1. Before commencing her consideration of ground 1 and after having carefully set out the submission of the parties, the judge noted that the applicant took no issue with the Tribunal's exposition of the law concerning the meaning of 'transport accident' and did not submit that it misconstrued the Act or misunderstood the relevant authorities.
2. Her Honour observed that the question whether, in the unique circumstances of the case, the incident was directly caused by the driving of Mr Van Der Wolf's vehicle was 'necessarily one of fact and degree', and the applicant could only succeed on ground 1 if it was not open to the Tribunal to conclude that the sounding of the alarm was not directly caused by the driving of a motor vehicle.[8]
3. The judge considered that the detailed intermediate findings about the operation of the interlock and the sequence of events leading up to the sounding of the alarm (parts of which are set out at [23], [26] and [27] above) allowed the Tribunal to engage in the 'fine-grained consideration of causation' in [77] of its reasons (set out at [28] above) and given those findings she did not consider that the evidence compelled the Tribunal to find that the sounding of the alarm was directly caused by the driving of the vehicle.
4. More particularly, her Honour found that the Tribunal was 'clearly conscious of the temporal connection between the driving of the vehicle and the sounding of the alarm' yet it was open to the Tribunal to find that the sounding of the alarm was not directly caused by the driving of the vehicle in circumstances where:

(a) the alarm sounded independently of the vehicle;

(b) the vehicle was stationary when the retest was requested, when Mr Van Der Wolf first attempted to retest, and when the alarm sounded; and

(c) the operation of the interlock and the sounding of the alarm did not interfere with Mr Van Der Wolf's driving of the vehicle.[9]

1. As to ground 2, the applicant contended that the Tribunal accepted that having the interlock fitted was a precondition to him driving the vehicle but found that this did not mean that the interlock was a feature of the driving - demonstrates that the Tribunal misapplied the definition of 'transport accident' to the facts of the case.[10]
2. The judge considered that the Tribunal properly addressed itself to the question of whether the sounding of the alarm was directly caused by the driving of the vehicle. Within this, her Honour noted that the Tribunal correctly identified the relevant statutory definitions and gave a clear and comprehensive summary of the relevant authorities (about which no complaint was made), and the Tribunal's reasons contain numerous references to the need for the sounding of the alarm to have been directly caused by the driving of the vehicle, including in the final sentence of [76].[11]
3. Further, the judge did not accept Mr Van Der Wolf's contention about the factual basis for the Tribunal's finding that the alarm did not interfere with his driving - insofar as he referred to the findings at [63] that the sounding of the alarm was stressful to him and caused the vehicle's hazard lights to flash and contended these must have interfered with his ability to drive the vehicle - and noted that the Tribunal's findings of fact on this point were not challenged on the appeal. These findings involved an implicit rejection of Mr Van Der Wolf's submission that the sounding of the alarm must have interfered with his driving of the vehicle.[12]
4. Accordingly, her Honour found that it was open on the evidence for the Tribunal to make such findings.[13]
5. It is not necessary to set out the judge's reasons as to the adequacy of the Tribunal's reasons (ground 3 before the judge) which was not pursued on this appeal. We should add, however, that we agree entirely with Her Honour's conclusion that the reasons of the Tribunal provided 'an intelligible explanation of the process of reasoning that has led the tribunal from the evidence to the findings and from the findings to the ultimate conclusion'[14] and that the reasons are 'admirably clear'.[15]

1. Section 148 of the VCAT Act provides that appeals against decisions at VCAT shall only be brought on 'a question of law'. The meaning of this phrase and its relationship to the fact finding exercise at the Tribunal has been considered on multiple occasions in other decisions of this Court (and its predecessors).[16]
2. We would adopt and apply what was said by Niall JA, in Marsh v Transport Accident Commission:

In Vetter v Lake Macquarie City Council, a majority of the High Court noted that 'whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law'. That formulation leaves open the possibility that the application of the facts to a statutory phrase may involve a mixed question of fact and law and not involve a question of law within the scope of s 148 of the VCAT Act. That will be so where the question of whether the facts found fall with the statutory phrase is not susceptible to only one correct answer. Within that area of choice, the decision of the repository of the power will generally be one of fact.

As explained by Hill J in Sharp Corporation of Australia Pty Ltd v Collector of Customs:

• ... where the facts found are capable of falling within or without the description used in the statute, the decision which side of the line they fall on will be a decision of fact and not law. Such a decision will generally involve weight being given to one or other element of the facts and so involve matters of degree.

