1. The decision of TAC of 11 February 2003 is set aside, and in lieu thereof it is determined that the Respondent is liable to pay as compensation to the Applicant the reasonable costs of medical, hospital and like services received by her in relation to the injury to her right lower leg received on 19 May 2002.

2. The Respondent is to pay the Applicant's costs to be taxed in default of agreement on County Court Scale "A", including a certificate for a circuit fee of $369.00 and a certificate for counsel to hear reserve judgment.

Mr A Keogh, instructed by Stringer Clark, Solicitors

1 This matter comes before me by way of an application by Kate Zimmer ("Zimmer") who seeks to review a decision of the Transport Accident Commission ("TAC"). The decision under review is contained in a letter from TAC to Zimmer's solicitors, such letter being dated 11 February 2003. The decision of TAC is that there is no medical evidence to confirm that Zimmer's right ankle fracture was sustained as a direct result of a transport accident on 11 September 1998, and accordingly it is unable to fund any medical treatment relating to that right ankle condition. Zimmer, being dissatisfied with that decision, issued an application out of this Tribunal on 13 May 2003.

2 Mr Keogh of counsel appeared on behalf of Zimmer. Mr Klemens of counsel appeared on behalf of the TAC. There is very little in dispute between the parties other than the interpretation of the Act and questions of law. There are only very limited factual issues in dispute. Zimmer was the only witness called. A substantial Tribunal book, jointly prepared by the parties, was tendered in its entirety, and parts of this were referred to and relied upon. Otherwise argument was confined to the interpretation of the Act, with each counsel referring to various reported decisions.

3 As the decision under review relates to funding medical treatment, s.60 of the Transport Accident Act 1986 ("the Act") received considerable attention, as did ss. 3 and 35.

4 Against that general background, I make the following findings of fact. As stated, many of these findings were either admitted or not seriously challenged.

5 Zimmer, who is aged 25 years, was engaged in a single vehicle transport accident on 11 September 1998 whilst travelling from Maryborough to Amherst. She suffered particularly serious injuries as a result. Without listing them all here, they include a severe head injury and fractures of the discs at C4, C5, and a fracture dislocation of C6, with a partial injury to the cervical spinal cord. The effects of these injuries include left-sided spasticity, interference with gait, muscle imbalance, general interference with balance, a tendency to trip, and frequent falls.

6 At the time of the transport accident, she was working in two part-time positions. One of these involved serving customers and generally assisting at a chemist shop, and the other was as a veterinary nurse. Following the transport accident, she ultimately returned to both positions, although by 19 May 2002 she had relinquished the job at the chemist shop, having been offered full-time employment at the veterinary surgery. This she accepted, although, because of her injuries, the nature of her duties changed in that she performed more administrative work and less animal nursing. She has now ceased that work.

7 Since 11 November 2002, she and her partner have been operating a butcher's shop in Inglewood. She serves customers, delivers meat and does the books.

8 Since the transport accident, Zimmer has suffered regularly from falls. She falls a couple of times a week as a result of the weakness and spasticity in the left leg, and suffers from weakness, spasticity and loss of sensation in the left leg daily. I accept that Zimmer has a well-established history of falls and loss of balance going back to the transport accident and continuing until the present day. Not only do I accept her evidence in that regard, but I note that Mr Brownbill, who examined her on 19 December 2000, then obtained a history of her inability to walk well, placing that under the heading "Tripping often" and referred to gait disturbance. Mr Michael Dooley, who examined her on the same day, took a history of an awareness of poor balance, weakness of the left upper and lower limbs, and indeed diagnosed weakness and spasticity of the left upper and lower limbs. Thus, well before 19 May 2002, there is a documented history of left-sided weakness and balance problems. Zimmer gave evidence that subsequent surgery to correct the inward turning of her left foot improved her walking but did not improve her balance. This seems to accord with the views contained in the report of Mr Harris who performed the surgery. I accept the evidence which Zimmer gave.

9 On 19 May 2002, Zimmer was in attendance with her partner at the Empire State Hotel in Inglewood. Apparently this was quite a regular occurrence following football matches. She arrived at the hotel at approximately 7:00pm. The place was busy and bustling. I accept that between then and the time at which she fell, which was approximately 11:00pm, she consumed two, or at the most three, West Coast Coolers, which drinks do contain alcohol. It was not put to her that she was intoxicated or affected by alcohol, and there is nothing in the material tendered to suggest that such was the case.

