Transport Accident Commission v Iacuone [1998] VSC 192

"Whether, on the facts as found by the Tribunal, it can properly be decided that the respondent's injuries: (a) were as a result of a transport accident for the purposes of s. 35 of the Transport Accident Act 1986 ("the Act"); (b) were directly caused by the driving of a motor vehicle as required by s. 3 and s. 3(3)(c) of the Act."

6. The respondent (applicant) was injured on 31 December 1995 in events which occurred in Victoria. The respondent claimed entitlement to compensation pursuant to s. 35(1) of the Act claiming that he was injured "as a result of a transport accident" within the meaning of the Act. The appellant rejected that claim (see s.70) and the Tribunal, upon review (see s.77), set aside that rejection in the decision now appealed from and remitted the respondent's claim to the appellant to be decided according to law.

10. A motor vehicle collided with and came to rest against a tree across the street from the respondent's home at 18 Justin Drive, Noble Park, which is at the corner of Timberglade Road, between 6.30 pm and 7.00 pm on 31 December 1995. [It was common ground that the collision with the tree was caused by the driving of the motor vehicle.]

13. The Tribunal found that at the time of the collision, the applicant was in his home eating his evening meal, when he heard the crash of a motor vehicle. The respondent was barefooted and remained so throughout the ensuing events. He went to his front door and observed a Holden Torana motor car ("the Torana") which had crashed into a tree across the road. There was a male driver and a female passenger. The respondent went inside and telephoned emergency services. He then went outside to render assistance to the occupants of the Torana but the occupants had by then disappeared. A neighbour informed him that the occupants had been taken to hospital in another motor vehicle. The respondent continued to converse with the neighbour for about five to 10 minutes.

16. The respondent then commenced to walk back into his home (at about 7.10 pm) when a police car arrived. The police car stopped alongside the Torana, but in the opposite direction to which the Torana was facing.

19. The respondent walked over to the police car and had a conversation with one Constable Ritchie who was seated in the front passenger seat of the police car. The respondent informed the constable what he knew of the circumstances of the accident in performance of his "moral duty to assist the police" in the investigation of the accident. There was shattered windscreen glass both on the bonnet of the Torana and in the area surrounding the Torana, which was the area in which the respondent was standing while he was talking to the constable. The glass had fallen there as a result of the accident.

22. After his conversation with Constable Ritchie the respondent re-entered his home, went into the kitchen and then noticed for the first time that his left foot was bleeding. He called his wife. He saw that there was a piece of glass embedded in the ball of his foot. The respondent's wife then drove him to hospital, where the glass was removed by a doctor. The glass piece was a shattered type of glass approximately the size of a $2 coin, which the Tribunal found had come from the windscreen of the Torana and had been "picked up" in his foot whilst the respondent was talking to the constable.

25. At the time of the accident, the respondent had been a diabetic for a number of years, which resulted in his having little or no sensation in the extremities of his body, including his foot. After the removal of the glass his foot became infected. He was re-admitted to hospital on several occasions, and eventually his toes were amputated but his left foot still became gangrenous and his leg was eventually amputated.

29. The Tribunal's reasons were expressed as follows:

"WAS THE INJURY DIRECTLY CAUSED BY THE DRIVING OF THE TORANA MOTOR VEHICLE? It should be noted, that the original Transport Accident Act defined a transport accident to be, `caused by or arising out of the use of a motor vehicle'. This definition was restricted in May 1988 by the insertion of the words, `directly caused or by directly arising out of the driving of a motor vehicle'. In January 1995, the Act was further restricted by deletion of the word `arising' and `use of' so that it is now necessary for the applicant to show that the incident occurred `directly caused by the driving of a motor car or motor vehicle.' Both the applicant and the respondent referred me to a number of authorities as to the meaning of the definition of `transport accident' as used in the Act. I was particularly indebted to Mr Stanley for his reference to the case of State Government Insurance Commission v Sinfein Pty Ltd (1996) 15 WAR 434 (Full Court of the Supreme Court of Western Australia) where Ipp J at pp.452-454 sets out in detail the proper considerations to be applied in a case such as this: [quoted extract omitted] Mr Stanley submitted, that in this particular instance, there were too many intervening factors between the collision of the Torana and the applicant becoming injured. He submitted that these intervening factors were, the applicant observing the crash scene, the applicant telephoning the emergency services, the applicant speaking with his neighbour, the applicant observing the police car arriving and walking over to talk to the police and then the applicant being injured by glass on the road. Mr Stanley suggested that there were too many events involved between the accident and the applicant becoming injured and those events in fact broke the chain of causation. In any event, Mr Stanley stated that the events certainly meant that the applicant's injury did not arise directly from the driving of the motor vehicle as required by the Act. In my view, none of the events referred to by Mr Stanley broke the chain of causation between the driving of the motor vehicle and the applicant's injury. The applicant's injury arose directly from the driving of the motor vehicle because it was the driving of the motor vehicle that caused the windscreen of the Torana to break and the glass from the windscreen to fall on the road. As part of the driving and directly as a result thereof, the applicant assisted the police in their enquiries and was there injured by picking up the glass in his bare foot. Thus I find, that the applicant has demonstrated first, `a temporal or other connection between the incident and the driving sufficient to prove the driving directly caused the incident' see Transport Accident Commission v Jewell [1995] VicRp 22; (1995) 1 VR 300 at 307. Secondly, the driving of the motor vehicle was the predominant causal contribution and operative cause of the applicant's injury: see SGIC v Sinfein Pty Ltd at 453 (supra). Thirdly, in my view, a reasonable person applying commonsense would regard the driving of the motor vehicle as the cause of the applicant's injury. And finally, applying a `but for test', it is clear that if it was not for the driving of the motor vehicle, the applicant would not have been injured. CONCLUSION Thus, in conclusion I find that the applicant's injuries were directly caused by the driving of the Torana motor vehicle and as a result, resulted from a transport accident within the meaning of the Act."

