Transport Accident Commission v Billett [2004] VSC 406

Supreme Court of Victoria|2004-10-15|Before: KAYE J.

ACCIDENT COMPENSATION - "transport accident" - Transport Accident Act 1986, s.3(1) and (3) - Meaning of "directly caused by the driving of a motor car or motor vehicle" - Whether open to Tribunal to find that injury was directly caused by the driving of a motor vehicle - Appeal - Point not taken before Tribunal.

The respondent and his wife live on a property at Cobden in the Western District. He is a self-taught mechanic and regularly repairs and services a Mazda three tonne truck owned by his son. On the date 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 in respect of which he sought compensation under s.35 of the Act.

Section 35 provides that a person "who is injured as a result of a transport accident" is entitled to compensation in accordance with the Act. Section 3 (1) of the Act defines "transport accident" as follows:

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

Similarly, s.3(3)(c) of the Act provides:

(c) a reference to an injury or death in or as a result of or resulting from a transport accident, or to a person who is injured or dies in or as a result of a transport accident, is a reference to an injury or death directly caused by the driving of a motor vehicle ... or to a person who sustains injuries that were ... directly caused by the driving of a motor vehicle ... ".

The critical question before the Tribunal was whether the incident, in which Mr Billett sustained his injury, was "directly caused by the driving" of the truck. The Tribunal held that the incident in which Mr Billett was injured was directly caused by the driving of the truck. Accordingly the Tribunal set aside the decision of the Commission and remitted the matter to the Commission for consideration in accordance with its reasons. The Commission now appeals against the decision of the Tribunal.

At paragraph 10 of her reasons, the Member of the Tribunal made the following findings of fact based on the evidence which had been adduced before her:

"(a) On 6 March 2002 the applicant drove the truck a short distance from the machinery shed on his property into the yard, to work on the lights on the truck.

(b) He parked the truck at an angle immediately behind his son's station wagon.

(d) After about half an hour he turned the engine off, leaving the key in the ignition. He also left the truck in gear and he failed to engage the hand brake sufficiently or at all.

(e) About an hour after he had driven the truck out of the shed and parked it, he leaned into the truck to turn on the ignition. At the time he was standing outside the truck and he had opened the driver's door for this purpose.

(f) The truck engine started and the truck moved forward, causing him to become caught between the front of the tray of the truck and the station wagon.

(g) The applicant suffered injuries as a consequence of being so caught.

(h) He would not have suffered such injuries if he had not driven the truck to the position in which he parked it, behind the station wagon."

After referring to the relevant provisions of the legislation, the submissions of counsel, and some authorities which had been placed before her, the Tribunal then concluded, based on its findings of fact, that the incident in question was directly caused by the driving of a motor vehicle. The basis of that conclusion is contained in the following two paragraphs of the Tribunal's reasons for decision:

"25. 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.

26. 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."

The alternative submission of Mr Schulze was based on s.3(1A) of the Act to which I shall return later in these reasons.

By its notice of appeal the Commission relied on three grounds of appeal. As argued before me, those grounds centred on the definition of "transport accident" in s.3(1) of the Act. They were condensed into two principal submissions by Mr D. Beach SC who appeared with Mr P. Solomon on behalf of the appellant, namely:

(1) The Tribunal applied the wrong test of causation. In particular the Tribunal applied the "but for" test of causation, and not the correct test of "direct cause".

(2) The Tribunal confused the concepts of "driving" and of "use". In particular the Tribunal, in reaching its conclusion, relied on two facts which were facets of the use, but not of the driving, of the vehicle. Those facts were that the respondent had left the vehicle in gear, and that he had not applied the hand brake properly or at all, at the time at which he turned off the engine of the vehicle after working on it. Properly analysed, the only facets of driving were those summarised in paragraph 10(a) and (b) of the findings of the Tribunal. The incident was not directly caused by either of those facets of driving of the vehicle.

