Foursquare Construction Management P/L v Victorian WorkCover Authority

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0014

FOURSQUARE CONSTRUCTION MANAGEMENT PTY LTD (ACN 146 607 847)	Applicant
v
VICTORIAN WORKCOVER AUTHORITY	Respondent

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JUDGES:	McLEISH and T FORREST JJA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 October 2022
DATE OF JUDGMENT:	28 October 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 237
JUDGMENT APPEALED FROM:	[2021] VCC 2080 (Judge K L Bourke)

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ACCIDENT COMPENSATION – Appeal – Workplace injury – Serious injury – Truck driver sustained injury falling on mesh at work site – Truck stationary and inoperative – Incident occurred after driver alighted from truck to inspect nearby area – Whether incident a ‘transport accident’ within meaning of s 3 of Transport Accident Act 1986 – Whether injury ‘directly caused by’ the driving of a motor vehicle – Incident insufficiently connected with the driving of the truck – Leave to appeal refused.

WORDS AND PHRASES – ‘transport accident’.

Transport Accident Act 1986, ss 3, 4(1)(c) - Workplace Injury Rehabilitation and Compensation Act 2013, s 369.

Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89 applied; Maitland-Smith v Path Transit Pty Ltd (2009) 52 MVR 185, Transport Accident Commission v Jewell [1995] 1 VR 300, Transport Accident Commission v Iacuone (1998) 28 MVR 505; Porter v Bonojero Pty Ltd [2000] VSC 265, Transport Accident Commission v Billett [2004] VSC 406, Koutroulis v Transport Accident Commission [2011] VSC 159 and Bramich v Transport Accident Commission [2022] VSC 330 referred to; Transport Accident Commission v Treloar [1992] 1 VR 447 and Zengin v Insurance Commissioner of Western Australia [2020] VSC 237 distinguished.

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Counsel
Applicant:		Mr J Ruskin KC with Mr BW Jellis
Respondent:		Mr PH Solomon KC with Mr SE Gladman
Solicitors
Applicant:	Wotton + Kearney
Respondent:	Wisewould Mahony

MCLEISH JA
T FORREST JA
J FORREST AJA:

Introduction

This appeal raises, again, the question of whether the circumstances giving rise to an injury fall within the definition of a transport accident, as provided by s 3 of the Transport Accident Act 1986 (the ‘TA Act’).
On 26 April 2016, Mr Brendan MacDonald, in the course of his employment with the respondent, DC Bin Hire Pty Ltd (‘DC’), suffered an injury to his right leg. At the time he was engaged in the delivery, by truck, of an industrial waste bin to a building site at Mornington. This was managed and controlled by the applicant, Foursquare Construction Management Pty Ltd (‘Foursquare’).
In the course of delivering the bin, Mr MacDonald alighted from his truck (the engine of which was still running) and walked a short distance to inspect the drop-off point; he tripped and fell on a piece of reinforced steel mesh lying on the ground in the vicinity of the truck (the ‘accident’).
Mr MacDonald made a claim for compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 (the ‘WIRC Act’). That claim was accepted by the respondent, the Victorian Workcover Authority (the ‘VWA’) and statutory benefits were paid under the WIRC Act. Subsequently, and pursuant to s 369 of the WIRC Act (the ‘recovery provisions’), VWA sought indemnity for those payments from Foursquare. It issued a proceeding in the County Court (the ‘recovery claim’) on 5 March 2018.
Foursquare, in its defence to the recovery claim, pleaded that the accident was a ‘transport accident’ within the meaning of s 3 of the TA Act and that the serious injury provisions (s 93) of the TA Act had not been satisfied by Mr MacDonald. Therefore, given the terms of the recovery provisions, it contended that VWA had no right to indemnity for payments of compensation made under the WIRC Act.
It was common ground that Mr MacDonald had satisfied the serious injury provisions of the WIRC Act but had not made any application under the serious injury provisions of the TA Act.
As a preliminary issue and with the consent of the parties, the judge dealt with the question of ‘[w]hether Brendan MacDonald’s injuries arose out of a transport accident on 26 April 2016’.
Her Honour answered the question in the negative.[1] This meant that Foursquare’s defence on this point failed, and the recovery claim could proceed to trial. It is that decision which is the subject of this appeal.
1Victorian Workcover Authority v Foursquare Construction Management Pty Ltd [2021] VCC 2080, [1]–[6] (‘Reasons’).
We agree with her Honour’s conclusion and, for the reasons set out below, leave to appeal should be refused.

