decided on the basis of it. In those circumstances, in my view, it is just too late in the day for this court, comprised as it now is, to change the status quo. For better or worse, the law is that the question of whether a vehicle is "used on a highway" within the meaning of s.3 of the Act, is not to be decided simply on the basis of whether the vehicle was being used on the highway at the time of the accident. If there is to be a change to that, it will have to come from Parliament.

19 Consequently, isolated use on a single occasion will ordinarily be insufficient to satisfy the test. The question is ordinarily to be decided on the basis of whether the vehicle is normally or repeatedly used on a highway. It follows, in my opinion, that the judge below erred in law, and accordingly that the appeal should be allowed.

20 The question then is whether we should remit the matter to the judge below for further hearing or decide the matter ourselves. In the event, however, both sides have urged us to adopt the latter course on the basis, it is said, that we are in just as good a position as the trial judge to decide the matter, and that it is more expeditious and efficient for all concerned if the matter is finally disposed of now. I am prepared therefore to adopt that course.

21 Counsel for the respondent submitted that there is no, or at least insufficient, evidence on which to base a finding that the bulldozer was normally or repeatedly used on a highway. It is true, he conceded, that the judge below found that the bulldozer was driven, or "walked" as it was called, along "C" class roads from one coupe to another not more than four times per year, but in his submission that does not mean, nor is there basis to find, that the bulldozer was moved four times a year or indeed any other number of times per year along the "C" class roads. Counsel contended that so far as the evidence goes, the most that could be said is that there is "occasional or isolated use", which on any analysis is insufficient for the purposes of the test.

22 I do not agree. To begin with, in a letter dated 19 February 2002, from Mr Ron Schrader, a director of Schrader Pty Ltd, to the senior litigation officer of the respondent, it was said, amongst other things, "The bulldozer and all other logging machinery is moved from coupe to coupe by driving through the bush or along the side of the logging tracks as it is illegal to drive them on the forest roads. Where the destination is of any great distance, the machinery is floated on a low-loader".

23 Next, in the evidence given by Rodney Alan Walker, who was a forester working in the area at the relevant time, it was said that there is sometimes in conjunction with the contractors and the department, an upgrade of a road on the way to a coupe, so that means that they might push trees over and widen it out so as to get better access, and that in moving from one coupe to another, the bulldozer would either be "walked" along the side of the road if the distance were less than five kilometres or, if it were greater, would be taken by low-loader. Those practices, he said, were acceptable to the Forest Department and had been implemented with the approval of the senior forester in that district. According to Mr Walker, there was also an established practice, that had been worked out in conjunction with the Department, of placing a four-wheel drive vehicle in front of, if not also behind, a bulldozer as it was so "walked" along the "C" class road.

24 Another witness, Mr Gary Robert Featherstone, said, or at least confirmed, that he had seen bulldozers travelling on public roads between coupes in the Wilkinson area of the Nuniyong Forest, and confirmed also evidence given by another witness of occasions when logging bulldozers might be moved from one coupe to another when the distance was less than five kilometres between them.

25 Cross-examined, he said, "Yes, it is. In my statement I said ten kilometres. There's no hard and fast rule. It depends upon availability, floats, the preferences of the contractors, the ability - the speed that the dozer can walk, the condition the dozer is in. So it would vary. Generally we had a preference for the bulldozers not to walk directly through the bush. I'm sure that it probably did happen on occasions."

26 Pressed further, he said that "My recollection is that we had an instance where a road was actually damaged by a bulldozer walking on it and we then asked the contractors to notify us and get permission before walking on it and we then asked the contractors to notify us and get permission before walking on any roads. I understand that those rules were applied rigorously when they were first brought in, but then progressively relaxed. A number of contractors - often it was impractical for them to contact us in time and it really depended on the class of the road. If it was a minor track quite often they would do it and then seek permission afterwards. It was probably not a formal permission as well as - probably as much as a notification."