In response, Mr Keogh who appeared with Mr Schulze on behalf of the respondent before me, submitted:

(1) The Tribunal did apply the correct test of causation. Notwithstanding that the Tribunal, in its reasons, used the phrase "but for", nevertheless the Tribunal applied the test of predominant cause, and referred correctly to the relevant authorities.

(2) In respect of the first submission advanced on behalf of the appellant Mr Keogh made the following submissions:

(a) The appellant should not be permitted to make that submission. At the Tribunal the appellant did not, either in cross-examination or in final address, seek to contend that, if the brake had been left off and the gear engaged after the completion of repairs (as distinct from being in that condition after the vehicle was parked by Mr Billett), those two facts were features of the use, rather than of the driving, of the vehicle. At the Tribunal the Commission's submission was simply that Mr Billett was not driving the vehicle at the time of the accident, and that one hour had lapsed between the time when he last drove the vehicle and the happening of the accident.

(b) In any event, on the facts as found by it, the Tribunal did not err in finding that the incident was directly caused by the driving by Mr Billett of the vehicle.

The test of causation

In order to succeed before the Tribunal the applicant was required to establish that the incident was "directly caused by the driving of a motor car or motor vehicle" pursuant to s.3(1) of the Act. In Transport Accident Commission v Iacuone[1] Mandie J traced the history of that provision and in particular noted that the definition of a "transport accident" had been successively narrowed by two parliamentary amendments. The relevant history of the section is as follows:

(a) In the 1986 Act "transport accident" was defined to mean "an incident caused by or arising out of the use of a motor car".

(b) In 1988 the definition was amended so that a "transport accident" meant "an incident directly caused by, or directly arising out of, the use of a motor car or motor vehicle".

(c) In 1994 the definition was further amended so that "transport accident" thereafter was defined in s.3(1) in its current form, namely to be confined to an incident directly caused by the driving of a motor car or motor vehicle.

That history of the definition of "transport accident" is relevant for two reasons. First, it evidences an ongoing parliamentary intention to narrow the scope of the concept of a "transport accident". Secondly, authorities relating to the meaning of a "transport accident", and its statutory predecessors, must be treated with some caution.

In Transport Accident Commission v Jewell[2] the Full Court considered the definition of "transport accident" before the operation of the 1994 amendments. In that case the respondent drove his truck back to its shed. He noticed that the ignition key had broken off in the ignition switch. He switched the engine off by pulling out the stopper, and then removed the ignition assembly and replaced it. In order to check that he had correctly rewired the ignition switch, while leaning into the engine compartment from the side of the truck, he turned a spare key in the ignition. The truck moved forward crushing and injuring the respondent. The Transport Accident Commission denied liability. The Administrative Appeals Tribunal upheld the respondent's appeal, holding that the injuries directly "arose out of" the driving of the vehicle by the respondent. The appeal of the Commission to the Full Court was dismissed. In considering the then definition of "transport accident", Tadgell J (with whom Ormiston J agreed) made the following observations[3] which are pertinent to the present case:

(a) Whether an injury or incident was one "caused by or arising out of" the use of a motor vehicle is a question of fact.

(b) 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".

(c) The words "caused by" do not mean "solely caused by".

(d) It is futile to strive to enunciate a general proposition the application of which would provide a ready solution in any particular case.

(e) The insertion of the word "directly" in the 1988 amendments adds something to the legal concept conveyed in the context of "caused".

(f) 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.