Factual background

The judge accepted Mr MacDonald’s account of the incident. The proposed notice of appeal challenges two descriptive observations of her Honour. The following facts are not in issue:
(a)on 26 April 2016, Mr MacDonald in the course of his employment with DC drove his tray truck to a construction site in Bungower Road Mornington;
(b)Foursquare was carrying out building works on the site;
(c)the tray of the truck carried an industrial skip bin which was to be unloaded at the site;
(d)when Mr MacDonald arrived at the site, he was directed to place the bin near a building on the site;
(e)at that point, there was a stack of reinforced steel mesh sheets lying on the ground – these were about six metres in width, three metres in length and a few centimetres in thickness;
(f)Mr MacDonald reversed the truck over the stack of mesh sheets and stopped the truck at a position where its front wheels were clear of the sheets, and then placed the truck into the park gear;
(g)Mr MacDonald left the engine of the truck running so that he could operate the hydraulic system that would lower the bin to the ground;
(h)Mr MacDonald alighted from the truck cabin onto a dirt surface and then walked along the driver’s side towards the rear of the tray in order to assess whether he had stopped at an appropriate location to drop the bin;
(i)in doing so, Mr MacDonald initially took a few steps on the dirt, stepped off the dirt and then walked onto the stack of mesh sheets;
(j)Mr MacDonald took about five steps and was about halfway down the side of the truck before tripping on a small piece of the mesh;
(k)Mr MacDonald could have avoided walking across the stack of mesh sheets by taking an alternative route around the front of the truck and then beside the passenger’s side of the truck.
As mentioned, Foursquare in its proposed notice of appeal raised two criticisms of the descriptive parts of her Honour’s findings: first, that Mr MacDonald’s injuries were sustained ‘some distance’ from the truck; and second, that Mr MacDonald’s fall was ‘entirely incidental’ to the positioning of the truck.[2] These are dealt with subsequently.
[2]Ibid [55], [60].

The TA Act and its history

When originally enacted in 1986, s 3(1) of the TA Act defined ‘transport accident’ to mean ‘an incident caused by, or arising out of, the use of a … motor vehicle’.
That definition was later narrowed by amending legislation in 1988 and 1994.
Section 4(1)(c) of the Transport Accident (Amendment) Act 1988 made two alterations to the definition: it inserted the adverb ‘directly’ before the words ‘caused by’ and ‘arising out of’, and it substituted the word ‘driving’ for the word ‘use’. So a ‘transport accident’ at that time was ‘an incident directly caused by, or directly arising out of, the driving of a … motor vehicle’.
Six years later, the definition was again narrowed by the enactment of s 5(1) of the Transport Accident (General Amendment) Act 1994. That provision omitted the part of the definition that referred to an incident ‘directly arising out of’ the driving of a motor vehicle.
Thus, since 1995, a transport accident has been defined in s 3 of the TA Act as ‘an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram’.[3]
[3]Transport Accident (General Amendment) Act 1994 s 5(1) commenced 1 January 1995.

