Koutroulis v Transport Accident Commission
[2011] VSC 159
•28 April 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. S CI 2010 05255
| EVIE KOUTROULIS | Appellant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 April 2011 | |
DATE OF JUDGMENT: | 28 April 2011 | |
CASE MAY BE CITED AS: | Koutroulis v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 159 | |
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ACCIDENT COMPENSATION – “Transport accident” – Appellant’s arm caught in bus door while alighting from bus – Driver unintentionally closing door – Whether open to Tribunal to find that injury directly caused by driving of motor vehicle – Transport Accident Act 1986 ss 3(1), s 93(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Professor P G Nash QC and Mr D Pulling | Slater & Gordon Ltd (Ringwood office) |
| For the Respondent | Mr P Solomon SC and Mr P Herzfeld | The Solicitor to the Transport Accident Commission |
HIS HONOUR:
This appeal, from a decision of the Victorian Civil and Administrative Tribunal (“the Tribunal”), concerns the question whether the appellant, who was injured when alighting from a bus, was injured as a result of a transport accident, for the purposes of the Transport Accident Act 1986 (“the Act”). Somewhat unusually, the appellant contends that the Tribunal erred in finding that she was injured as a result of such an accident, while, on the other hand, the respondent, the Transport Accident Commission, contends that the Tribunal correctly concluded that the appellant suffered her injury as a result of such an accident.
The circumstances, in which the appellant was injured, are uncontroversial, but nevertheless important to the resolution of the central issue in the appeal. In the afternoon of 5 October 2005, the appellant, Mrs Evie Koutroulis, boarded a Ventura bus in Templestowe with her 7 year old son. She disembarked from the bus two stops later. Before doing so, she had pressed the button, as a result of which the bus had come to a stop, and the front and rear doors of the bus had opened. At the time the bus was quite full. The appellant’s son was not very good at boarding and alighting from buses. Accordingly, the appellant alighted from the bus via the front door. She then reached into the bus with her left arm, in order to hold her son’s hand, and thus to assist him to alight from the bus. When she did so, the two segments of the front door of the bus closed on her left arm, entrapping it. Eventually, the door opened, and her arm was freed. However, as a result of the accident, the appellant suffered injury to her neck, left shoulder and left arm.
The bus driver, Mr Torode, gave evidence, which was not contested, that the accident occurred because he intended to close the back door, which was free of passengers, by pressing the button, which would have operated that door. However, instead of doing so, he accidentally pressed the button, which closed the front door, and thus caused the front door to close on to the appellant’s arm. In his evidence before the Tribunal, Mr Torode stated that it was not his intention, when he pressed the button, to close the front door. He confirmed that, at that stage, the vehicle was not ready to drive off, because there were passengers still alighting from it. Mr Torode also explained that, mechanically, the bus is unable to move, if the door is open. He explained that, as a mechanical safety feature, the brakes of the bus are engaged, while the door is open. The bus will not move off, until the door is fully closed. In cross-examination, he stated that, once the door is closed, the driver must then operate the accelerator, before the bus will move off. After the driver has pressed the accelerator, the bus remains stationary for a second or two, and then it moves off.
The claim
The applicant reported the incident to a manager of Ventura Bus Lines. Subsequently, her solicitors unsuccessfully attempted to obtain information from Ventura Bus Lines in relation to her accident. As a result, the applicant’s solicitors made inquiries of the respondent, who, in turn, advised that a claim should be lodged under the Transport Accident Act. In order to protect her interests, the applicant lodged a claim with the respondent. By letter dated 19 January 2009, the respondent accepted the applicant’s claim for compensation. However, the applicant wished to maintain the position that the incident, giving rise to her injuries, did not satisfy the definition of “transport accident” in accordance with s 3(1) of the Act. Accordingly, she made an application to the Tribunal to review the decision of the respondent. That application was heard before the Tribunal on 23 August 2010. On 31 August 2010, the Deputy President of the Tribunal gave his decision, in which he upheld the respondent’s determination that the plaintiff suffered her injuries as a result of a transport accident. The appellant now appeals to this Court, by leave, from the decision of the Tribunal.
Transport Accident Act 1986
The appellant seeks to set aside the determination by the respondent, as affirmed by the Tribunal, that she suffered injuries as a result of a “transport accident”, in order to enable her to make a claim against Ventura Bus Lines for common law damages.