In Jewell's case the court did not need to decide whether the respondent's injury was directly caused by the incident. It was sufficient for the court to uphold the decision of the Tribunal that his injury directly arose out of the driving by him of the vehicle. In Transport Accident Commission v Iacuone[4], Mandie J was concerned with the ambit of the phrase "directly caused by the driving of a motor vehicle" in s.3(1) of the Act. In that case a motor vehicle collided with and came to rest against a tree across the street from the respondent's home. The respondent, having heard the crash, and having telephoned the emergency services, then walked barefooted to the scene of the accident in order to render assistance. However, by that time the occupants of the vehicle had already been conveyed to hospital. The respondent commenced to walk back to his home when a police car arrived. The respondent walked to the police car and spoke to them in order to assist the police in their investigation. He then walked home. There he noticed for the first time that his left foot was bleeding. A glass piece from the windscreen of the vehicle which had been involved in the accident had embedded itself in the respondent's foot. The respondent suffered a number of complications as a result of that circumstance, and ultimately his left leg was required to be amputated because his left foot had become gangrenous. Based on those circumstances the Administrative Appeals Tribunal found that the applicant's injury was directly caused by the driving of the vehicle. The Commission appealed to the Supreme Court. Mandie J dismissed that appeal, holding that it could not be said that it was not open to a reasonable tribunal, applying the correct test of causation, to reach the conclusion which it did on the ultimate question of fact relating to causation.

In reaching that conclusion Mandie J referred to the propositions contained in the judgment of Tadgell J in Jewell's case to which I have referred above. His Honour then stated:

"Just as the words `arising out of' connote a causal relationship less proximate or immediate than the word `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...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"[5].

The first main submission advanced by Mr Beach was that the Tribunal in substance substituted the "but for" test of causation for the statutory test of "directly caused by". That submission was based on paragraph 25 of the Tribunal's reasons to which I have referred above.

In March v E. and M.H. Stramare Pty Ltd and anor[6] the High Court held that at common law it was generally necessary, but not always sufficient, for a plaintiff to show that "but for" the negligence of the defendant the plaintiff would not have sustained injury. It is clear from the dicta of Tadgell J in Jewell's case, and from the decision of Mandie J in Iacuone's case, to which I have referred above, that the test of "direct causation" for the purposes of s.3(1) of the Act is at least as rigorous as the test at common law, if not more so. In the present case, based on the "but for" test, a number of antecedent factors may have played a causative role in the happening of the respondent's injury. In such a case it would be erroneous to apply the "but for" test as the sole determinant whether the incident which caused injury to the respondent was directly caused by the driving of the vehicle. Thus, if the Tribunal did apply the "but for" test as the exclusive test of direct cause, it would have erred in doing so.

However, I do not consider that the Tribunal did solely apply the "but for" test in determining that the driving of the vehicle by the respondent directly caused the incident. At the commencement of para 25, the Tribunal stated that the incident would not have occurred "but for" five circumstances, namely: 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. It then stated that the first four of those events were part of the driving and were the "predominant cause of the incident". The member held that even if the last circumstance (the turning of the key in the ignition) is not to be regarded as part of the driving of the vehicle, the first four matters "played a direct role in the causation of the injury". In other words the Tribunal focussed on the five circumstances which preceded the happening of the accident, and found that the accident would not have happened "but for" those circumstances. The Tribunal then considered four of those circumstances collectively. In doing so the Tribunal no longer confined itself to the "but for" test. Rather, the Tribunal considered the four circumstances, and held that, taken together, they combined to play a direct role in the causation of the injury. On that analysis of the Tribunal's reasoning, I do not consider that the Tribunal confined itself to the "but for" test, but only used it as a starting point to determine the possible candidates for circumstances which might have played a causative role in the happening of the incident. I therefore do not accept that the Tribunal incorrectly applied the "but for" test. Accordingly, I do not accept the first submission made by the appellant that the Tribunal erred by applying the wrong test to determine whether the driving of the vehicle by the respondent "directly caused" the incident in which he was injured.

Did the Tribunal apply the test of causation correctly?