On the other hand, where, on the facts, only one answer is open, in other words, the facts are necessarily within or outside the statutory bounds, then there is exclusively a question of law. As explained by the High Court in Vetter, by reference to Mason J's judgment in Hope v Bathurst City Council ('Hope'):

• ... when it is necessary to engage in a process of construction of the meaning of a word (or phrase) in a statute a question of law will be involved, but that the question may be a mixed one of fact and law. His Honour's reasons make it clear that a question exclusively of law arises, as the respondent sought to argue was the position in this case, if, on the facts found only one conclusion is open.

To put it another way, 'whilst the question of whether a given set of facts could fall within such a standard is a question of law the question of whether a particular set of facts does do so is a question of fact'.[17]

1. Consistent with Niall JA's statement, and the earlier decisions of this Court, it was accepted by counsel for Mr Van Der Wolf that for the application to succeed it was necessary for him to establish that it was not open to the Tribunal to conclude that the incident involving the sounding of the alarm was not a transport accident.
2. In this case, the statutory language was clear: the Tribunal was required to address an issue of fact, namely, whether the sounding of the alarm was directly caused by the driving of the vehicle.
3. Counsel for Mr Van Der Wolf contended that it was. Counsel argued that the only conclusion available to the Tribunal given the findings of fact set out at [23], [26] and [27] above, was that the necessary direct causation required by the Act had been established by his client.
4. Counsel submitted that everything associated with the sounding of the alarm was connected to the driving. The alarm was an integral part of the interlock, and it was necessary to engage the interlock to drive the van. The interlock had been engaged, and Mr Van Der Wolf was able to drive the van to the point where he was required to undergo a retest.
5. It was argued that but for the driving, the incident would not have occurred as Mr Van Der Wolf's driving gave rise to the requirement to retest. His performance of the retest was itself an activity intimately connected with the driving of the van in the same way as is the sounding of the horn. The purpose and effect of the device, by its design, was to interfere with the driver's control and management of the vehicle, unless and until the tests required by the interlock were complied with.
6. It was then said that the purpose of the interlock had the effect of interfering with Mr Van Der Wolf's driving: he had to pull over until he successfully completed the retest and was able to return to driving without the hazard lights flashing and alarm sounding. Failing to complete the retest in the time required was an outcome resulting from the ineffectiveness of the applicant's 'driving' the vehicle as constituted by the actions he undertook in responding to the retest. The sounding of the alarm was only occasioned because Mr Van Der Wolf had been driving and wished to continue to drive. This, so the argument ran, meant that the driving of the van was so connected with the sounding of the alarm that the only conclusion open was that it was directly caused by the driving of the van.
7. Counsel argued that this analysis placed the facts squarely within those the statements of principle discussed by the High Court in Container Handlers,[18] the Court of Appeal of Western Australia in Maitland Smith v Path Transit Pty Ltd,[19] and more recently, this Court in Foursquare.[20]
8. Counsel for TAC also relied upon the principles set out in these authorities. Within this, counsel noted that the Tribunal was required to determine if the 'driving' of the vehicle was a 'direct cause' of the sounding of the alarm, consistent with the approach enunciated by McHugh J in Container Handlers. The Tribunal was not bound to find the causa causans (original cause) or the causa causata (secondary or intermediate cause), as was suggested was necessary by Mr Van Der Wolf in the event of finding that the driving was not the direct cause of the incident.[21]
9. Counsel for TAC then argued that the operation of the alarm was unconnected to the actual driving of the vehicle. The alarm sounded, not because of the driving, but rather because of the failure of Mr Van Der Wolf to carry out the test appropriately. Whilst dependent upon the vehicle's engine having been started, the alarm would have sounded whether the van was in motion or stationary. Mr Van Der Wolf did not need to be in the van for the alarm to sound, as long as the engine was running. In summary, TAC argued that whilst the operation of the device had a clear connection with the use of the van (as the Tribunal found) - provided it was installed in the vehicle and operated in conjunction with a started engine - unlike the applicant's example of a horn, it was otherwise divorced from any function or feature of the 'driving' of the vehicle. Accordingly, the sounding of the alarm was not directly caused by the driving of the van, but rather, as the Tribunal found, the applicant's failure to complete a retest.
10. The submissions of Mr Van Der Wolf are unpersuasive.
11. In Foursquare, this Court addressed in some detail the decision of the High Court in Container Handlers and the Western Australian decision of Maitland Smith.[22]
12. In Container Handlers, McHugh J said:

Whichever limb of the indemnity is invoked, however, the legislative history and purpose of the Act demonstrate that there must be a causal link between the death or injury and some feature of the driving of the vehicle. It is not enough that the death or injury is the result of the use of the vehicle. The death or injury must be a consequence of the driving of the vehicle. The definite article 'the' in front of 'driving' emphasises the need to find a causal connection between the death or injury and some feature of the driving of the vehicle. It is at this stage that the case for Container Handlers fails.