34. Mr Uren QC, who appeared with Mr R. Middleton of counsel for the appellant, said that there was a double-barrelled requirement under s. 3 of the Act: both the incident and the injury must be directly caused by the driving of the motor vehicle. It is not sufficient if the incident is directly caused by the driving, the injury must also be directly caused by the driving (s. 3(3)(c)). Mr Uren submitted that "the incident" was the car hitting the tree and not the respondent treading on the glass but, as I understood it, what he really meant by saying that was that the last relevant incident which could be said to have been directly caused by the driving of the car was its collision with the tree and that the incident wherein the respondent trod on the glass was not an incident directly caused by the driving of the car.

37. Mr Uren at first also submitted that the injury was the amputation but I think that he accepted in the end that the way the case was fought before the Tribunal was that the injury was the piercing of the respondent's foot by the glass and that there was no factual investigation or contest concerning the various steps between that initial injury and its sequelae. The intervening factors which were agitated before the Tribunal as showing that the injury was not directly caused by the driving of the motor vehicle were the actions of the respondent in the telephoning of the emergency services, the conversation with the neighbour, the observing of the police car and the walking over to talk to the police with bare feet.

40. Mr Uren submitted that there were two questions of law:

(1) whether the Tribunal correctly interpreted the statute;

(2) whether it was open to the Tribunal to conclude that the glass in the foot was directly caused by the driving of the motor vehicle.

45. Mr Uren submitted that "directly" added something - more was required than a simple proximate or direct relationship and that this led to one of three possibilities:

(i) The injury must be sustained in the same incident which the driving causes - in this case the collision with the tree; or

(ii) both the incident and the injury must occur without any "intermediaries" or intervention between them and the driving; or

(iii) the causal relationship between the driving on the one hand and the incident and the injury on the other must be "more than proximate".

51. Mr Uren submitted that, if the third possibility was correct, and assuming contrary to his contention that the driving was a direct and proximate cause of the incident and injury, the causal relationship between driving and the treading on the glass and piercing of the foot by the glass was not sufficiently proximate to satisfy the requirement of "directly caused by". The driving was not proximate or effectively dominant as a cause when the injury would not have happened if the respondent had not stepped on the glass with his bare feet. In effect, the line had to be drawn and the facts of this case were well on the other side of that line.

54. Mr Uren criticised each of the criteria applied by the Tribunal in determining whether the incident and injury was directly caused by the driving and submitted that the Tribunal had committed errors of law.

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

(a) the respondent's injuries were caused by glass whose presence on the roadway was directly caused by the driving of the motor vehicle;

(b) the glass came from the windscreen of the Torana when by its driving, it hit a tree which resulted in the windscreen being shattered;

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

(d) the temporal difference between the driving and the injury was irrelevant; the case was no different in principle to a case where a car hit a tree which slowly broke and then caused injury;

(e) a relevant causal-breaking intervening event would have occurred, for example, if the glass from the car had been placed in a bin without proper protection, causing injury to the hands of a rubbish collector.

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

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

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

78. Section 3(1) of the Act provides so far as material that "transport accident means an incident directly caused by the driving of a motor car or motor vehicle... ". Section 3(3)(c) of the Act provides, so far as material, 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.

81. It is fair to say, as the Tribunal recognised, that Parliament has by two amendments successively restricted the scope of the definition of "transport accident".

84. In the 1986 Act, "transport accident" was defined to mean "an incident caused by, or arising out of, the use of a motor car..." and s. 3(3)(c) provided that "a reference to an injury... in or as a result of or resulting from a transport accident or arising out of the use of a motor car... is a reference to an injury... caused by or arising out of a transport accident or the use of a motor car or to a person who sustains injuries that were... caused by or arose out of a transport accident or the use of a motor car".

87. The words "or motor vehicle" were later inserted after "motor car" in the definition of transport accident and elsewhere the words "motor vehicle" were substituted for "motor car". The Transport Accident (Amendment) Act 1988 did not amend s. 3(3)(c) but did amend the definition of "transport accident" as follows:

"in the definition of `Transport accident' - (i) for `caused by, or arising' substitute `directly caused by, or directly arising'; and (ii) for `use' substitute `driving'."

91. The Transport Accident (General Amendment) Act 1994 amended both the definition of "transport accident" and s. 3(3) as follows:

"(1) In section 3(1) of the Principal Act, in the definition of `transport accident; omit `,or directly arising out of,'.