The County Court proceeding

On 5 March 2018, VWA issued a writ with an accompanying statement of claim seeking an indemnity from Foursquare in relation to payments of approximately $119,000 to or on behalf of Mr MacDonald.[4] The indemnity was sought pursuant to s 369 of the WIRC Act and VWA also sought a declaration for an ongoing indemnity in respect of future payments made by it.
[4]In February 2021, an amended statement of claim was filed. The primary alteration was to claim the sum of $290,099.96 (being payments of compensation), as well as the employer’s excess of $3,548.00.
The circumstances in which the injury occurred were described as follows:
11.On or about 26 April 2016 at the direction of the employer, the worker delivered a waste bin to the premises and gained entry thereto with the consent and knowledge of the defendant. Whilst on the premises the worker tripped over some reinforced steel mesh that had been left on the premises and sustained severe injuries.
In its defence filed in May 2021, Foursquare admitted that it was in control of a work site at Bungower Road, Mornington and that it managed the workplace within the meaning of the Occupational Health and Safety Act 2004.
Foursquare also admitted the circumstances of the incident as had been pleaded by VWA and made the following allegations relevant to this appeal:
(a)the reinforced steel mesh was left in situ on the premises by Hayen Brothers Pty Ltd, or another contractor on behalf of them;
(b)Mr MacDonald parked the truck;
(c)Mr MacDonald drove partially on top of sheets of steel mesh reinforcement;
(d)when Mr MacDonald alighted from the truck he alighted and stepped directly onto the sheets of steel mesh reinforcement;
(e)the incident was directly caused by the driving of the truck and consequently was a transport accident.
Then, by paragraphs 24 and 25, it pleaded the following:
…
24.1the incident alleged in paragraph 11 was a transport accident as defined in the Transport Accident Act 1986;
24.2the injuries the plaintiff alleges the worker sustained occurred as a result of the transport accident;
24.3the worker has not complied with the provisions of s 93 Transport Accident Act 1986 and has not obtained a certificate in writing from the Transport Accident Commission consenting to the bringing of the proceedings; and
24.4the worker is not entitled to recover any damages against the defendant.
25 As a result of the matters set out in paragraph 24:
25.1any compensation that has been paid by the plaintiff to or on behalf of the worker (including all of the compensation claimed by the plaintiff in the within proceeding) has not been paid under circumstances creating a legal liability in the defendant to pay damages pursuant to s 369(1) of the WIRC Act; and
25.2the plaintiff’s action against the defendant cannot be maintained.
VWA filed a reply on 4 June 2021, conceding that Mr MacDonald had not complied with the provisions of s 93 of the TA Act.
In addition, VWA denied that the TA Act applied to Mr MacDonald and, for what it was worth, asserted that Mr MacDonald had been granted a serious injury certificate by it pursuant to s 335 of the WIRC Act.
After the filing of the amended statement of claim, the parties consented to the hearing of a preliminary issue, namely ‘whether Brendan MacDonald’s injuries arose out of a transport accident on 26 April 2016’. This was listed for hearing on 2 December 2021.
Three affidavits of Mr MacDonald were filed by VWA. An affidavit of Mr Damian Stewart was filed by Foursquare.

The case at trial

The hearing was admirably short. Both Mr MacDonald and Mr Stewart adopted their respective affidavits and were cross-examined by counsel. The trial commenced and concluded on 2 December 2021.
In his affidavit, Mr MacDonald described the happening of the accident as follows:
Even though there was a reverse camera on the truck, I still needed to get out of the truck to make that assessment. I also wanted to check the wheels were OK after going over the steel reinforcement.
When I exited the truck, I was not standing on the steel reinforcement. I then walked towards the back of the truck across the steel reinforcement which looked like very large pieces to walk on. However, while walking across the steel reinforcement, after taking about 5 steps, when I was about half way down the side of the truck, I stood on what I later realised was a smaller piece of steel reinforcement, and it got caught up in my right foot, causing me to fall over and ultimately land on my right side. I suffered cuts and grazes from the fall and I was bleeding.
In a later supplementary affidavit, he said:
When I stopped the truck I left the engine running and put the truck into park. The engine had to be running in order to operate the hydraulics on the truck which lowered the bin. At that stage the rear wheels of the truck were on the reinforcement. The front wheels were on dirt and not on reinforcement.
I exited my cabin backwards using the steps and stepped onto dirt. I did not step directly onto the reinforcement. I then took a few steps on the dirt towards the back of the truck before I got to the reinforcement. I then stepped off the dirt and onto the reinforcement and took a few more steps and tripped on a smaller cut piece of the reinforcement which I had not noticed.
In cross-examination by senior counsel for Foursquare, Mr MacDonald was adamant that he did not step directly onto the mesh. He agreed with counsel’s proposition that he engaged in an unsafe journey which ended up with him falling over.
Mr Damian Stewart was, at the time of the accident, a project manager employed by Foursquare.
In a statement made a year and a half after the accident (and annexed to his affidavit) he said that Mr MacDonald reversed the truck over the mesh and stopped on top of it:
I was about 5-6 metres away when McDonald’s accident occurred. I saw him alight from the truck cabin. He had to negotiate two steps down. The right front wheel of the truck was on top of the steel mesh, so McDonald stepped onto the mesh. He took a couple of steps on the mesh and then fell, landing on his right knee. He must have tripped or caught his foot on the mesh. It did not seem to me to be a heavy fall.
In cross-examination by senior counsel for VWA, Mr Stewart agreed that at the time of making the statement there were details that might have been blurry and ‘[i]n hindsight, it would have been more accurate had it been done at the time’ – meaning at or around the time of the accident. He remained adamant that his recollection was that the truck had moved on to the mesh. Mr Stewart also agreed that Mr MacDonald took a number of steps towards him – presumably prior to falling.

