Transport Accident Commission v Lees [2002] VSC 397

5. On 26 November 2001 the Victorian Civil and Administrative Tribunal ("the Tribunal"), in the exercise of its statutory jurisdiction to review decisions of the Commission, reversed the Commission's decision and found that as Lees was, in fact, injured as a result of a transport accident he was entitled to compensation under the Act.

8. Pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 the Commission sought leave of a Master of this Court to appeal the determination of the Tribunal. Section 148 confers a right of appeal, by leave, on a question of law upon a party to a decision of the Tribunal. On 18 February 2002 Master Wheeler refused the Commission leave to appeal, holding that the questions raised by its application for leave to appeal were not questions of law but rather questions of fact.

11. The Commission now appeals to this Court against the decision of the Master pursuant to Rule 77.05 of the Rules of the Supreme Court. Accordingly, although the Court is presently technically concerned with an appeal from a Master refusing leave to appeal, by agreement of the parties the Court heard argument on the substantive merits of the Commission's appeal, thus enabling it to treat the appeal from the Master as the substantive appeal from the Tribunal and to decide it accordingly.

14. The question determined by the Tribunal, and hence the question said to give rise to a question of law in this case, is whether the accident which caused the defendant's injuries was a transport accident within the meaning of s 3(1) of the Transport Accident Act 1986.

17. Section 3(1) of the Act defines a "transport accident" as:

"... an incident directly caused by the driving of a motor car or motor vehicle ...".

A "motor vehicle" is defined by the same section as meaning a motor vehicle as defined by s 3(1) of the Road Safety Act 1986. That legislative enactment defines a motor vehicle as meaning:

"... a vehicle that is used or intended to be used on a highway and that is built to be propelled by a motor that forms part of the vehicle ..."

"An area that is open to or used by the public and is developed for, or has one of its main uses, for driving or riding of motor vehicles;..."

"(a) An area that divides a road; or (b) a footpath or nature strip adjacent to a road; or (c) an area that is open to the public and is designated for use by cyclists or animals; or (d) an area that is not a road and that is open to or used by the public for driving, riding or parking motor vehicles; or..."

29. The Tribunal's findings of fact included the following:-

* The motorcycle ridden by the applicant at the time of the accident was a 1998 Honda CR 250 in excellent condition with disc brakes, front and rear mudguards, suspension and knobbly tires. It had hand brakes. It did not have head, tail, brake or indicator lights although these could have been easily fitted. The motorcycle was not registered for road use but was the kind of motorcycle commonly used for motocross racing and for riding on motocross tracks.

* In the three weeks after purchasing the motorcycle the defendant rode it up and down Riverside Avenue, Werribee, from his home on local roads to Warringer Reserve in Powell Drive, Werribee, upon made and unmade roads and through paddocks to the Werribee Quarry, and upon made roads and unmade tracks in the Blackwood State Forest.

* The Laurie Emmins Reserve upon which the Werribee Motocross Track is situated is on Crown Land in Laverton. The Wyndham City Council is responsible as a committee of management for the area in which the track is situated. The land on which the reserve is located is zoned as Public Persons Open Space.

* The Werribee Motocross Club hired the facility from the council on an annual basis and controlled the track during club events up until it ceased operations in March or April 2000.

* Motorcycle riders riding all kinds of motorcycles (both registered and unregistered) had been accessing the track via an open gate or walkway for approximately 4 years prior to the defendant's accident.

* Prior to the defendant's accident there were no signs stipulating that entry to the track was prohibited to the public, apart from an old sign put up by the Werribee Motocross Club stating that there was no entry to the track other than by club members. Any person could enter and remain on the track without permission.

* The reserve in which the Werribee Motocross Track is located is open to the public and is used weekly by Scout groups and by softball and cricket clubs.

39. Although the Tribunal recorded no specific finding as to when the defendant purchased the motorcycle from which he fell, there was evidence before it, which appears to have been uncontested, that he purchased it about one month prior to the accident through the "Trading Post". A combination of this fact and the Tribunal's finding that the defendant rode the motorcycle, inter alia, on public roads in the three weeks after he bought it means that he was riding the motorcycle on public roads at least up until about a week before the accident.