...

The mere fact that Mr Sutton's injury would not have occurred if the vehicle had not been driven from Port Hedland to Camp Tracey and then to Nifty or from Nifty to Port Hedland does not mean that, for the purpose of the Act, the injury to Mr Sutton was a consequence of the driving of the vehicle. The use of the vehicle to transport a heavy crane and a mine transport truck on bad roads was a necessary pre-condition for the sustaining of the injury. However, the injury was not a consequence of any feature of the driving of the prime mover and its attached load. The injury was not a result or effect of some feature of the driving of the vehicle. Taylor J's remarks in Butler, although phrased in terms of 'cause' and 'effect' rather than 'consequence', are instructive in this context:

• [T]he cause of an event is not established in the legal sense by showing, without more, that in the absence of a proved set of circumstances the event would or may not have happened, or, that a proved set of circumstances, in the widest sense, contributed to the happening of the event.

Once it is understood that using the vehicle is not equivalent to the driving of it, it is impossible to hold that the injury to Mr Sutton was a consequence of the driving of the prime mover and low loader. His injury was not a consequence of any feature of the driving of the vehicle.[23]

1. In Maitland Smith, Martin CJ (with whom Le Miere AJA agreed), after analysing in detail the various judgments in Container Handlers, noted:

Three members of the court (McHugh, Callinan and Heydon JJ) were of the view that 'driving' was limited to the actual operation and control of the direction and speed of the vehicle.[24]

The majority position in Container Handlers is that the injury must be directly caused by the driving of the motor vehicle and the driving means the operation of the vehicle under the control and management of the driver.[25]

1. Then recently in Foursquare, this Court said:

The cases show that 'the driving' of a vehicle is the propulsion and movement of the vehicle, including its movement to a stop, by the control and management of those functions. An incident which happens after the driving is completed may be directly caused by the driving, within the meaning of the definition, if the incident is immediate in terms of space and time to the driving, but even then the question is one of fact in every case.

By way of illustration, a driver might be injured immediately after parking their car in a home garage, by a garage door which malfunctions while closing. The driving has ceased with the parking of the vehicle. The injury follows closely upon the driving, the closing of the door is related to the driving, and the injury might be sustained close to the vehicle, but neither the closing of the door nor the injury could be said to have been caused by the driving.[26]

1. This analysis leads unerringly to the conclusion that to satisfy the test under the Act the incident which produces the injury must have a direct connection with the movement or propulsion of the vehicle - and thus be a feature of its driving. It is not enough to be a sine qua non, as Moore J recognised in Zengin v Insurance Commission of Western Australia[27] consistent with McHugh J's analysis in Containers Handlers. Nor is it enough for the incident to have an intimate connection with the immediate use of the vehicle.
2. For the following reasons, we are satisfied that not only was it open to the Tribunal to reach the conclusion it did, but that it was the proper conclusion.
3. First, as just mentioned, an intimate connection between the driving of the motor vehicle and the incident which produces the injury is, on its own, insufficient to satisfy the statutory test. In Foursquare, the Court set out the statutory history of the definition of 'transport accident'. What is clear is that the legislature has progressively tightened the definition of transport accident within the Act so that incidents which previously would have satisfied the statutory test at that time no longer do so.
4. This is just such a situation. Undoubtedly, Mr Van Der Wolf's injury would have been held to have occurred as a result of an incident 'arising out of the use of the motor vehicle'. It would also have satisfied the definition of an incident 'arising out of the driving of the motor vehicle'. In both instances, this is so because of the close association between the operation of the interlock and Mr Van der Wolf's use or driving of the van.
5. But the current statutory definition, as we have seen, requires a direct causal link between a feature of the driving (in the sense of movement or propulsion of the vehicle) and the incident which produces the injury. This is a very different kettle of fish to the earlier iterations of the definition of a transport accident.
6. Second, whilst the alarm sounded as part of the interlock, this had no relationship to the propulsion or movement of the van. It was a function of the interlock that was inevitable regardless of the movement or propulsion of the van. It was unrelated to Mr Van Der Wolf's control of the vehicle or its movement at the time the alarm sounded.
7. Third, as counsel for Mr Van Der Wolf argued, it is undoubtedly the case that the driving of the vehicle played an integral part in the operation of the interlock. The van would not have started without the interlock being activated which permitted it to be driven to the point where the incident occurred. Mr Van Der Wolf was in the driver's seat and intended to continue driving once he had completed the test. All this, as counsel for Mr Van Der Wolf argued, was directly related to the driving of the van, but that is not enough. Establishing that the driving of the van was a precondition to the sounding of the alarm avoids the true question - was the sounding of the alarm directly caused by the driving of the vehicle in the sense of the vehicle's movement or propulsion?
8. In Container Handlers, the prime mover with low loader trailer attached had been halted during the course of its journey and was jacked up on the roadside when the jack slipped, pinning the hand of a passenger who had been assisting the driver to repair the vehicle, injuring him severely. In Foursquare, the driver had driven his truck to a halt, alighted from the truck (with the engine running) and walked a short distance to inspect the drop-off point for the industrial waste bins he was transporting, when he tripped and fell on a piece of reinforced steel mesh lying on the ground in the vicinity of the truck. However, as the result in both those cases demonstrates, a sine qua non connection does not satisfy the statutory test.
9. Here, the alarm sounded independently of Mr Van de Wolf's driving or control of the van. The fact that use of the interlock was intimately associated with the driving of the van as argued by Mr Van der Wolf has no bearing on whether the driving of the vehicle was a direct cause of the sounding of the alarm. The alarm was pre-set to the interlock and was geared to sound whether the vehicle was in motion or stationary. As it turned out, the vehicle was stationary. Moreover, the alarm would sound whether the driver was within or outside the vehicle. No feature of the driving, or of its motion or propulsion, occurred to produce the sound given off by the alarm. In the result, that is the answer to Mr Van Der Wolf's argument.
10. Fourth, the statutory test is not exclusionary (i.e. excluding other potential causes) - rather a positive connection must be established between the driving and the incident. This is not a case in which the question of multiple causes arises, as suggested by Mr Van Der Wolf. As TAC argued, the cause of the alarm sounding was Mr Van Der Wolf's failure to satisfactorily retest within the prescribed time limit - which was unconnected to the driving of the vehicle.
11. Fifth, it is unnecessary to delve into the facts of any other cases. As was pointed out in Foursquare and in Container Handlers, the question of whether the incident is directly caused by the driving of a motor vehicle will usually turn on the facts as properly found by the trier of fact. As this case amply demonstrates, the factual circumstances can vary wildly and will necessarily determine the answer.
12. In our view, it was well open to the Tribunal to find that this incident (and Mr Van Der Wolf's consequential injury) did not result from a transport accident. Indeed, we would have reached the same conclusion. The judge was correct to dismiss the appeal.