27 It is true, as counsel for the respondent pointed out, that in the course of cross-examination Mr Featherstone conceded, or at least acceded to the proposition, that such use of the bulldozers on "C" class roads by "walking" from one coupe to another was "isolated and limited uses", but I do not regard that as determinative or, amongst the totality of the evidence, particularly significant. To begin with, the characterisation of the frequency of the use cannot take the matter any further than the direct evidence as to frequency of use.

28 In the second place, it appears to me apparent from the totality of the evidence that Mr Featherstone's characterisation of the use of the bulldozers on the "C" class roads was confined to the one aspect of that use.

29 In the third place, Mr Featherstone also said that a contractor might harvest somewhere between six and ten coupes a year, so "We'd only have to move six or ten times a year."

30 Counsel for the respondent submitted that Mr Featherstone's statement should not be regarded as evidence that there were at least six to ten uses of the "C" class road by the bulldozer each year. In counsel's submission, the statement was open to more than one interpretation and there was evidence given by Mr Walker which suggested that the user was less. That may be so. But it is significant that what was said to be the contrary evidence given by Mr Walker was not put to Mr Featherstone in the course of his cross-examination. I am therefore inclined to draw the inference, consistently with what was said by the Court of Appeal in New South Wales in Commercial Union Assurance Co of Australia Ltd v. Ferrcom Pty Ltd[11], that anything Mr Featherstone might have said in response would not have been favourable to the respondent.

31 Most importantly perhaps, there is the evidence of Mr Schrader, to whom I have already referred. In the course of his cross-examination by counsel for the appellant, he was asked these questions and gave these answers:

"Question: ... Well, anyway, you offloaded at that point if you can get it in - that is, where the [f]orestry road is - and then you move through the bush along what we'll call timber track roads?

Answer: That's right, with permission.

...

Question: Yes, with permission from the [D]epartment. But that's the road that you as the timber harvester make?

Answer: Yes, all the roads in the Wilkinson area I built originally.

...

Question: That vehicle - you've used that bulldozer that we're talking about. You've used it to make roads between various log landings within the coupe?

Answer: Yes.

Question: You've then also maintained those roads using that dozer because of the heavy nature of the work that the road takes. Is that not right?

Answer: Only if I might have to by the Department.

Question: Yes, but what you say is everything you do with their approval?

Answer: That's right.

Question: And that's what you've done. This work was undertaken I'd suggest to you by this dozer on a daily basis over the last 20 years plus?

Answer: When it's working, yes."

32 It was submitted by counsel for the respondent that the qualified nature of the last of those answers was such that one could not draw from it the conclusion that the dozer was used on a daily basis for the sort of maintenance work to which the witness referred. Perhaps that is right. It is, however, interesting to contrast the answer with what was said by the witness in chief in paragraph 31 of his statement, namely "In paragraph 14 the roads referred to were access roads to the log landing. These roads required constant maintenance." There is force in the submission made by counsel for the appellant that, when one combines the answers given by Mr Schrader in cross-examination as to the use made by the bulldozer on a daily basis for maintenance work with the evidence given by him in-chief in paragraph 31 of his witness statement, it implies a fairly high degree of probability that there was frequent, if not, indeed, daily use of the bulldozers on the roads for maintenance work.

33 To a degree that is further confirmed by what was said by the witness in paragraph 22 of his statement, namely: "The use of the bulldozer during harvests prior to the Ensay harvest in November 1995 was always the same." To some extent it too implies that there was a pattern of consistency, or regularity, more in tune with normal, or repeated, rather than isolated, or occasional use.

34 Finally, in the cross-examination of Mr Schrader he was asked these further questions and gave these further answers:

"Question: I'm wanting to know whether what you said in the letter - I interpolate that's the letter sent to the legal officer of the respondent to which I've already referred - is correct?

Question: The bulldozer and all other logging machinery is moved from coupe to coupe by driving through the bush, or along the side of the logging tracks?