The second principal submission on behalf of the appellant was that the Tribunal did not apply the test of causation correctly. In particular it was submitted that the Tribunal confused the concept of "use" of a vehicle with the concept of "driving" a vehicle. It was submitted that the factors considered by the Tribunal included those contained in its findings recorded in paragraph 10(d), namely, that the respondent had left the vehicle in gear and had failed to properly apply the hand brake. The appellant submitted that, because the Tribunal had not determined when the gear had been engaged, and when there had been a failure to apply the hand brake, neither of those factors could be considered to be features of driving. If those two features are disregarded then, it was submitted, the Tribunal should have found that the respondent's injuries did not result from an incident which was directly caused by the driving of the vehicle.

The respondent made two responses to that submission, namely:

(a) That the appellant should not be permitted to make the submission because it had not contended, before the Tribunal, that the two features to which I have referred (the failure to apply the hand brake properly and the fact that the gear had been left engaged) were features of the use, rather than of the driving, of the vehicle.

(b) In any event, on the facts as found by it the Tribunal did not err in finding that the incident was directly caused by the driving of the vehicle.

In order to properly consider the first submission of the respondent, which I have outlined above, it is necessary to examine the proceedings before the Tribunal in a little detail. The only witness called before the Tribunal was Mr Billett. In his evidence-in-chief Mr Billett confirmed a preliminary statement by him, and also a later statement made by him dated 7 April 2003. In his preliminary statement[7] Mr Billett had stated that he presumed, by the way that the wheels of the truck spun in the gravel when he turned the ignition on again, that he had not put the hand brake on properly when he parked the truck in the yard outside the shed. A section of Mr Billett's second statement was recited in the reasons of the Tribunal. There Mr Billett stated that he must have had the truck in neutral while the engine was running and he was carrying out the repairs to it, and that he must have pushed the gear lever up when he reached into the truck to turn the engine off by pulling a small lever in the middle of the truck below the seat. He also stated that he could not say if he had the hand brake on when he stopped the vehicle. From the way the truck started and jammed him against the station wagon he could not say if it was on, or if it was not on very tightly. In his evidence-in-chief Mr Billett was only asked one question on that aspect of the case, namely, how did he consider that the truck had been left in gear. In response he stated that it must have been left in gear when he moved it down and switched it off after he had the truck running to charge the battery. The question of how and when the brake had either not been applied or not applied properly, and how and when the gear had been left engaged, were not the subject of any cross-examination by counsel who appeared on behalf of the Commission before the Tribunal (who was different to counsel who appeared on behalf of the Commission before me).

After the completion of evidence in the Tribunal, counsel for the Commission first addressed the Tribunal. Those submissions are summarised in paragraph 17 and following of the Tribunal's reasons for decision. Fundamentally the submission of counsel for the Commission was that, at the time of the incident, Mr Billett was not driving the vehicle. Thus, it was argued, the vehicle was last driven one hour or so before the incident when Mr Billett moved the vehicle approximately 20 metres to the position it occupied shortly before the incident. In those circumstances it was submitted that, as the vehicle was not being driven at the time of the incident, there was no direct causal link between the incident and the driving of the vehicle. I observe that at that point counsel did not make any submission relating to the relevance of the vehicle still being in gear, or to the relevance of the evidence that the brake had not been properly applied.

In response Mr Schulze, who appeared on behalf of the respondent for the Tribunal, contended that there were three distinct stages of driving in relation to the incident. The first stage was when the applicant drove the truck to where the accident ultimately occurred. Mr Schulze observed that as part of that stage Mr Billett failed to engage the hand brake properly and left the truck in gear. He referred to Jewell's case, to which I have referred above. He submitted that to leave the transmission in gear, and to fail to engage the hand brake properly or at all, "is part and parcel of the driving of the motor vehicle"[8]. Mr Schulze then contended that there were two further stages of the driving, which consisted of the applicant's placing his arm into the vehicle, and turning the ignition of the vehicle. It was submitted that at that time (that is, at the time of the incident) the applicant was also driving the vehicle. In response, counsel for the Transport Accident Commission did not make any submissions concerning the "first stage of driving" relied on by Mr Schulze, other than to contend that that driving was one hour earlier than the accident. It was contended that the subsequent time gap of one hour before the accident had the result that that driving did not directly cause the accident. Counsel for the Transport Accident Commission then contended that there was no driving at the time of the accident, since the applicant was simply standing next to the vehicle and turning the ignition on.