The judge’s reasons

Her Honour delivered her reasons for judgment in an expeditious fashion, ruling on 17 December 2021 that the incident was not directly caused by the driving of the truck (but that it occurred in circumstances where compensation payments had been made under and pursuant to the provisions of the WIRC Act).
The judge preferred the evidence of Mr MacDonald to that of Mr Stewart:
I prefer Mr MacDonald’s evidence that, after he alighted from the truck, he took a number of steps on the dirt before stepping onto the mesh. He then took a further five steps or so before he fell on a smaller piece of mesh.
Mr Stewart has had little need to recall the incident circumstances and is less likely to be reliable about matters such as the location of the truck relevant to the mesh on the ground than Mr MacDonald. He was prepared to admit it was possible he was wrong about a number of issues.[5]
[5]Reasons, [47]–[48].
The judge then examined the relevant authorities relating to whether Mr MacDonald’s injury was directly caused by the driving of the truck, and concluded that the required element of locomotion, movement or some ‘active process’ was absent:
Although the engine was running, the truck was stationary in park. There was no driver sitting in the driver’s seat in control of the truck at the time Mr MacDonald fell. He was some distance from the truck, walking on the mesh. No one was exercising actual control over the direction and management of the truck as was the case when the passengers suffered injury immediately on alighting from a bus in Pedersen and Zengin.[6]
[6]Ibid, [52]–[55] (citations omitted).
The judge then went on to consider the argument that the truck was parked in an ‘unsafe’ position, as to which her Honour noted:
[H]ad he wanted to, the driver had an alternative route, he could have gone around the other way. So, in those circumstances, there is no inevitability of accident that might imply a direct causal connection between the driving and the incident. So the fact he had an alternative and he had avoided any accident, at least for five steps before he came to grief, indicated the absence of the necessary immediate direct proximate connection between driving and incident.[7]
[7]Ibid, [59] (citations omitted).
The judge held that the required immediacy between the driving and the incident was missing and did not satisfy the ‘immediate causal relationship’ required by the word ‘directly’:
There was an important gap between the conclusion of the driving and occurrence of the incident. The driving had stopped when Mr MacDonald had alighted from the truck. There was absolutely no risk and no hazard involved in him stepping down from the truck onto the ground. The hazard appeared later on, having walked a number of steps on the mesh.[8]
[8]Ibid, [62]–[67] (citations omitted).
Her Honour concluded that the incident was not directly caused by the driving of the truck. That meant that the paragraphs of the defence to the amended statement of claim asserting that the claim was barred by the failure of Mr MacDonald to comply with the serious injury provisions of the TA Act were struck out. Foursquare was ordered to pay the costs of VWA on the standard basis.

The proposed grounds of appeal

Foursquare’s proposed grounds of appeal are as follows:
(1)The learned primary judge erred by finding that the incident in which Mr MacDonald was injured on 26 April 2016 was not directly caused by the driving of the truck and was not, therefore, a ‘transport accident’ within the meaning of s 3 of the Transport Accident Act 1986.
(2)The learned primary judge erred by failing to conclude that, in the circumstances of the case, the place where the truck was parked by the driver, Mr MacDonald, provided the necessary causal nexus with the driving of the truck, for the purposes of the definition of a ‘transport accident’ in s 3 of the Act.
(3)In reaching the conclusion that the incident was not directly caused [by] the driving of the truck, the learned primary judge:
(a)Misconstrued and/or misapplied the relevant legal test in s 3 of the Act, by concluding that:
(i)the vehicle was not being ‘driven’ at the time of the incident;
(ii)there was no ‘inevitability’ of accident;
(iii)there was ‘the absence of the necessary immediate direct proximate connection between driving and [the] incident’;
(b)[Relied] on findings, against the weight of the evidence, that:
(i)The driver was ‘some distance’ from the truck when he fell;
(ii)It was ‘entirely incidental’ that the driver had to exit the vehicle to check where it was parked.

Consideration

Foursquare asserts that the truck stopped on or next to the steel mesh. It argues that it was essential for Mr MacDonald to leave the cabin and walk to the back of the truck to check whether it was properly placed for the delivery. It was hazardous for him to walk from the cabin to the back of the truck because of the steel mesh. Its written case concludes:
Had he not driven and stopped the truck in that place as part of the delivery process, the injury would not have occurred.