10 I accept that at approximately 11:00pm, when she was standing approximately one half metre from the hearth in front of the fire in the hotel, she received an innocuous nudge or bump. This was to her left side. I accept that she wobbled to the right and back to the left, but her weakened left leg effectively gave way under her and she fell onto the hearth on her right side. As a result, she suffered a displaced fracture of the lateral malleolus of the right ankle, which is the injury in dispute in this case. I also accept that, over the years before the transport accident, she had been nudged and bumped in such a fashion many times without falling. I accept that on the occasion in question she received what was described by her as a very slight nudge which caused her to fall.

11 Zimmer was a most impressive witness, and I accept her as a witness of truth. I accept her account of the symptoms which she has suffered since the transport accident and I accept her account of what happened on the night of 19 May 2002. With the exception of whether she tripped over the hearth, having been pushed, or fell onto the hearth, having been nudged, there was virtually no substantial factual dispute. Zimmer's credit was not attacked and no witness was called to contradict anything which she asserted. As stated, I accept her version of events, and accept that she was nudged, her weakened left side failed to support her, and she fell, whereupon she struck the hearth and suffered the injury for which she ultimately received treatment.

12 It was not disputed that there was some connection between the symptoms resulting from the motor vehicle accident and the fall. Rather, the dispute concerns the directness of that relationship, and whether there has been a novus actus interveniens. I accept that there is a clear link between the symptoms suffered as a result of the transport accident and the fall on 19 May 2002.

13 I turn now to the submissions advanced on behalf of the parties, and I shall deal with them in the order in which they were presented.

14 The case for TAC can be summarised as follows. Pursuant to s.35(1) of the Act, a person who is injured as a result of a transport accident is entitled to compensation in accordance with the Act. In the definitions of "injury" and "transport accident" contained in s.3(1) of the Act, the word "directly" is used. Similarly, in s.3(3)(c), a reference to an injury or death resulting from a transport accident is a reference to an injury or death directly caused by the driving of a motor vehicle. It is agreed that Zimmer did not injure her right ankle in the transport accident. When she did injure her right ankle, it was in excess of three and a half years after the accident. Further, the injury did not occur simply because Zimmer's weakened left leg gave way under her and she fell, as occurred in the later fall of 19 March 2003 described in Zimmer's statement and which she adopted in evidence. The injury occurred because of her being bumped or pushed, without which it would not have occurred. At the time Zimmer was engaged in employment which required her to be on her feet for considerable periods. On the night in question, prior to being pushed or bumped, her evidence establishes that she had been standing for a considerable time without falling. It was her being bumped or pushed, or tripping, that caused the injury.

15 In those circumstances, it could not be said that the injury, for which treatment is sought, was directly caused by the transport accident. As stated by Mr Doig in his report of 5 January 2004, the injury to the Applicant's right ankle is an indirect result of the effects of the transport accident. The legislature could not have intended to extend the meaning of "directly caused by" to the extent required to cover the present situation. The amendment to the Act whereby the words "arising out of" were removed make the intention of the legislation clear. The legislature was narrowing the circumstances to which the Act applies. It could not be said in the present circumstances that there is a direct and sufficient non-coincidental nexus between the driving and the injury so as to enable it to be said that the incident arose directly out of the driving. Reference is made to my decision in Larson v TAC (delivered 4 February 2004) and in particular to paragraph 43 of that decision.

16 Reference is also made to the summary of the law given by Senior Member Megay in Saldaneri v Transport Accident Commission (delivered 5 December 2003) and to the references therein to the well-known passage from Medlin v State Government Insurance Commission [1995] HCA 5; (1994-95) 182 CLR 1 and the decision of Mandie J in TAC v Iacuone [1998] VSC 192; (1998) 14 VAR 464. Reference is also made to the decision of Senior Member Preuss in Barber v Transport Accident Commission (delivered 23 December 2003). There are real factual similarities between Barber and the present case. In Barber, the application failed and the decision of TAC that the injuries suffered by her at the time of the fall were not directly caused by a transport accident was affirmed. In the interests of consistency of decision-making, a similar approach should be adopted in the present case.

17 The case for Zimmer could be summarised as follows. This is a claim pursuant to s.60 of the Act. It is a claim for the payment of certain medical services. The relationship which must be established between the transport accident and the liability of TAC to pay for such services is that the services must be received "because of the transport accident" - see s.60(2)(a). The correct approach, combining the operation of s.3 with s.60, is as follows. The transport accident must be directly caused by the driving of a motor vehicle. The resultant injury must be caused directly by the driving of a motor vehicle and be to a person directly involved in the accident. The medical service received by the person so injured must be received because of the transport accident.