Section 3(1) of the Act defines a “transport accident” to mean:
“ … An incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram.”
Section 93(1) of the Act provides that where a person has suffered an injury as a result of a “transport accident”, that person may only bring proceedings for common law damages in respect of that injury, if the respondent has granted the person a certificate (based on a determination by the respondent that the person has suffered a permanent impairment of not less than 30 percent as measured in accordance with the Guides to the Evaluation of Permanent Impairment 4th Edition published by the American Medical Association), or the court is satisfied that the injury suffered by the person is a “serious injury”, as defined by s 93(17) of the Act. Thus, if the appellant’s injuries were caused by a “transport accident”, she would only be able to claim common law damages by satisfying either of those two criteria specified in s 93. On the other hand, if the appellant’s injuries were not the result of a “transport accident”, but, rather, were “caused by or arising out of the use of” a motor vehicle, she would be entitled to claim damages against Ventura Bus Lines, in respect of which that company would be indemnified by the respondent pursuant to s 94(1) of the Act.
The decision of the Tribunal
In his thorough Reasons for Decision, the Deputy President of the Tribunal outlined the competing submissions by the parties, and reviewed the authorities relating to the interpretation of phrases, similar to those by which a “transport accident” is defined in s 3 of the Act. In doing so, the Deputy President referred, inter alia, to the case of Transport Accident Commission v Pederson, which was one of three appeals decided by the Full Court of the Supreme Court in Transport Accident Commission v Treloar & Ors[1]. The Deputy President then concluded as follows:
“40The crux of the present dispute is to determine whether in closing the doors, Mr Torode is to be regarded as having engaged in the process of driving by taking a step intended to set the bus in motion or whether in closing the doors he was like the driver in Sichter’s case, operating a non-driving function of the vehicle or engaging in an act that was entirely preliminary and not part of the driving at all. This is a difficult line to draw. …
41With some hesitation I conclude that the present incident should be characterised as a transport accident. Mr Torode said that it was his practice to approach a bus stop with the door buttons depressed on the footing that they would not actually open until the bus actually came to a halt. The carriage of passengers is an inherent and integral part of the functions of a motor vehicle. The operation of the doors here is also integrated with the locomotion of the vehicle such that it will only move when the doors are shut. It follows therefore that shutting the doors is as much part of the driving of a motor vehicle as turning on the ignition, moving the selector to ‘D’ or first gear or pressing the accelerator. The present situation is in my view analogous with the case of Bizewski, one of the matters before the Full Court in Treloar’s case where Mrs Bisevski (sic) made an error in selecting ‘R’ rather than ‘P’ for Park. Here Mr Torode pressed the button to close the front door rather than the rear door as he intended. Clearly his immediate purpose in doing so was to close the rear door not to cause the bus to move off but this immediate purpose was part of a wider purpose of readying the bus to move off and hence was part of its driving. This is a clear and direct causal link between the pushing of the button and the causing of the injury.”
[1][1992] 1 VR 447.
The appeal
The appeal is brought pursuant to s 148(1) of the Victorian Civil & Administrative Tribunal Act 1998. That section entitles a party to a proceeding before the Tribunal to appeal to this Court, by leave, on a “question of law”. The requirement, that the appeal be brought on a question of law, necessarily circumscribes the jurisdiction, which I exercise on the appeal. It is for that reason that Order 4 Rule 4.11(1)(b)(iv) of Chapter 2 of the Rules of the Supreme Court requires that the notice of appeal set out the question of law, if any, on which the appeal is brought. That requirement is important, because it facilitates the identification of the jurisdictional basis for the appeal, and thus necessarily defines the ambit of the grounds, on which the appeal is brought.[2]
[2]See Commissioner of State Revenue v STIC Pty Ltd [2010] VSC 608, [9] (Davies J); Hoe v Manningham City Council [2011] VSC 37, [3]-[4] (Pagone J).
In this case, the notice of appeal did not specify the question or questions of law, on which the appeal is brought. The notice of appeal contained four grounds of appeal. However, Professor Nash QC, who appeared, with Mr D Pulling, for the appellant, only relied on grounds 2 and 3, which were in the following form:
“2. The Learned Deputy President erroneously applied the definition of ‘transport accident’ as set out in s 3(1) of the Transport Accident Act 1986 to the circumstances giving rise to the appellant’s injury.