In oral submissions this argument was more nuanced. Senior counsel for Foursquare argued that Mr MacDonald’s traversing of the mesh was inextricably associated with the driving of the truck. This was so, because he was in the process of determining whether it was safe to drop the bin off at the point he had chosen.
For the following reasons this proposition, the subject of proposed grounds 1, 2 and 3(a), cannot be accepted.
The first, and most significant, point to be made is that the primary consideration is the wording of the statute, which requires that the accident be ‘directly caused by the driving of’ the motor vehicle — in this case, the truck. Even at this general level, and without the benefit of authority, it must be seriously questioned whether Mr MacDonald’s fall on a piece of mesh (as part of a journey to the rear of the truck and after completing its driving) could be said to be directly caused by the driving of the truck.
Second, the proposition advanced by Foursquare is inconsistent with decisions of the High Court and this Court.
The leading authority on the meaning and scope of this definition and similar expressions is that of the High Court in Insurance Commission of Western Australia v Container Handlers Pty Ltd.[9]
[9](2004) 218 CLR 89; [2004] HCA 24 (‘Container Handlers’).
The facts of that case were as follows:
(a)a low loader attached to a prime mover was used to transport goods in remote Western Australia;
(b)the unsealed roads over which the truck was driven were rough and the conditions were extremely hot;
(c)the wheel hubs on the low loader overheated and seized up requiring repair;
(d)Mr Ashley Sutton (who had travelled as a passenger in the prime mover), assisted the driver of the prime mover in carrying out the repairs;
(e)an axle of the vehicle was jacked up for the repairs to be undertaken;
(f)in carrying out the repairs the jack failed and Mr Sutton’s hand was crushed by the axle;
(g)Mr Sutton successfully sued Container Handlers for damages in negligence in the District Court of Western Australia; and
(h)Container Handlers sought indemnity from the Insurance Commission of Western Australia under its statutory policy of insurance.
The issue on that appeal was whether the circumstances gave rise to indemnity under the policy: specifically, whether the injury sustained by Mr Sutton was, under s 6(1)(b) of the Motor Vehicle (Third Party Insurance) Act 1943 (WA), ‘“directly caused by, or by the driving of,” a motor vehicle’.[10]
[10]Ibid, 136 [142] (Heydon J).
Interestingly, in that appeal, it was conceded that the second part of the definition (directly caused by the driving) did not apply to the facts of the case. So, the question before the Court was whether the injury was directly caused by a motor vehicle. But in considering this issue, there was a careful analysis by the Court of what constituted the driving of a motor vehicle and the legislative history of the statutory definition.
The Court concluded that Mr Sutton’s injury was not directly caused by a motor vehicle.
McHugh J analysed the history of the legislation (which has similarities to the changes of the s 3 definition in the TA Act) and said:
The expression ‘directly caused by ... [a] vehicle’ looks to the vehicle as the harm-causing instrument and requires a direct and immediate connection between the vehicle as the harm-causing instrument and the death or bodily injury.[11]
…
[The] intention was to narrow the scope of the statutory policy by connecting liability under the statutory policy with the locomotion of the vehicle insured. The link with the locomotion of the motor vehicle is maintained through the requirement that the injury be a consequence of the driving of the vehicle or its running out of control.[12]
[11]Ibid, 99 [21].
[12]Ibid, 104 [34].
Under the heading ‘the meaning of driving’, his Honour stated:
The Act does not define ‘driving’. The debate regarding the Amendment Bill in the Legislative Council indicates that the word was to have its ordinary English meaning. The Australian Oxford Dictionary and The New Shorter Oxford English Dictionary relevantly define ‘drive’ as to ‘operate and direct the course of’ and to ‘operate and control the course of’ a vehicle respectively. Thus, when the Act refers to a consequence of the ‘driving’ of the vehicle, it refers to a consequence of the actual operation and control of the direction and speed of the vehicle. This is confirmed by the expression ‘or of the vehicle running out of control’ in the second part of s 3(7), which conveys the notion of a vehicle in motion. This meaning of the word ‘driving’ also finds support in a number of cases, in which the notion of driving has been held to comprehend the controlling of the movement and direction of the vehicle in a substantial sense. Reconciling the outcomes in these cases, however, is probably impossible. The inconsistencies in the conclusions reached by the courts when applying the concept of ‘driving’ show that it is not always easy to draw a line between an activity that can be described as ‘driving’ and one that cannot be so described. In any event, neither the decisions nor the reasoning in each case support the proposition that, after the driver has stopped and got out of the vehicle, he or she is still driving it.[13]
[13]Ibid, 109–10 [52] (emphasis added) (citations omitted).
His Honour then addressed both limbs of the definition:[14]
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…
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.
[14]Ibid, 113–14 [64], [66].
Callinan J said:
To give the relevant provisions the meaning Container Handlers seeks to place upon them would be to ignore, or to give insufficient weight to the repeated use of the word ‘directly’. But of greater significance it would also be to fail to give effect to the intention manifest in s 3(7) of the Act, that the injury is not to be taken to have been caused by a vehicle if it is not a consequence of the driving of the vehicle, or of the vehicle running out of control.[15]