1. The applicant has not established that there was an error of law in the decision of the Tribunal, as required by s 148 of the VCAT Act, and therefore the application for leave to appeal from the decision of the judge must be refused.

[1] Van Der Wolf v Transport Accident Commission (Review and Regulation) [2023] VCAT 51 ('VCAT Reasons').

[2] Van Der Wolf v Transport Accident Commission [2024] VSC 296 (Richards J) ('Reasons').

[4] (2004) 218 CLR 89; [2004] HCA 24 ('Container Handlers').

[5] (2022) 68 VR 415; [2022] VSCA 237 ('Foursquare').

[6] VCAT Reasons, [63], [64], [67] (footnotes omitted).

[7] VCAT Reasons, [76]-[78] (emphases in original) (citations omitted).

[14] Reasons, [54] citing Dimatos v Coombe [2011] VSC 619, [20]; see also Turner [2009] VSC 66, [239]-[240].

[16] S v Crimes Compensation Tribunal [1998] 1 VR 83; Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; (2007) 18 VR 48, ISPT Pty Ltd v Melbourne City Council (2008) 20 VR 447; [2008] VSCA 180; Devaney v Crown Melbourne Ltd [2021] VSCA 168; Brighton Foreshore Association Inc v Bayside City Council [2021] VSCA 284.

[17] (2020) 92 MVR 201, 206 [23]-[26] (citations omitted); [2020] VSC 228.

[18] (2004) 218 CLR 89; [2004] HCA 24.

[19] (2009) 52 MVR 185; [2009] WASCA 46 ('Maitland Smith').

[20] (2022) 68 VR 415; [2022] VSCA 237.

[21] In respect of which Mr Van Der Wolf cited National Insurance Co of New Zealand v Espagne [1961] HCA 15; (1961) 105 CLR 569, 592 (Windeyer J).

[22] (2009) 52 MVR 185; [2009] WASCA 46.

[23] Container Handlers (2004) 218 CLR 89, 113-4 [64], [66] (emphasis added); [2004] HCA 24.

[24] Maitland Smith [2009] WASCA 46; (2009) 52 MVR 185, 193 [39]; [2009] WASCA 46.

[26] Foursquare [2022] VSCA 237; (2022) 68 VR 415, 430 [69]-[70] (McLeish and T Forrest JJA, J Forrest AJA); [2022] VSCA 237.

[27] [2020] VSC 237, [62].