3. The learned Deputy President widened the scope of the said definition to include incidents caused by the actions of a driver performed as ‘part of a wider purpose of readying the bus to move off’ [paragraph 41], when such broad interpretation is against binding judicial precedent, the express words of the statute and the intention of the legislature.”
The third ground raises a question of law, namely, the correct construction of the word “driving”, and of the phrase “directly caused by the driving … ,“ in s 3(1) of the Act. The second ground needs some refinement. It is common ground that “driving”, and the phrase “directly caused by the driving”, are each used in their ordinary and natural meaning in s 3(1) of the Act.[3] As such, it is a question of fact whether the appellant’s injury arose out of an incident, which was directly caused by the driving of the bus by Mr Torode.[4] Accordingly, the second ground of appeal would only succeed, if I were to conclude that it was not open to the Deputy President of the Tribunal to decide that the appellant’s injury was directly caused by the driving of the bus.[5]
[3]See for example Transport Accident Commission v Treloar & Ors (above), 449 (McGarvie and Gobbo JJ); Tink v Francis [1983] 2 VR 17.
[4]S v Crimes Compensation Tribunal [1998] 1 VR 83, 89 (Phillips JA); Tink v Francis (above), 19 (Young CJ), 55 (Southwell J); Heath v Tea Tree Gully City Corp (1996) 66 SASR 548, 555 (Debelle J).
[5]S v Crimes Compensation Tribunal (above) 89 to 92 (Phillips JA); Transport Accident Commission v Iacuone [1998] VSC 192, [36] (Mandie J).
Submissions
Professor Nash’s primary submission, on behalf of the appellant, was that the Tribunal gave to the word “driving” a meaning which was different to, and inconsistent with, the meaning given to it by the Full Court of the Supreme Court in its decisions in Tink v Francis[6] and Transport Accident Commission v Treloar.[7] He submitted that the defined meaning of the word “driving”, in respect of a motor vehicle, consisted of the propulsion or movement of the vehicle, and not activities either preliminary or collateral to the propulsion of the vehicle. Thus, he submitted that the fact, that the closing of the front door was a step towards unlocking the automatic braking mechanism of the bus, could not, itself, be properly characterised as the driving of the bus, because it did not involve the propulsion or movement of the vehicle. Accordingly, Professor Nash submitted that the Deputy President was in error, in paragraph [41] of his reasons, in holding that the readying of the bus to move off was part of the driving of the bus.
[6]Above.
[7]Above.
Professor Nash further submitted that the Deputy President fell into error, in that way, because he wrongly considered that the facts of this case were analogous with the case of Bizewski, which was one of the three matters before the Full Court in Treloar’s case. He submitted that that case should be distinguished from the present case, because Mrs Bizewski, in stopping her vehicle, erroneously caused the vehicle to move, rather than to remain stationary.
Professor Nash submitted that, alternatively, if “driving” does not necessarily involve the movement or propulsion of the vehicle, nevertheless it was not open to the Deputy President to conclude that the actions of the bus driver, in unintentionally closing the front door, constituted part of the driving in any event. In making that submission, Professor Nash contended that, at best, the step undertaken by the bus driver (in intending to close the back door, but, instead, closing the front door) was no more than a step preparatory to the driving of the vehicle, as distinct from the driving of the vehicle. Accordingly, he submitted, it was not open to the Tribunal Member to find that, by unintentionally closing the front doors of the bus, Mr Torode was thereby driving the vehicle at the time at which the appellant was injured.
In response, Mr P Solomon SC, who appeared with Mr P Herzfeld for the respondent, submitted that the Deputy President of the Tribunal did not err in construing “driving” in s 3(1) of the Act. Mr Solomon submitted that, in its ordinary and natural meaning, a vehicle may be “driven”, notwithstanding that it is, at the relevant time, not moving. For example, a vehicle may be described as being driven, notwithstanding that it is stationary at red traffic lights which are applicable to it, or that it is stationary in a line of traffic. Mr Solomon also referred to statements by members of the High Court in Insurance Commission of Western Australia v Container Handlers Pty Ltd & Ors[8], which, he submitted, were to the effect that the accepted meaning of “driving” includes the taking of steps which are preliminary to the putting of a vehicle into motion.
[8](2004) 218 CLR 89, [133] (Callinan J), [141] (Heydon J).