And that ‘driving’ required:
... more than a sine qua non. The word ‘directly’ and the language of s 3(7) are imperious: the insurer will only be liable if a personal injury or death has been directly caused by the driving, that is the operation of a motor vehicle while it is in the control of a driver in the course of putting it into, keeping it in, or bringing its motion to a conclusion, or if the motion is uncontrolled.[16]
[15]Ibid, 132 [132].
[16]Ibid, 132 [133].
Heydon J said of the meaning of ‘driving’:
The full range of possible causes of injury by the agency of a motor vehicle is cut down to those which can be characterised as being a consequence of its driving or its running out of control, and further cut down by the requirement that the causal relationship must be characterised as being direct and not something wider.[17]
So far as the process of cutting down is effected by the reference to the driving of the vehicle, the expression is preceded by the definite article, and is used in the composite phrase ‘a consequence of the driving of that vehicle or of the vehicle running out of control’. In that context at least, the words ‘the driving’ refer to the actual control and management of the vehicle while it is in locomotion. ‘The driving’ of a vehicle, in at least its core meaning in this context, is the activity conducted by a human being in the driver’s seat who manages and directs the course of its movement by operating the controls — preparing to start, starting, accelerating, braking, steering, giving appropriate signals, operating the horn and lights appropriately, stopping and turning the engine off.[18]
[17]Ibid, 141 [153].
[18]Ibid.
Then, after describing activities such as the unserviceable nature of the hydraulic power unit of the low loader, the failure to supply certain items of equipment and the driver’s failure to inspect emergency repair equipment before the start of the journey his Honour said:
Each of these items of conduct falls well outside the reach of the expressions ‘driving’ or ‘consequence of the driving’. They go no closer to ‘driving’ than being acts preparatory to driving. They are not consequences of the driving, for it cannot be the case that everything related to wear and tear caused by the driving of a vehicle at any time since it was new was a consequence of the driving in this context.[19]
[19]Ibid, 144 [160].
He concluded:
But in the context of the policy and s 3(7), the conduct of a person, after a vehicle has come to a stop and the engine has been turned off, who checks for defects in it with a view to improving its performance before it is placed in motion again, is not ‘driving’. Hence the failure of the driver to give the plaintiff proper instructions, to use the jack with an appropriate footing, and to ensure that the plaintiff was in the clear before jacking commenced, were not within the expression ‘driving’.[20]
[20]Ibid, 144 [161].
Subsequently, in Maitland-Smith v Path Transit Pty Ltd,[21] Martin CJ (with whom Le Miere AJA agreed) summarised the decision in Container Handlers as follows:
So, in the result, four members of the High Court (Gummow, Kirby, Callinan and Heydon JJ) construed the statutory scheme such that a claimant for indemnity under the statutory policy was required to establish a direct connection between the driving of the vehicle and the injury giving rise to the liability. 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. All members of the court were of the view that in the circumstances of that case, there was insufficient connection between the driving of the vehicle and the injury to give rise to an obligation of indemnity.[22]
[21](2009) 52 MVR 185; [2009] WASCA 46.
[22]Ibid 193 [39]. This summary may be doubted in so far as it suggests that Heydon J excluded stopping the vehicle and turning off its engine from the concept of ‘driving’.
McLure JA summarised the decision succinctly, stating that:
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.[23]
[23]Ibid 200 [83].
There are multiple decisions of this Court, both in the Court of Appeal and the trial division, dealing with the expression ‘directly caused by the driving’ and its application to the facts of each particular case.[24] A number of those decisions were relied upon by Foursquare to support its argument.
[24]See, eg, Transport Accident Commission v Treloar [1992] 1 VR 447; (1991) 14 MVR 289 (‘Treloar’); Transport Accident Commission v Jewell [1995] 1 VR 300; Transport Accident Commission v Iacuone (1998) 28 MVR 505, [1998] VSC 192 (‘Iacuone’); Porter v Bonojero Pty Ltd [2000] VSC 265; Container Handlers (2004) 218 CLR 89; Transport Accident Commission v Billett (2004) 42 MVR 66; [2004] VSC 406; Koutroulis v Transport Accident Commission (2011) 58 MVR 48; [2011] VSC 159; Zengin v Insurance Commissioner of Western Australia [2020] VSC 237 (‘Zengin’); and Bramich v Transport Accident Commission (2022) 100 MVR 252; [2022] VSC 330.
The appeals of Treloar and Pedersen were heard together,[25] at a time when the definition of ‘transport accident’ extended to incidents directly arising out of, or directly caused by, the driving. In Pedersen the bus had stopped. Mr Pedersen, a passenger, had descended from the steps of the bus and stepped onto ‘rough and irregular’ bluestone guttering.[26] He had one foot on the bus step and one on the bluestone when he fell and suffered a serious injury. The driver had been assisting him from the bus.
[25]Treloar [1992] 1 VR 447; Transport Accident Commission v Pedersen [1992] 1 VR 447 (‘Pedersen’).
[26]Treloar [1992] 1 VR 447, 448.
Mrs Treloar was the first person boarding a different bus which had been driven to a bus stop. She ascended the stairs of the stationary bus and slipped on the second step, fracturing her left tibia and fibula.