The Tribunal summarised the submissions to which I have referred above. The Tribunal accepted the submissions made on behalf of the Commission that at the time Mr Billett was injured he was not driving[9]. In other words, the Tribunal accepted the submissions of the Commission, and rejected the submissions made on behalf of Mr Billett, relating to the second and third stages of driving relied upon by counsel. Having reached that conclusion the Tribunal then stated "However, the question of whether he was injured as a result of a transport accident is more complex." The Tribunal referred to authorities, including Iacuone's case, to which I have referred above. The Tribunal then expressed its conclusions which are set out in paragraphs 25 and 26 of its reasons, and which I have quoted in paragraph 7. of these reasons for judgment.

The above examination of the proceedings before the Tribunal is in my view instructive, and assists in the determination of the competing contentions made by counsel before me. At the Tribunal, counsel for the Commission relied solely on the proposition that there had been a one hour time gap between the time of driving and the time of the incident, and that at the time of the incident Mr Billett was not driving the vehicle. Counsel for Mr Billett relied, as an alternative, on the proposition that the driving had been causative of the accident, even if Mr Billett was not driving at the time of the accident. He relied expressly on the failure of Billett to properly apply the hand brake, and the fact that the vehicle had been left in gear as part of the driving. The evidence was equivocal as to when those two factors had in fact occurred. That is, the evidence was unclear whether they had occurred when Mr Billett parked his vehicle in the position it occupied shortly before the accident, or alternatively, whether they took place when Mr Billett had completed the repairs to the vehicle. At no time did counsel for the Commission seek to contend that the resolution of that issue was relevant to the question whether the incident was directly caused by the driving of the vehicle. Rather, counsel relied on the fact of the time gap between the parking of the vehicle, and the incident. When he had the opportunity to respond to submissions made by Mr Schulze on behalf of Billett, which expressly referred to the leaving of the vehicle without the hand brake properly applied and with the gears engaged, counsel for the Commission did not contend that either of those factors were facets of use of the vehicle as distinct from facets of the driving of it. Put simply, that question was not an issue between the parties before the Tribunal.

In essence, the case made on behalf of the present appellant was that the act of driving the vehicle, 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. In that context, TAC did not gainsay the proposition that the antecedent act of driving included the failures to properly apply the hand brake and disengage the gears. The question is whether TAC should now be permitted to impugn the use made by the Tribunal of those facts as aspects of the driving of the vehicle.

Mr Beach is of course correct in contending that the Tribunal is not a court of pleading. However, it is clear from the proceedings before the Tribunal that the case made on behalf of Mr Billett contained within it the proposition that the failures to apply the hand brake and disengage the gear were aspects of the driving. The Commission did not gainsay that proposition. The area of contest before the Tribunal, rather, was whether the antecedent act of driving was a direct cause of the incident.

These proceedings, by way of appeal under s.148 of the Victorian Civil and Administrative Tribunal Act, are not proceedings by way of appeal in the wider sense, but are narrower, and have been characterised as being proceedings in the nature of a review; Roy Morgan Research Centre Pty Ltd v the Commissioner of State Revenue[10]; Bulasa Pty Ltd v Baytown Properties Pty Ltd and Rob Bassett-Smith[11]. It follows that the principles applicable to the question of whether an issue, not agitated before the court or tribunal appealed from, may be agitated on appeal, apply with at least the same rigour, if not more, to an appeal under s.148. In my view, proper application of those principles would preclude TAC from now seeking to make the contention which, clearly, was open to be made before the Tribunal, but was not. I consider that it would offend well-established principles if the appellant were permitted to gainsay a proposition, on the basis of which the Tribunal found in favour of the respondent, which it did not contest when the proceedings were heard before the Tribunal; see for example Whisprun Pty Ltd v Dixon[12]; Martin v Hendersons Industries Pty Ltd[13]; Cubillo v Commonwealth[14]; Elliott v ASIC[15].