Mr Solomon further submitted that it was reasonably open to the Tribunal to find that the closing of the front door of the vehicle was part of the driving of it. Mr Solomon pointed out that there are a large number of steps, which a driver normally undertakes, before, ultimately, the driver puts a vehicle into motion. In each case, it is a question of fact whether the particular step, so taken by the driver, is part of the “driving” of the vehicle. Mr Solomon submitted that reasonable minds might fairly differ as to whether a particular step, so taken by a driver, may be properly described as part of the driving of the vehicle, or, alternatively, as a step preparatory to the driving of the vehicle. Thus, he submitted that it was a question of fact for the Tribunal to determine whether the closing of the front door of the bus by Mr Torode constituted part of the driving by him of the bus. He further submitted that it was open to the Tribunal to make such a finding, in light of the following facts: the driver was in control of both doors and of the propulsion or movement of the bus; the doors needed to be closed for the bus to move, as part of the ordinary operation of the bus; and the doors had only been opened to allow passengers to alight, while the bus had paused at a stop during its journey.
Analysis
In determining the competing submissions in this case, it is important to bear in mind the question, which was determined by the Tribunal. The primary question for the Tribunal was whether the appellant had been injured as a result of a transport accident, as defined by s 3(1) of the Act. In turn, that issue raised the question whether the incident, in which the appellant had been injured, was caused by the driving of the bus. It was common ground before the Tribunal, and before me, that the requirement, that the incident, in which the appellant was injured, be “directly caused” by the driving of the bus, is a narrower, and thus more strict, requirement, than that contained in other legislative schemes, which require that an injury be “caused by or arise out of” the “use or driving” of a motor vehicle. In particular, it is accepted that the use of the word “directly”, before the phrase “caused by the driving”, in s 3(1), makes explicit the requirement that there be a direct causal connection between the “driving” and the incident in which the appellant was injured.[9]
[9]Transport Accident Commission v Treloar & Ors, above, page 452 (McGarvie and Gobbo JJ); Transport Accident Commission v Iacuone [1998] VSC 192, [32]-[33] (Mandie J); Transport Accident Commission v Jewell [1995] 1 VR 300, 306 to 307 (Tadgell J, with whom Ormiston J agreed).
Thus, the question before the Tribunal was whether the action by the bus driver, Mr Torode, in closing the front door of the bus, was properly considered to be part of the driving by him of the bus. In paragraph [41] of his reasons, to which I have earlier referred, the Deputy President answered that question by concluding that, because the action of the bus driver in closing the door was part of a “wider purpose of readying the bus to move off”, it was, therefore, part of the driving of the bus. The critical questions which arise on this appeal are, first, whether that reasoning by the Deputy President discloses an error in the construction of the term “driving”, and, secondly, whether that finding by the Deputy President was open on the evidence.
Accordingly, it is necessary, first, to consider the meaning which has been given to “driving” in various authorities to which I was referred in the course of argument. In doing so, it is necessary to keep in mind the particular statutory, and factual, context, of the cases to which I was referred. Further, it is important, in considering the statements in the authorities relating to the meaning of “driving”, to bear in mind that those statements were not intended to constitute exhaustive definitions of that word. In particular, they are not to be treated as strictly as a statutory definition of the word.
The first two cases, to which I have been referred, each concerned the question of whether a particular person was “driving”, for the purposes of determining whether that person had committed an offence or offences under the relevant road traffic legislation. In R v MacDonagh[10], the appellant had been convicted of driving while disqualified. At the time of his arrest, the appellant had been pushing his vehicle, with both feet on the ground, while steering the vehicle with one hand inside it. The Court of Appeal held that the appellant had been wrongly convicted, because he was not driving at the time at which he was arrested. In reaching that decision, Lord Widgery CJ stated that, in the Road Traffic Act which was under consideration, the word “drive” was concerned with the “ … use of the driver’s controls in order to direct the movement, however that movement is produced”.[11]
[10][1974] 1 QB 448.
[11]Page 451.
In Tink v Francis, the Full Court of the Supreme Court of Victoria was concerned with the meaning of “drive” in the context of three different cases, in each of which a person had been charged with a driving offence, while the engine of the vehicle was not operating. In the first case, Tink v Francis, the defendant’s vehicle had run out of petrol. At the relevant time, she was in the driver’s seat steering the vehicle while it was pushed along the road by others. In the second case, Hughes v McFarlane, the defendant was at the wheel of a vehicle, which was being towed by another vehicle. In both those cases the Full Court held that the defendant was not driving the vehicle at the relevant time. In the third case, Harris v Broadbent, the defendant had been driving down a hill when his engine cut out. He was unable to restart the motor, but continued to steer the vehicle while it coasted, and eventually it came to a stop. The defendant was convicted of having driven a motor car on a highway carelessly, contrary to s 81(1) of the Motor Car Act 1958. The Full Court held that the defendant had been properly convicted, since at the relevant time he was driving his vehicle.