In both cases, the Administrative Appeals Tribunal held that the accident was directly caused by the driving of the bus. The majority in the Appeal Division (McGarvie and Gobbo JJ) held that it was open to the tribunal in Mr Pedersen’s case to conclude that the accident was directly caused by the driving of the bus. The basis for so concluding was that the driver had driven to and stopped in an unsafe place for the disembarkation of passengers. Brooking J dissented. In Mrs Treloar’s case the unanimous decision of the Court was that her injury did not directly arise out of, and was not directly caused by, the driving of the bus.
Iacuone also involved an appeal from the AAT.[27] A motor vehicle collided with a tree. Mr Iacuone was in his home nearby when he heard the collision. He was barefooted. He then went outside and conversed with a neighbour and the police and then went back into his house. A piece of glass from the windscreen of the vehicle was embedded in his foot which was later amputated. He claimed compensation under the provisions of the TA Act.
[27]Iacuone (1998) 28 MVR 505.
Mandie J held that it was open to the Tribunal to conclude that the circumstances of Mr Iacuone’s injury constituted a transport accident:
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’. Second, the driving of the motor vehicle was the predominant causal contribution and operative cause of the applicant’s injury: Third, in my view, a reasonable person applying common sense 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.[28]
[28]Ibid, 507.
In Zengin,[29] the plaintiff was a passenger on a bus which came to a halt in order that he might get off the bus. The braking system of the bus was engaged to bring it to a halt and the engine remained running. Mr Zengin then endeavoured to disembark after the driver operated the controls to open the doors. He injured his back as he stepped from the bus onto uneven ground.
[29]Zengin [2020] VSC 237.
Moore J concluded as follows:
I do not accept the Commission’s submission that, analogous with the observations by McHugh, Callinan and Heydon JJ in Container Handlers, the bus driver’s alleged negligence in this case of parking in the wrong spot was a ‘preceding act of negligence’ which did not constitute the driving of the vehicle. Their Honours’ observations must be seen in the context of the particular negligence alleged which is far removed from the present case where the plaintiff’s alleged injury occurred immediately upon him stepping off from the bus. As counsel for Mr Zengin put it, his client’s injury was the ‘immediate consequence to him of where the driver chose to stop and chose to open the door to allow the passengers to embark or disembark’.
Contrary to the submissions on behalf of the Commission, the conclusion I have reached also finds some support in the list of activities given by Heydon J in Container Handlers as falling within the meaning of ‘the driving’ of a vehicle. His Honour separately referred to the driver ‘manag[ing] and direct[ing] the course of [the vehicle’s] movement by operating the controls’ by, amongst other things, ‘braking’ and ‘stopping’. This suggests that his Honour recognised that the ‘stopping’ of a vehicle was an aspect of driving beyond the specific task of applying a vehicle’s brakes. For the reasons I have explained, the ‘stopping’ of a passenger bus is an activity particularly characteristic of passenger buses.
As submitted on behalf of the Commission, I accept that the judgments of at least McHugh and Callinan JJ in Container Handlers stand as a rejection of what was described as ‘sine qua non reasoning’ in determining whether an injury is directly caused by the driving of a vehicle. As I have explained, the conclusion I have reached is instead based upon an examination of whether Mr Zengin’s injuries were suffered as a consequence of the driver’s control of the movement and management of the bus.[30]
[30]Ibid, [60]–[62] (citations omitted).
None of these decisions advances Foursquare’s case in any meaningful way. Pedersen and Iacuone were decided before Container Handlers and must be treated with some caution for that reason. Each involved a determination as to whether the decision of the AAT was open on the facts. Moreover, as Mandie J (who was obliged to follow the majority decision) recognised in Iacuone, the dissenting judgment of Brooking J in Pedersen had ‘considerable logic’[31] — all the more so in the light of the subsequent statements of the High Court. Zengin ultimately turned on the particular nature of the vehicle and its characteristic of regularly stopping.
[31]Iacuone (1998) 28 MVR 505, 511.
It is of little utility delving any further into the facts of other cases as it is the particular factual matrix that determines whether circumstances fall within or outside the s 3 TA Act definition of a transport accident.
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.
In our view, and in light of the authorities we have referred to, the judge was correct in concluding that the connection between the circumstances of Mr MacDonald’s injury and the driving of the truck was insufficient to satisfy the s 3 TA Act definition. This is for the following reasons:
(a)the truck was stationary and had been placed in park. It was neither propelled nor moving at the time of the accident;
(b)the fact that the engine of the truck was left running when it became stationary is irrelevant as there was neither relevant propulsion nor movement of the vehicle at the time of the accident;
(c)the accident did not occur as a result of Mr MacDonald alighting or exiting the cabin directly after the driving had ceased;
(d)at the time of the accident Mr MacDonald was not endeavouring to engage or prepare the truck for movement so that the bin could be unloaded;
(e)the accident was a result of three factors unrelated to the driving of the truck, namely:
i.Mr MacDonald’s decision to inspect the area in which the bin was to be unloaded;
ii.the path he took to carry out the inspection; and
iii.the presence of the mesh on that path;
(f)Mr MacDonald was spatially and temporally removed from the driving of the vehicle. He had left the vehicle, taken steps on the dirt and then five steps along the mesh.