In Whisprun, the plaintiff sued her employer for damages in the Supreme Court of New South Wales. She claimed that the defendant had breached its duty of care, causing her to contract Q fever, and that she now suffered from chronic fatigue syndrome as a consequence of that infection. At trial the defendant admitted negligence, and admitted that as a consequence of that negligence the plaintiff had contracted Q fever. The defendant denied that the plaintiff had suffered from chronic fatigue syndrome. The trial judge dismissed the plaintiff's claim for damages on the grounds that her credibility was such that he was not satisfied that she suffered from chronic fatigue syndrome. The Court of Appeal set aside that decision. It held that the trial judge had not satisfactorily considered the plaintiff's case. In particular, the Court of Appeal held that the trial judge had not considered the possibility that the unsatisfactory nature of the plaintiff's testimony, and its inconsistency with other evidence, was the product of symptoms of chronic fatigue syndrome. The High Court, by majority, allowed the appeal of the defendant. It held that the basis upon which the Court of Appeal set aside the trial judge's decision had not been agitated before the trial judge. In those circumstances, it would be unjust to permit the plaintiff to raise, on appeal, a point not taken at trial. Gleeson CJ, McHugh and Gummow JJ stated:

"It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action. Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs. As Water Board v Moustakas[16] makes clear, a point may be a new point even though it is within the pleadings or particulars. The pleadings and particulars are frequently decisive in determining whether a party is seeking to raise a new point on appeal. But they are not conclusive. To determine whether a party is raising a new point on appeal, it is `necessary to look at the actual conduct of the proceedings'."[17]

As I have stated, the point now sought to be made by the appellant was not part of its case before the Tribunal, either in cross-examination or in submission. If the matter had been exposed, as it ought to have been, before the Tribunal, during cross-examination, further evidence might have been adduced on behalf of the respondent, either in re-examination, or by calling other witnesses. If the matter had not been exposed until final submission, it would nevertheless have been the subject of competing contentions, particularly as to the appropriate inferences which might be drawn from the facts adduced in evidence. It is possible that the respondent might even have sought leave, upon agitation of the issue in submission, to have re-opened its case to call further evidence. Before me some submissions were "floated" as to what inferences might have been able to have been drawn on these issues. For example, it was submitted that the most probable inference was that the gear was not engaged until after Mr Billett had completed his repair work on the vehicle, otherwise the vehicle would have previously lurched forward when the ignition had been turned on during the repairs. It is not for me, on appeal, to determine those inferences. However, such an argument exposes the difficulty which now confronts the appellant. Inferences are drawn from facts which are established. As I have already remarked, if the matter had been properly agitated, it is a matter of conjecture as to whether further evidence would have been called, and as to what submissions would have been made.

Further, and in the context of the submissions made before it, the Tribunal did not resolve the issue. At paragraph 26 of its findings, the Tribunal did remark that it was "not clear from the evidence" whether the failure to engage the hand brake and disengage the gears had occurred when Mr Billett parked the vehicle, or when he later turned off the engine after he had charged the battery. It was not necessary for the Tribunal to make any determination of that factual issue. In other words, the Tribunal, by that remark, was not specifically holding that it had not been proven at what stage the two failures occurred; it was not necessary for the Tribunal to do so. Thus it would be wrong, at this point on an appeal, to elevate the Tribunal's remark that it was "not clear", to a finding that it had been "not proven". For those reasons, I consider that it would be unjust now to permit the appellant to raise, for the first time, the point that the failure of Mr Billett to engage the hand brake properly and to disengage the gear were features of the use of the vehicle, as distinct from features of the driving of it.