Answer: That's right. There's an exemption from the department if I can't get through the bush. It also states there that are parts of the bush you're not allowed to drive through so you get permission from the forestry to use their road, or the edge of their road.

Question: To use their road or the edge [of] the road?

Answer: Well ...? ... Or whatever road there is.

...

Question: No, and, similarly, I think you said at paragraph 12 of your statement, that where a float vehicle can't get to the coupe the dozer then walks upon the edge of the road?

Answer: That's right; we get permission.

...

Question: You've been asked by the department on a number of occasions to assist them where your dozer or dozers venture out into the roads also have you not?

Answer: When I'm on, (indistinct) yes.

Question: That applies to this particular dozer?

Answer: Yes.

Question: That includes, I think you say at paragraph 29 of your statement, to remove fallen trees?

Answer: Yes.

Question: Is that right?

Answer: Yes.

Question: To widen the road?

Answer: Yes, if there's a request, yes.

Question: Assisting with a car that had rolled over?

Answer: Cars, or any action in the sawmill (indistinct) have an operator.

Question: You've done that, have you?

Answer: Yes.

Question: In clearing timber?

Answer: When we're working on the road, like that we would put warning signs up or block the road off with a four-wheel drive.

Question: Removing clearing timber from the side of the road necessarily involves moving onto the road to undertake that work, you refer to also?

Answer: Yes.

Question: Is that right?

Answer: That's right.

Question: Has this bulldozer been involved in going along roads for the purpose of fire fighting to access?

Answer: Yes.

Question: I think you indicated in your statement at paragraph 14, you identified what's called C and D class roads and indicated that the D class roads - ordinary vehicles would have difficulty transversing them consistently?

Answer: That's right."

35 Counsel for the respondent conceded that for the purposes of determining the frequency with which the bulldozers were used on the "C" Class roads it was not impermissible to aggregate use of the bulldozers for activities such as grading the roads, or righting an overturned vehicle, or clearing for bushfire purposes, with use by "walking" the bulldozers along the edge of the road from one coupe to another. It was not suggested that there was any distinction between use of the bulldozer as a vehicle and use of the bulldozer as a bulldozer.[12]

36 All things considered, I am satisfied on the balance of probabilities that the use of the bulldozer on the "C" class roads is on the evidence available properly to be characterised as normal or repeated use on the highway and, consequently, I am satisfied on the balance of probabilities that the bulldozer was a vehicle within the meaning of the definition. I would make orders accordingly.

37 I agree with the reasons stated by Justice Nettle. There are some additional observations I wish to make. It was contended by Mr Noonan for the respondent that the approach in the judgment in Newton v Incorporated Nominal Defendant[13] was the appropriate analysis to be applied in this case and that accordingly the judge below was correct and the decision should be upheld.

38 It was submitted by Mr Noonan that the decision in Transport Accident Commission v Serbec[14] was wrong on the "is used" basis and for the reasons set out in detail in the judgment of Nettle J.

39 During the course of submissions it was acknowledged by Mr Noonan, on instruction from the respondent following the luncheon adjournment, that the respondent has, for administrative purposes and also in litigation, conducted matters

and disposed of matters on the basis of the presumption that the decision in Serbec was the correct statement of the law. Notwithstanding that position, it was argued by Mr Noonan during the course of submissions that for reasons of certainty in litigation and the disposition of these types of matters, it was desirable and preferable that the law as stated in Newton be the law applied by this Court in this case, and therefore henceforth in this State.

40 This Court and the Trial Division of the Supreme Court has applied Serbec on a number of occasions.[15] On the basis of the authorities both of the High Court and this Court, it is undesirable that the decision in Serbec be brought to account and impugned at this point in time given the period over which it has been followed by this Court and the Trial Division, and also by the Transport Accident Commission on an administrative basis. I agree with the reasons stated by Nettle J in particular in this respect that it would be undesirable to depart from the previous decision in Serbec.