We accept the argument of senior counsel for Foursquare that there may be multiple causes of an accident and that identifying one that is causally related to the driving may be sufficient. However, this is not such a case. At the time of the accident Mr MacDonald’s actions were not, as in some of the decided cases, so connected with the driving of the truck for his actions to be treated as ‘directly caused by the driving’. As McHugh J explained in Container Handlers, the fact that Mr MacDonald had driven to the point where the accident occurred does not mean that the definition is engaged. No ‘particular feature’ of the driving of the truck, including the place where it stopped, caused him to walk or trip on the mesh.[32] In that respect, the case is far removed from the bus cases to which we have referred.
[32]Container Handlers (2004) 218 CLR 89, 114 [65] (Gummow J).
The result is that the s 3 TA Act definition of ‘transport accident’ is not satisfied.
This conclusion is sufficient to dispose of proposed grounds 1, 2 and 3(a).
We should add that we specifically reject the proposition that her Honour misconstrued or misapplied the relevant legal test as asserted in proposed ground 3(a). To the contrary, her Honour applied the appropriate legal test, considered the relevant authorities and their application to the facts, and reached the correct conclusion.
In relation to ground 3(b) and the assertions of two specific errors on the part of the judge, nothing turns on these.
Her Honour’s reference to Mr MacDonald being ‘some distance’ from the truck is qualitative and descriptive. It is patent that her Honour accepted Mr MacDonald’s evidence that he had stepped onto dirt then walked on the mesh approximately five steps, and concluded:[33]
[W]hat is absent in this case is immediacy between the driving and between the incident. In that context, the number of steps Mr MacDonald took is absolutely relevant.
[33]Reasons, [64].
Her Honour’s conclusion was plainly correct.
As to the other asserted specific error — that it was entirely incidental that the driver had to exit the vehicle to check where it was parked, we see no error. By the use of the word ‘incidental’ we understand her Honour to be explaining that the actions of Mr MacDonald did not have any direct relationship to the driving of the truck and thus failed to satisfy the test under the s 3 TA Act definition. We agree.
Leave to appeal should be refused.
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[2022] VSCA 237

28 October 2022