18 In the present case, there is no argument but that Zimmer is entitled to compensation. There is no argument but that she was injured in a transport accident within the meaning of the Act. The direct relationship necessary to satisfy the definitions has been established. What Zimmer must now establish is that the medical and like services received in relation to her right ankle injury were so received because of the transport accident. In this regard, reference is made to the decision of His Honour Judge Strong in Baez v Transport Accident Commission (2001) VCAT 24 and my decision in Rogers v Transport Accident Commission (2002) VCAT 378.

19 The decision in Baez also underlines that, for the purposes of s.60, "because of" does not mean "solely because of". There can be multiple causes.

20 The views expressed by Ashley J in Gennimatas v TAC (2002) VSC 552 are of assistance in relation to causation generally and also in relation to concurrent causes. The decision of Dunin v Harrison (2002) VSCA 125, which is considered in Gennimatas, is also of assistance.

21 In relation to the present case, the relationship between the transport accident and the medical service provided in relation to the right ankle injury is sufficient to satisfy the requirements of s.60. On the evidence, the fall was clearly caused by the ongoing balance disorder and left-sided weakness disorder which in turn were directly caused by the transport accident, so that the fall is also caused by the transport accident. Mr Williams, the surgeon who originally treated Zimmer following the transport accident, has expressed the view that the effects of that accident significantly contributed to Zimmer having a fall in the hotel. Mr Doig, who examined Zimmer on behalf of TAC, also saw a relationship between the left-sided weakness and fall, although saying it was an indirect result of the motor vehicle accident. The physiotherapist, Mr Faulkner, expressed the opinion that the fracture of the right ankle due to poor balance was a direct result of the injuries sustained in the transport accident. The fall being because of the transport accident, the service received in relation to it is so received because of the transport accident.

22 In summary, the chain of causation has not been broken and she sustained the injury to the right ankle because of the severe injuries sustained in the transport accident.

23 I am of the view that the submissions advanced by Mr Keogh in relation to the test to be applied are correct. It seems to me that, in determining whether there is a liability in TAC for medical, hospital and like services provided which relate to the victim of a transport accident, there are three steps to be taken. These are:-

(i) Was there a transport accident - that is, did the accident arise directly out of the driving of a motor vehicle?

(ii) Did the victim of the accident sustain an injury within the meaning of the Act - that is, did the person so involved suffer an injury as described, and was that person directly involved in the transport accident?

(iii) If the person was involved in a transport accident and did suffer an injury within the meaning of the Act, were the services provided because of the transport accident?

24 In other words, if the prerequisite of falling within the definitions of "transport accident" and "injury" is satisfied, the remaining test, pursuant to s.60, is whether the services were provided because of the transport accident.

25 This seems to me to be the relatively clear wording of the relevant sections. It is the test applied by Judge Strong in Baez. It is also the test which I applied in Rogers. Without wishing to lift myself up by my own bootstraps, or indeed by Judge Strong's bootstraps, that approach seems to me to be correct.

26 In the present case, Zimmer was directly involved in a transport accident being an incident directly caused by her driving of a motor vehicle. She suffered injury directly caused by the driving of a motor vehicle. None of these matters are in dispute. Zimmer has established her entitlement to compensation in respect of the injuries suffered in the transport accident. The injuries which she suffered include those that have produced symptoms of loss of balance, left-sided lower limb weakness and spasticity, a tendency to trip and the like. There is no question but that Zimmer did not suffer any injury to the right ankle or lower leg in the transport accident. Against the background of these factual findings, the question then to be answered is whether the medical and like services received in relation to the right ankle injury were so received because of the transport accident.

27 In answering that question, assistance as to the approach to be adopted can be gained from decisions such as Gennimatas. In that decision, there are several helpful statements by Ashley J. Whilst they are remarks and findings directed towards causation in general in the context of the Act, they are of assistance in relation to the approach to be adopted in the present situation. At paragraph 33 of the judgment, Ashley J stated:-

"... the relatively constant theme of the required relationship between transport accident and injury is that injury be a result of the transport accident."

"... I think there is little doubt that it is sufficient that a transport accident be a cause of injury ... there is no reason why the fact that many transport accident injuries will be traumatic and clear cut should lead to a conclusion that the conception of concurrent causation is relatively alien to the Act."