41 It was submitted by Mr Noonan in the course of argument that to follow Serbec would lead to unsatisfactory results and that, as I have already indicated, it was desirable for reasons of certainty to follow Newton. Be that as it may, given the way in which the law has been applied in this State now for many years, it is, in my view, a matter of policy for the legislature to deal with and it does not lie with this Court appropriately to attempt to amend the law in light of the approach that has been taken in the preceding number of years. It is, as I say, a matter for the legislature, not for this Court.

42 Accordingly, I am of the view that the appeal should be allowed and that the determination of the respondent made on 22 February 2002 ought be set aside.

43 I agree in the conclusions reached respectively by the learned Chief Justice and Nettle, J.A. and with their reasons. I would add only a few observations of my own. Their Honours have referred to the very proper concession made by counsel for the Commission, on instructions, that until this case - indeed, until this appeal - the Commission has proceeded, both administratively and in litigation, on the basis that Serbec was correct and provided the test to be applied.

44 It is apparent from the reasons of the Tribunal that, at first instance, the Commission approached this case on exactly that basis. I refer specifically to paragraph 19 of the Tribunal's reasons for judgment, which records a submission by counsel for the Commission that "occasional use by such a vehicle upon a highway or public place does not amount to use under the Act." That submission would have no place in a case run on the basis of Newton.

45 It seems to me to be most undesirable that a statutory authority should seek, on an appeal in a case such as this, and without any advance notice, to overturn an established line of authority. For the reasons given by Nettle, J.A., I would not accept the invitation to re-consider the correctness of Serbec. In deference to the argument advanced on behalf of the Commission, however, I should add that I would, in any event, re-affirm the decision in Serbec. In my respectful opinion, what was said in that case about the meaning of "is used" - as exemplified by its application by Bongiorno, J. in Lees - was clearly correct.

46 As Serbec very clearly showed, the key question arising under that part of the definition of "motor vehicle" is as follows: "Looking at the nature and extent of the use on the highway to which the particular vehicle has been put, can it be said that it is a vehicle which 'is used' on a highway?"

47 In the present case, for the reasons given by Nettle, J.A., the answer in my view is clearly "yes". It can be said of the bulldozer in question that, in the ordinary course of its use, it is called upon to perform functions which involve its using a road or being put into use on a road. That being so, it seems to me to be a perfectly appropriate use of language to say that it is a bulldozer which "is used on a highway".

48 When asked by me whether it was the Commission's view that the rule in Serbec was an unsatisfactory basis for determining entitlements to transport accident benefits, senior counsel for the Commission confirmed (on instructions) that it was. The reason given by counsel was that the Serbec test created uncertainty for all those affected by any accident to which the first limb of the definition of "motor vehicle" applied. The uncertainty arises because it will always be a question of fact and degree as to whether the amount of usage of the particular vehicle on a highway will or will not be sufficient to enable it to be characterised a vehicle which "is used" on a highway.

49 I agree that Serbec appears to be a quite unsatisfactory test for discriminating between those cases where transport accident benefits are payable and those which are not. Since I agree with the learned Chief Justice and Nettle, J.A. that this is a matter for the legislature, it may be helpful to record some of the unsatisfactory aspects of the test which emerged in argument today.

50 The first - and most obvious - point is that the application of the Serbec test depends on questions of fact and degree about how and when and why, and how often, and for how long, a particular vehicle has been used on a highway. In the present case, the accident took place off the road, in a forest. It seems to me to be altogether unsatisfactory as a matter of principle that, whereas this applicant will receive benefits because there had been sufficient use of the particular bulldozer on the road at other times, another applicant might not receive benefits because the particular bulldozer involved in the relevant off-road accident had not been used on the road often enough.

51 That is, as I understood it, exactly the kind of uncertainty to which senior counsel for the Commission was referring. The uncertainty creates an incentive for the Commission, or an applicant, to take matters like this to VCAT, since there is really no way of predicting what a particular tribunal or court will decide constitutes sufficient "use".