42. The plaintiff contended in this Court that the question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law. It relied upon Collector of Customs v Pozzolanic Enterprises Pty Ltd.[2] It identified the error of law which it says the Tribunal made as being its application of the facts which it found to the applicable definition of "motor vehicle" which governs the question as to whether the accident which caused the defendant's injuries was a transport accident within the meaning of s 3(1) of the Transport Accident Act 1986.

45. The Tribunal found that the motorcycle which Lees was riding immediately prior to his suffering his injuries was a vehicle that "is used" on a highway. It reached this conclusion on two bases. Firstly, it held that as it was used on the Werribee Motocross Track it was used on a "road or road-related area" and thus on a highway. This reasoning relies upon the extended definition of "highway" contained in s 3(1) of the Road Safety Act 1986 which, as already noted, defines a "highway" as a "road or road-related area". One applicable definition of a "road-related area" is an area that is not a road and that is open to or used by the public for driving, riding or parking motor vehicles. Secondly it held that, in any event, the riding by the defendant of the motorcycle on public roads for the period of three weeks after he purchased it constituted sufficient evidence to find that it was "used" on a highway in the sense that it was used on a road within the relevant definition.

48. In determining whether Lees' injuries were caused by a "transport accident" within the meaning of that term as defined in s 3(1) of the Act the question to be asked by the Tribunal of itself is whether, on the evidence before it, the relevant motorcycle could properly be described at the time of the accident as either one which is "used on a highway" or one which is "intended to be used on a highway". It is clearly not necessary that it must have been being used on a highway at the time the accident occurred. It must merely answer one or other or both of the descriptions of a motor vehicle to which I have referred. The definition is descriptive of the motor vehicle, not of the occasion on which the applicant for compensation suffers injury.

51. In a slightly different context in Transport Accident Commission v Serbec.[3] Marks, J (with whom Gobbo, J agreed) considered the question of whether a vehicle described as a "dune buggy" was a vehicle which "is used or intended to be used" in a public place. His Honour said:

"If a vehicle has been put into use on a highway or in a public place, then I think that it is 'used' in those places within the meaning of the definition. It is difficult, I think, to give the words another meaning. The distinction between the above two expressions in the definition of recreation vehicle (scil. 'is used' and 'is intended to be used') is between how a vehicle is actually used and such of its characteristics as may lead an objective bystander to think what its use is or may be; in other words, what it is 'meant for'. It is another matter to decide what evidence will justify a conclusion of fact as to the use to which a particular vehicle is put." (Parenthesis added.)

55. His Honour rejected a submission that the question of whether a vehicle "is used" in a particular context requires the application of an objective test; namely a test as to the function or purpose of the vehicle. He considered that such an approach was not justified by the ordinary meaning of the words and that, moreover, such a meaning would make it difficult to distinguish such meaning from the alternative "or intended to be used"; words which in their natural meaning lend themselves to an objective test.

58. There was evidence before the Tribunal from which it could conclude that the relevant motorcycle was a motor vehicle which could be described on the day the defendant suffered his injuries as one which "is used on a highway". It could probably have reached that conclusion if the evidence had gone no further than that which related to the defendant's having ridden the motorcycle on public roads after he bought it and up until about a week before the accident. In fact, the Tribunal found that in riding the motorcycle on the day that he was injured the defendant was using it on a highway within the extended definition provided by s 3(1) of the Road Safety Act 1986. In making that finding the Tribunal impliedly answered two subsidiary questions derived from its construction of the applicable definitions of "road" and "road-related area" contained in s 3(1) of the Road Safety Act 1986. Those questions might be phrased in somewhat the following terms:-

* Was the Werribee Motocross Track at the time the defendant rode his motorcycle on it prior to and on the date of the accident a "road"; that is to say, was it an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles?

* Was the Werribee Motocross Track at the time the defendant rode his motorcycle on it prior to and on the date of the accident a "road-related area"; that is to say, was it an area that is not a road and that is open to or used by the public for driving, riding or parking motor vehicles?

63. The Tribunal answered each of these questions in the affirmative. On the findings of fact which it made, namely those to which I have referred above and a number of others to similar effect, it seems to me that any other answer to these subsidiary questions would not have been open on the evidence. I am fortified in this conclusion by the fact that none of the evidence presented to the Tribunal in this regard was contested. But, as I conclude hereunder, these findings are findings of fact, not law and accordingly are, in any event, unappellable.