"Upon an action to recover damages permitted by s.93 it would be enough for a plaintiff to establish that the transport accident was a cause of his or her injuries, applying the commonsense test of causation. That exercise would admit of there being concurrent causation. It would be strange indeed if the injuries of which the transport accident could be held to be a cause could be different from the "injury as a result of a transport accident" and the "serious injury" in respect of which the same section of the Act authorised the recovery of damages.

It would, I think, also be strange if the Act was interpreted to mean that injury was only compensable if it resulted from a transport accident - this requiring that the accident be the sole cause of the injury - but that once injury was so established compensation would be payable if the injury either resulted in or materially contributed to earnings loss."

30 There is a further reference to concurrent causes in paragraph 42 of the judgment where Ashley J stated:-

"Insofar as those propositions accept that injury may be contributed by the aggravation of a pre-existing condition they support, inferentially, a conclusion that injury for the purposes of the Act embraces injury with concurrent causes."

31 After considering various authorities, Ashley J concluded as follows at paragraph 45:-

"In the end, the authorities are not at odds with my conclusion that it is sufficient that a transport accident be a cause of injury as determined by the application of common law principle; and that the incapacitating consequences of injury are to be similarly determined." (my underlining)

32 In Baez, Strong J made various observations concerning both the test to be applied and the manner in which it may be applied. At paragraphs 21 and following he stated as follows:

"If it is established that the claimant was injured as a result of a transport accident the claimant is entitled to "benefits" pursuant to Division 3 of Part 3 if the requisite connection between the injury and the class of benefit sought can be demonstrated. It is in this context one comes to consider the expression "medical services received because of the accident" in s.60 (which is part of Division 3).

It follows, in my opinion, that the expression "medical services received because of the accident" means "medical services received because of injury as a result of the accident". This construction is consistent with other sections of Division 3 ...

What level of causation is required by the expression "because of". I have already eliminated "solely because of"."

33 Having effectively rejected the "but for" test, Strong J went on to consider the concept of material contribution, and came to the following conclusion in paragraph 24:-

"It is curious that the causative connection in s.44 is expressed as "materially contributed by" but in s.60 as "because of". I cannot think of a sensible reason why the legislature would impose a more onerous test for recovery of medical expenses than for recovery of lost earnings. As Mr Masel conceded, this is remedial or beneficial legislation and the provisions of the Act should be construed accordingly. It is therefore my view that if injury sustained as a result of a transport accident materially contributes to the need for medical services, the reasonable costs of such services are recoverable pursuant to s.60."

34 In the recent decision of Richards v Transport Accident Commission (2004) VCAT 1267, Senior Member Megay referred to the decision of Ashley J in Gennimatas, and particularly quoted from paragraph 37 thereof. Having so referred to the decision in Gennimatas, Senior Member Megay then continued, in paragraph 23 of her reasons, as follows:-

"It follows that Mrs Richards must show that the transport accident was a _c_ause of the injury or aggravation to her shoulder and thus the need for surgery. I am satisfied that this is so."

35 Senior Member Megay was considering a situation where it had been argued that there was more than one cause of the need for shoulder surgery. The shoulder had not been injured in the transport accident. The applicant's right foot had been, and this resulted in the use of crutches and walking aids. Against a background of degenerative changes, it was argued that the use of walking aids had been a cause of the injury or aggravation, given the presence of pre-existing osteoarthritic or degenerative changes. It was against this background that Senior Member Megay made the ruling referred to above.

36 In Rogers, I had to consider a situation where injury to the applicant's right leg, being injuries sustained in a transport accident, resulted in the shortening of that leg. The applicant had pre-existing problems with his left leg but that limb was not injured in the subject accident. It was argued that the shortening of the right leg placed more stress upon the left so that he then was compelled to wear a properly constructed brace on the left leg virtually permanently. The argument was about the funding of such a brace. It is stated in paragraphs 8-10 of the judgment as follows:-

"... The liability of the Commission is set out in s.60(2). In both sub-paragraphs (a) and (b), the requirement is that the costs be incurred "because of the transport accident."

It seems to me that the test to be applied here is not one of whether the relevant injury was sustained directly to the part of the body that requires treatment, but whether the cost was incurred because of the transport accident ...

Thus it seems to me that the test is whether the medical and like expense in question has been caused by the accident. In my opinion, in this case it has ... Expressed another way, the requirement for the left ankle orthosis is a consequence or sequelae of the injury to the right leg."

37 This general approach to causation, and to s.60 in particular, also seems to me to be consistent with the approach taken in Medlin and in Dunin.