52 Secondly - as was apparent in argument and emerges from the reasons for judgment in the Tribunal - if this particular accident had involved a brand-new bulldozer, the applicant would have had no entitlement to benefit. The accidental circumstance that it was an old bulldozer, which had been used normally and repeatedly on the road, means that he will get statutory compensation. If it had been a new bulldozer - albeit arriving to take over exactly the functions performed by the old one - then it could not have been said that the bulldozer "is used" on the highway.

53 Thirdly, I refer to the example Mr Noonan himself gave in argument, of the atypical or exceptional use of a non-road vehicle on the road. On the Serbec test, an accident on the road involving that vehicle would give rise to no entitlement. The farm vehicle was the example Mr Noonan gave. If that vehicle had never been used on the road, but there was an emergency and a sick child was being rushed to town and there was an accident on the road, a person injured in the accident would have no entitlement to benefits.

54 It can be seen that the Serbec test produces distinctions which Parliament cannot have intended, distinctions between those who receive and those who do not receive transport accident compensation in cases to which the first limb of the definition of "motor vehicle" applies. They are distinctions for which no rational justification exists.

55 I should add, however, that substituting the Newton test for the Serbec test would not be the solution. The Newton test - focusing on where the vehicle was at the time of the accident - produces its own anomalies. For example, as was pointed out in argument, where a vehicle was veering on and off the road the entitlement to benefits would depend upon whether the vehicle was on or off the road at the time the innocent bystander was struck. Once again, that would seem to be a distinction Parliament could not have intended. It is not a satisfactory basis for determining entitlement.

56 Mr Nash gave the further example of accidents occurring just inside, and just outside, the farm gate. On the Newton test, benefits would be denied in the first case but available in the second. It is difficult to see how any rational system of transport accident compensation could simultaneously regard the former as non-compensable and the latter as compensable.

57 This is, undoubtedly, a matter for the legislature. The only reason I have thought it appropriate to mention these considerations is that they have emerged in the course of argument advanced on behalf of the Commission directed at changing the test. We have rejected that submission, but it is significant that the regulatory authority itself regards the present test as unsatisfactory. There are clearly some serious questions of entitlement which need to be addressed urgently. Otherwise there will continue to be unnecessary litigation on fine questions of fact about how much use of a vehicle is enough.

[1] As it is now called.

[2] [1970] VicRp 32; [1970] V.R. 257.

[3] [1999] 1 V.R. 64 at 66.

[4] (1993) 6 V.A.R. 151.

[5] (1970) 16 F.L.R. 459.

[6] (1993) 6 V.A.R. at 155-156.

[7] (1970) 16 F.L.R. 459.

[8] ibid at 464-465.

[9] Siciliano v. Acme Knitters & Dyers Pty. Ltd. [1994] VicRp 44; [1994] 1 V.R. 632.

[10] [1999] 1 V.R. 64 at 67.

[11] (1991) 22 NSWLR 389 at 419; R. v. G.E.C. [2001] VSCA 146; (2001) 3 V.R. 334 at 345; To Ho Ma Pty Ltd v Allen [1999] NSWCA 202; (1999) 47 N.S.W.L.R. 1 at 4; Cross on Evidence, Aust. Ed. at [1215]; cf. Dyers v The Queen (2002) 210 C.L.R. 285 at 295 [17], per Gaudron and Hayne, JJ.

[12] cf. Ireland v. Haesler [1959] VicRp 2; [1959] V.R. 4 at 8.

[13] [1970] VicRp 32; [1970] V.R. 257.

[14] (1993) 6 V.A.R. 151.

[15] See, eg, Transport Accident Commission v Ball [1999] 1 V.R. 64; Transport Accident Commission v Lees [2002] VSC 397; Transport Accident Commission v Vanbenthem [2002] VSC 398.