Accordingly, I accept the submission on behalf of the respondent that the appellant ought not to be permitted to contend, on appeal, that the Tribunal erred in treating the failure of the respondent to disengage the gears and to properly engage the hand brake as features of the driving of the vehicle. It was not contended before me that if those matters were features of driving of the vehicle, then the Tribunal erred in finding that the driving of the vehicle (including those features) approximately one hour before the incident was a direct cause of the incident. In any event I am satisfied that such a conclusion was reasonably open to the Tribunal as a matter of fact. As observed by Mandie J in Iacuone's case[18], such a finding of fact will be one on which reasonable minds might differ, but it is not for this Court to decide the question of fact for itself; it is sufficient if such a conclusion of fact was open to the Tribunal as a reasonable tribunal. In my view, it was so open. In other words 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.

In light of the conclusions to which I have just come, it is not necessary for me to express a conclusion whether it was open to the Tribunal to conclude that the incident was directly caused by the driving of the vehicle, if the sole features of driving were to be confined to the actual driving of the vehicle from the shed to the position in which it was parked. However, in deference to the quality of the submissions advanced on the appeal before me on behalf of the appellant and the respondent, it is appropriate that I do express such conclusions, albeit that I shall do so briefly.

The respondent contended that, even if the features of driving were so confined, nevertheless the Tribunal's decision should not be impugned. In particular, Mr Keogh relied on the evidence of Mr Billett that if the truck had not been parked on such an angle to the station wagon, he could have leapt out of the way and avoided being injured, when the truck lurched forward after he had re-started its ignition. Mr Keogh also relied on the case of Pedersen, which was one of three cases decided by the Full Court of Victoria in Transport Accident Commission v Treloar[19]. In that case Mr Pedersen suffered fatal injuries when he fell having alighted from a bus. The fall occurred because the bus had come to a stop at a place where the passengers had to alight in the dark onto rough and irregular bluestone guttering.

In my view, if it were necessary for me to so decide, I would conclude, on the facts of this case, that the mere fact of parking the truck at an angle to the station wagon would not be sufficient to constitute that act of driving as a direct cause of the incident. I agree with the submissions of Mr Beach that, based on that circumstance alone, the driving was not a direct cause of the incident. The direct cause of the incident was the truck suddenly lurching into motion when the ignition was started. That motion - resulting from the ignition being turned on while the hand brake was off and the gear engaged - had nothing to do with the angle on which the vehicle was to the station wagon. Certainly "but for" the physical relationship of the truck to the station wagon, the accident would not have occurred. However, that was not a direct cause of the accident in the sense discussed in the authorities. Further, I agree with Mr Beach that the case of Pederson in Treloar would be distinguished; there was a close temporal relationship between the driving and the accident in that case, which did not exist in the present case. In this context, the appellant's submissions would be fortified by the recent decision of the High Court in Insurance Commission of Western Australia v Container Handlers Pty Ltd[20] to which I was referred by the appellant.

Further, in light of the conclusions which I have reached, it is not necessary for me to consider the "alternative" case made on behalf of Mr Billett before the Tribunal. That claim was based on s.3(1A) of the Transport Accident Act which provided that for the purposes of the definition of "transport accident" in s.3(1) and the "incident" includes an incident -

"(a) involving a motor vehicle, a railway train or a tram which is out of control."

It was common ground between the appellant and the respondent that if I were to uphold the appeal, then the matter should be remitted to the Tribunal for tendering of further evidence, and the making of further submissions, in relation to s.3(1A). Such a course is not necessary because, based on the conclusions which I have expressed above, the appeal is to be dismissed.

For the reasons which I have set out above I therefore conclude that the appeal should be dismissed. I shall hear counsel on the question of costs.

[11] [2003] VSC 248 at paras 30, 31 and 34 (per Gillard J).

[13] [2004] VSCA 19 at para 22-26.

[15] [2004] VSCA 54 at para 97,98.

At a glance

Court

Decision date

Before

Source

Judgment (75 paragraphs)

Parties

Cases Cited (6)