66. In its initial submission to the Court the plaintiff contended that one of the ways in which the Tribunal committed an error of law in accepting the defendant's claim was in having regard to what it submitted was illegal activity by the defendant in riding his motorcycle on public roads when it was unregistered and unregistrable and in riding it at the Werribee Motocross Track in breach of a local law of the City of Wyndham. The defendant countered this argument by pointing out that if the definitions contained in the Road Safety Act 1986 with which the Tribunal was concerned in this case had incorporated into them a concept of lawfulness it would follow that an unregistered and unregistrable trail bike could be ridden on the highway with impunity in that it would be beyond the reach of the provisions of the Road Safety Act 1986. Confronted with this argument, counsel for the plaintiff, Mr C. Maxwell, QC properly conceded, in supplementary submissions to the Court, that his argument was, in the circumstances, untenable.

69. The distinction between what constitutes a question of law and what constitutes a question of fact is not always easy to draw. Counsel for the plaintiff helpfully reviewed the current authorities on the question and referred particularly to Collector of Customs v Agfa-Gevaert Ltd.[4] In putting the proposition that the question whether facts fully found fall within the provision of the statutory enactment properly construed is generally a question of law, Mr Maxwell referred to the fifth of five propositions identified by the Full Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd[5] as representing the criteria against which a determination might be made as to whether a particular question was one of law or one of fact. However, as the High Court pointed out in Agfa-Gevaert, that proposition is qualified by the further proposition that when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact.[6] Although in the case there being considered the High Court did not specifically adopt the fifth proposition from Pozzolanic and its qualification, it did not specifically disapprove of the statement to which I have referred. It is to be noted that in Agfa-Gevaert the High Court was concerned with a phrase which contained words having a technical or trade meaning whereas in the instant case, the statutes required to be construed by the Tribunal use words according to their ordinary meaning. No question of technical or trade meanings is involved. Accordingly, the question as to whether the facts of the case fall within the words of the statutory enactments in this case is one of fact, not law. Provided the Tribunal asks itself the correct questions which arise for decision upon a proper construction of the statutory enactment under consideration it will have committed no error of law. The answer to those questions must, of necessity, be questions of fact. It is difficult to see how a decision of the Tribunal correctly applying the definitions to which I have referred could ever give rise to a question of law. However that may be, its decision gave rise to no such question in this case.

72. Although the Tribunal in this case did not expressly pose questions of itself in the form which I have done in analysing its decision, that it impliedly asked itself those questions is clear from the conclusions which it reached. As those questions correctly express the matters of law arising from a proper construction of the statutory enactments being construed by the Tribunal, it committed no error of law in reaching the conclusions which it did. Further, as I have already stated, its conclusions of fact were virtually inevitable on the uncontested evidence before it. Even if it was open to the plaintiff to challenge the Tribunal's decision on questions of fact as well as law it would still be unsuccessful in this appeal.

75. The Master was correct in dismissing the plaintiff's application for leave to appeal against the decision of the Victorian Civil and Administrative Tribunal in this matter. Had leave to appeal been granted the plaintiff would have inevitably been unsuccessful on that appeal.

79. The plaintiff's appeal from the order of Master Wheeler of 18 February 2002 refusing it leave to appeal a decision of the Victorian Civil and Administrative Tribunal of 26 November 2001 is dismissed with costs to be taxed; such taxation taking into account that the hearing of the appeal from the refusal of Master Wheeler to grant leave to appeal was treated as the hearing of the appeal itself.

[1] The term "motocross" (sometimes spelt "motorcross") is defined by the Macquarie Dictionary (3rd Ed.) as being: "a short distance motorcycle race of at least two laps on a circuit presenting a variety of surfaces and terrain."

[2] (1993) 43 FCR 280 at 287. See also Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 395; Lamond v Motor Accidents Board [1983] VicRp 9; [1983] 1 VR 88 at 90-1; TAC v Ball [1999] 1 VR 64; and S_iciliano v Acme Knitters Pty Ltd_ [1994] VicRp 44; [1994] 1 VR 632 at 641.

[3] (1993) 6 VAR 151.

[4] [1996] HCA 36; (1996) 186 CLR 389.

[6] See also Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 8.