In the course of his judgment, Young CJ considered the meaning of “driving”, including that stated by the Court of Appeal in R v MacDonagh[12]. His Honour stated:
“There emerges … from a consideration of the authorities the view that before a person can be said to be driving a motor vehicle he must at least have some control over the movement and direction of the vehicle … and generally he must have something to do with the propulsion … The ordinary meaning to be attached to the word ‘drives’ when applied to a motor car should, I think, embrace the notion of some control of the propulsive force which, if operating, will cause the car to move. The propulsive force is not, however, to be confined to sources within the motor vehicle itself, but includes at least the force of gravity and, if momentum can with sufficient accuracy be described as a force, its momentum.”[13]
[12]Footnote above.
[13]Page 9.
In a similar vein, McInerney J stated:
“In its ordinary acceptation the word (driving) would be understood as involving the application of some propulsive force to another person or thing to produce a movement in a certain direction, primarily forward, but on occasions backwards or sideways. … ‘Driving’ involves starting that internal combustion machine, bringing the crank shaft to sufficient revolutions per minute and then by operation of the gear system transmitting those revolutions via the transmission mechanism to the driving wheel so as to cause those wheels and thereby the motor car to move either forward or backwards. … The essential element in driving the car seems to me to be setting or keeping a car in motion by the application or operation of the driving mechanism. … If the engine is no longer capable of propelling the car onwards, either because the car has run out of petrol or the engine has seized or some essential part of the gears or transmission mechanism has become inoperative, the car is ordinarily no longer being ‘driven’.”[14]
[14]Pages 27 to 28.
In Transport Accident Commission v Treloar & Ors[15], the Court of Appeal was concerned with three appeals from decisions of a Deputy President of the Administrative Appeals Tribunal. Each appeal concerned the question whether, in a particular case, a person had been injured as a result of a “transport accident”, which was then defined by the Act to mean an incident “directly caused by, or directly arising out of the driving of a motor car … “. In determining those appeals, the Full Court held that the Deputy President had erred by equating “driving” with “being in charge of” a vehicle. McGarvie and Gobbo JJ, in their joint judgment, defined “driving” in terms similar to that used by the Full Court in Tink v Francis. Their Honours stated:
“… In its ordinary sense driving does not include being in charge of a motor car although it may have that meaning in a particular context or through a definition … That activity is narrower than, and more precise and easily recognisable than, the use of a motor car. To treat a person in charge of a motor car as driving it would be inconsistent with that intention of Parliament. It would widen the activity of driving beyond its normal meaning. … In our opinion, an incident is caused by the driving of a motor car if it is caused by some feature of the driving such as the speed at which, the intention with which or the place to which the car is driven.”[16]
[15][1992] 1 VR 447.
[16]Pages 449 to 450.
The Court applied that meaning to the three cases which were then under consideration. Mrs Treloar had slipped while boarding a bus. Not surprisingly, the Full Court held that Mrs Treloar’s injuries were not caused by the driving of the bus. The second case involved an accident in which Mrs Pederson claimed compensation, in circumstances in which her husband died as a result of a fall from a bus at a bus stop. Mr Pederson’s fall was due to the bus having stopped at a place, at which the passengers were required to step, in the dark, onto rough and irregular guttering. McGarvie and Gobbo JJ, in their joint judgment, held that it would be open to the Tribunal to find that the incident was directly caused by the driving of the bus, if the Tribunal concluded, as a matter of fact, that the stopping of the bus, at the particular point at which Mr Pederson fell, was a cause of the accident. Their Honours therefore held that the case should be remitted to the Tribunal to be decided in accordance with that direction. Brooking J dissented on that case.