38 Thus, in my opinion what Zimmer must establish for the purposes of s.60 is that the injury suffered in the transport accident is a cause of the provision of medical services. In my opinion, the medical evidence establishes clearly that it is. I accept the evidence of the treating surgeon, Mr Williams, that:-

"... the spastic paraparesis of the left lower limb would have significantly contributed to Ms Zimmer's inability to withstand being pushed in an unexpected fashion in a crowded place such as what occurred to cause the fracture of the right ankle."

"Ms Zimmer had a previous injury which I believe significantly contributed to the development of this fracture."

39 I might say that this is entirely consistent with the following view expressed by Mr Doig who examined Zimmer on behalf of TAC:-

"... I consider that the neurological injuries could certainly have led to the orthopaedic injury to her right ankle. The mechanism that she describes to me in that she had a minor push which she certainly would not have expected to overbalance her at any stage and then because she could not hold the weight on her left leg because of the weakness and spasticity on the left side and therefore had to put all her weight on the right side resulting in the fall is quite consistent."

40 As stated, I accept Zimmer's evidence in relation to both the circumstances of the fall and the problems which she had previously suffered in relation to the left leg and loss of balance. In those circumstances, it seems to me to be relatively clear that the compensable injury suffered in the transport accident was a cause of the fall, and hence of the injury to the right ankle and of the resultant need for the provision of medical and like services. Indeed, it seems to me to be the predominant cause. The services were received because of the transport accident.

41 Mr Klemens has submitted, basically as an alternative or supplement to the argument of direct relationship, that this is a situation of novus actus interveniens. In other words, he has submitted that the immediate cause of the fall and the subsequent injury is the push or trip, without which the right lower leg fracture would not have occurred. The chain of causation has been broken. Accordingly, Zimmer should not succeed. I do not accept this argument. I accept that she received a nudge or bump that would not have caused a person with an unaffected or normal sense of balance, and a normal left leg, to fall. It did cause Zimmer to fall, and in my opinion the causative chain between the need for medical attention to the right lower leg and the transport accident remains unbroken.

42 I am also not persuaded that the decision in Barber should cause me to alter the conclusion at which I have arrived. Firstly, Barber is a decision dependent upon its particular facts. The applicant suffered a leg injury in a transport accident, and subsequently, whilst descending stairs, either her right leg gave way or she tripped and fell for reasons unassociated with the injury. Senior Member Preuss specifically found that, as a matter of fact, she was unsatisfied that the applicant's leg gave way in the circumstances described by her. She specifically found that the applicant either slipped, tripped or fell for a reason other than her leg giving way. She made a particular finding that she accepted the evidence of Mr Shannon, surgeon, whose evidence as recorded in the judgment is to the effect that the applicant's ankle condition, resulting from the fall, was not related to the transport accident. Thus, Barber is a case that was decided specifically on its facts. I see no inconsistency in the Tribunal finding that, on a different set of facts, a relationship between a subsequent occurrence and a transport accident has been established.

43 Secondly, I appreciate that, in paragraph 60 of her reasons, Senior Member Preuss has stated that:-

"... I must be satisfied on the balance of probability that the injuries suffered by the applicant in the fall were directly caused by the transport accident ..."

44 Insofar as the decision of the respondent which she was reviewing related to s.60 of the Act, I am afraid I must disagree with the test applied. It seems to me that, if satisfaction was required, it had to be satisfaction that the medical services received because of the fall had been so received because of the transport accident. In turn, that may require consideration of concepts such as material contribution. However, given the findings of fact made by Senior Member Preuss, the applicant would have failed in any event and the decision is one referrable to its facts.

45 I might add that, even if it is direct causation that is required, I would be satisfied that this has been established in the present case. As stated, I am quite satisfied that the bump or nudge received by Zimmer was so slight that an uninjured person would not have been affected by it. The situation is really little different from a person with a leg weakened by accident wobbling over a rough piece of footpath and the leg then giving way, or such a person having a fall whilst being innocuously jostled when walking along a crowded footpath. As Mr Keogh submitted, to avoid such things would involve the complete and unrealistic cocooning of such a person away from the ordinary events of everyday life. In my opinion, even if Zimmer had to establish a direct causative link between the treatment received and the transport accident, she has so established it.

46 In summary, I am of the opinion that Zimmer succeeds in this application. The decision of TAC of 11 February 2003 is set aside, and in lieu thereof it is determined that the Respondent is liable to pay as compensation to the Applicant the reasonable costs of medical, hospital and like services received by her in relation to the injury to her right lower leg received on 19 May 2002.