(2) After section 3(1) of the Principal Act insert -

`(1A) For the purposes of the definition of "transport accident" in section 3(1) an incident includes an incident -

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

(b) involving a collision between a pedal cycle and an open or opening door of a motor vehicle.'

(3) In section 3(3) of the Principal Act -

(4) For section 3(3)(c) of the Principal Act substitute -

`(c) a reference to an injury or death in or as a result of or [a] 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, a railway train or a tram or to a person who sustains injuries that were, or whose death was, directly caused by the driving of a motor vehicle, a railway train or a tram."

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

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

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

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

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

* whether an injury (or incident) was one "directly caused by the driving of a motor car" is a question of fact;

* the words "caused by" (even in the changed context) connote a "direct" or "proximate" relationship of cause and effect;

* the words "directly caused by" do not mean "solely caused by";

* it is futile to strive to enunciate a general proposition the application of which will provide a ready solution in any case raising the question whether an injury (or incident) was directly caused by the driving of a motor car;

* an injury might be held to have been "directly caused by" the driving of a motor vehicle even though it was not produced by any collision or other physical contact between the person injured and the vehicle and, accordingly, an injury need not occur in the course of the driving of a motor vehicle in order that it may be said to have been directly caused by the driving;

* a claimant injured in an incident occurring after the driving of a motor vehicle must demonstrate a temporal or other connection between the injury and the incident on the one hand, and the driving on the other, sufficient to prove that the driving directly caused the injury and the incident.

126. What is the effect, if any, of the word "directly" in the expression "directly caused by"?

129. Courts have long taken the view that the words "arising out of" require a "less proximate" or "less immediate" causal relationship than the words "caused by" (see Government Insurance Office of New South Wales v R.J. Green and Lloyd Pty Ltd [1966] HCA 6; (1966) 114 CLR 437, 443 (per Barwick CJ), 445 (per Menzies J), 447 (per Windeyer J); Lamont v Motor Accidents Board [1983] VicRp 9; [1983] 1 VR 88, 96; State Government Insurance Office v Stevens Bros Pty Ltd [1984] HCA 32; (1984) 154 CLR 552, 555; Dickinson v The Motor Vehicle Insurance Trust [1987] HCA 49; (1987) 163 CLR 500, 505; Transport Accident Commission v Hoffman [1989] VicRp 18; [1989] VR 197, 201-2).

132. Just as the words "arising out of" connote a causal relationship less proximate or immediate than the words "caused by", I think that the words "directly caused by" connote a causal relationship more proximate and immediate than the words "caused by". It seems to me that, quite independently of the valid point that the word "directly" must have been inserted by Parliament for a purpose, the expression "directly caused by" is not tautologous. I would respectfully agree with what was said by Brooking J in Treloar (at p.462 - see too Jewell, per Tadgell J at pp.306-7 and SGIC v. Sinfein Pty Ltd (1996) 15 WAR 434, 462). It is a question of degree, however, and in most cases, it may make little difference, given that "caused by " itself requires the identification of a direct or proximate cause.

135. With the qualification that, in this statutory context, the driving of the motor vehicle must directly cause the incident and injury but there may be other direct causes as well, the words of Lord Shaw in Leyland Shipping Co v. Norwich Union Fire Insurance Society [1918] AC 350, 369 remain apposite:

"To treat proxima causa as the cause which is nearest in time is out of the question. Causes are spoken of as if they were as distinct from one another as beads in a row or links in a chain, but - if this metaphysical topic has to be referred to - it is not wholly so. The chain of causation is a handy expression, but the figure is inadequate. Causation is not a chain, but a net. At each point influences, forces, events, precedent and simultaneous, meet; and the radiation from each point extends infinitely. At the point where these various influences meet it is for the judgment as upon a matter of fact to declare which of the causes thus joined at the point of effect was the proximate and which was the remote cause."

Did the Tribunal correctly interpret the statute?

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

Was it open to the Tribunal to find that the injury was

145. In my opinion it cannot be said that it was not open to a reasonable Tribunal, correctly applying the statutory provisions to its findings of primary fact, to reach the conclusion which it did on this ultimate question of fact. That question of fact may well be one upon which reasonable minds, properly instructed, might differ, but it is not for this Court to decide the question of fact for itself. It was well open to the Tribunal to find that the driving of the vehicle caused both the incident (the treading on the windscreen glass) and the injury, notwithstanding that the respondent's own actions were also an operative cause thereof. In my opinion, it was also open to the Tribunal to conclude that the degree of proximity or immediacy required to satisfy the test of "directly caused by" existed notwithstanding the time interval and the intervening acts to which reference has been made, for the reasons advanced by Mr Ruskin (which I adopt). It would be unwarranted for the court in its appellate jurisdiction on questions of law to interfere with the fact-finding functions vested in the Tribunal unless the fact or facts so found were clearly not open to it (See Powley v Crimes Compensation Tribunal (1996) 11 VAR 146, 154 per Phillips JA).

149. For the foregoing reasons, the appeal is dismissed with costs.