The third case, under consideration in Treloar, was the case of Bizewski. In that case, Mrs Bizewski had parked her vehicle on a slope and left the engine running. In doing so, she had pushed the gear selector of the automatic transmission up, but she was unsure whether she had placed it in the “Park” position. When Mrs Bizewski returned to the vehicle, she commenced to install a car seat into the rear seat. While she was doing so, the vehicle commenced to move backwards, as a result of which Mrs Bizewski suffered an injury. It was unclear from the evidence whether Mrs Bizewski had incorrectly selected the “Reverse”, rather than the “Park”, gear when parking the vehicle, or whether, of itself, the gear selector had slipped from the “Park” position into the “Reverse” position. The Court therefore decided that the matter should be remitted to the Tribunal, in order that that question be determined. In doing so, McGarvie and Gobbo JJ held that, if the injury to Mrs Bizewski was caused because she had unintentionally placed the vehicle in the incorrect gear when she parked it, the Tribunal would be entitled to conclude that Mrs Bizewski’s injury was caused by her driving of the vehicle. Their Honours stated:
“According to its ordinary meaning the driving of a motor car normally includes not only bringing it to a standstill but doing what is necessary to the controls such as the handbrake and gear selector so as to keep it standing still … .”[17]
[17]Page 454.
The cases of Mr Pederson and Mrs Bizewski were each concerned with the question of the point at which the driving of a vehicle ceases, rather than with the question of when it commences. Thus, each of those two cases were concerned with the obverse situation than this case. The decision in the third case, that of Mrs Treloar, was more concerned with the issue of causation, rather than with the question of what constituted driving. Thus, to that extent, some caution must be exercised, in applying what was stated by the Full Court to the present case. Nevertheless, it is instructive that the Full Court characterised the “driving” of the vehicle, in each case, in terms which were similar to those stated by the Full Court in Tink v Francis. That observation is, of itself, not surprising, given that in each case the court was determining the plain and ordinary meaning of the word.
The final case, which needs some consideration, is the decision of the High Court in Insurance Commission of Western Australia v Container Handlers Pty Ltd & Ors[18]. That case concerned an injury to a passenger in a prime mover, to which was attached a low loader. The passenger was injured when the driver and he were carrying out repairs to the low loader, while the prime mover was stopped. The passenger successfully recovered damages against the driver’s employer, Container Handlers Ltd. That company brought third party proceedings against the compulsory third party insurer, the Insurance Commission of Western Australia. The issue before the court was whether the injury sustained by the passenger was “directly caused by, or by the driving of, the motor vehicle”, for the purposes of s 4(1) of the Motor Vehicle (Third Party Insurance) Act 1943 (WA). The decision of the High Court on that question was not directly in point, because of other provisions of the Act, which affected the construction of that provision. However, in determining the appeal of the insurer, some members of the High Court considered the meaning of “driving”. McHugh J noted that the dictionary meaning of “drive” was to “operate and direct the course of” and to “operate and control the course of” a vehicle. His Honour concluded:
“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.”[19]
[18](2004) 218 CLR 89.
[19]Para [52], page 110.
In similar terms, Callinan J stated:
“… 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. The correct way of characterising Mr Reiball’s activities was not as driving either of the vehicles, but of preparing them for driving, that is of being put in motion.”[20]
[20][133], pages 132-133.
Heydon J, in his concurring judgment, gave the word “driving” a meaning, which was relied on by Mr Solomon. His Honour stated:
“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 cause 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.”[21]
[21][153], page 141.
Mr Solomon relied on the phrase “preparing to start”, contained in the foregoing quotation. However, I do not consider that Heydon J was thereby giving the word “driving” a meaning which was wider than that stated by McHugh J and Callinan J. In particular, his Honour, at the commencement of the passage quoted, stated that “driving” referred to the control and management of the vehicle “while it is in locomotion”. By referring to steps taken preparatory to starting the vehicle, his Honour was not, thereby, encompassing all the steps anterior to commencing the movement of the vehicle. Rather, it would seem, his Honour was referring to the steps necessarily proximately connected to that process.
For the purposes of this appeal, a number of simple propositions may be derived from the authorities, to which I have just referred. In particular, it is accepted that the core meaning of “driving” consists of the propulsion or movement of a vehicle. Thus, the driving of a vehicle includes those steps undertaken by the driver which concern the propulsion or movement of the vehicle. Further, the decision of the Full Court in relation to Mrs Bizewski, in Transport Accident Commission v Treloar, demonstrates that the concept of “driving” does not conclude at the point at which there is a cessation of propulsion or movement of the vehicle. It includes, at the least, those activities which are necessarily related to the completion of the propulsion or movement, such as engaging the correct gear and braking mechanism, and turning off the ignition. In addition, as the examples given by Mr Solomon in his argument demonstrate, a vehicle may be understood to be driven, notwithstanding that it is temporarily stationary in the course of a journey. Equally, it would follow that it would be inaccurate to maintain that driving does not commence until the moment at which the vehicle begins to move. There are steps, antecedent to movement or propulsion, which are so necessarily connected with it, that they are, in ordinary parlance, understood to be part of the driving of the vehicle.
On the other hand, in its ordinary and natural meaning, “driving” is not understood to include all the steps which are antecedent to the movement or propulsion of the vehicle; nor is it understood to include all the steps which a driver may take in respect of the vehicle, after propulsion or movement has ceased. In particular, in its ordinary meaning, driving does not include steps, which, in time, precede the movement of the vehicle, and which are no more than preparatory to it. In order that a step, which is antecedent to the propulsion or movement of the vehicle, be properly characterised as part of the driving of the vehicle, it must be a step “which is sufficiently closely connected with the driving of the vehicle in a mechanical or functional sense as distinct from a temporal sense”.[22]
[22]Heath v Tea Tree Gully City Corp (1996) 66 SASR 548, 555 (Debelle J); see also at 550 (Cox J); Porter v Bonojero Pty Ltd [2000] VSC 265, [157] (Eames J).
There is, however, no “bright line” which, in ordinary discourse, clearly demarcates those activities, which are commonly understood to be included in the driving of a vehicle, and those activities which would be more properly described as being preparatory or antecedent to that function. Thus, there may be room for disagreement between reasonable minds in respect of some of the steps, which necessarily precede the movement or propulsion of the vehicle. However, that will not always be the case. It is possible to postulate a number of steps, which may precede the commencement of the movement or propulsion of a vehicle, but which could not be properly understood to be part of the driving.
Thus, the question whether a particular step, which precedes the driving of a vehicle, could be properly understood as being part of the driving of it, does involve a judgment as to the sufficiency of the connection between the step and the propulsion or movement of the vehicle. Ultimately, the resolution of that question must depend on the proximity of connection between the step and the propulsion or movement of the vehicle, both in terms of time, and, more importantly, in terms of effect. Thus, the conclusion of fact, by a Tribunal, that a particular step constituted part of the driving of the vehicle, could only be demonstrated not to be reasonably open to the Tribunal, where the degree of connection between the step and the propulsion or movement of the vehicle is such that, in ordinary discourse, that step could not reasonably be understood to be part of the driving of the vehicle.
With those observations in mind, I turn to the decision by the Deputy President in the present case. As I have already noted, the Deputy President considered that the case, which was before him, was analogous with the case of Mrs Bizewski, which was one of the three cases decided by the Full Court in Transport Accident Commission v Treloar. The two cases do have one similarity, namely, that in each case the driver of the vehicle made a relevant error in manipulating a mechanism on the vehicle. However, there are important points of distinction between the two cases. In Mrs Bizewski’s case, the driver made an error in moving the gear selector to “R” (for reverse) rather than to “P” (for park), as a necessary part of stopping the vehicle at the conclusion of its propulsion or motion. That is, the error made by Mrs Bizewski was part of the concluding stages of the movement or propulsion of the vehicle. Further, that error caused her vehicle to move, rather than to remain stationary. By contrast, in this case, the bus was stationary. Mr Torode did not intend to put it into motion. He only intended to close one door, but, mistakenly, closed the front doors, rather than the rear door. Further, that error did not cause the bus to move. In that way, I do not consider that the present case could be properly regarded as analogous to the decision of the Full Court in relation to Mrs Bizewski.
The analogy by the Deputy President, of the case with that of Mrs Bizewski, immediately preceded the sentence, in which the Deputy President concluded that the closing of the front door by Mr Torode was part of the driving of the vehicle, because it was part of a “wider purpose of readying the bus to move off”. However, as I have demonstrated, the fact that a particular step may be taken which, ultimately, could be described as the preparation for the moving of a vehicle, does not, necessarily, lead to the conclusion that, in ordinary parlance, that step could be properly understood to be part of the driving of the vehicle. There are a number of steps, preparatory to driving, which could not be properly understood to be part of the driving of a vehicle. Thus, the description of the (unintentional) closing of the front door by the driver, as part of a “wider purpose of readying the bus to move off”, was not, of itself, sufficient to lead to the conclusion drawn by the Deputy President, namely, that “hence” it was “part of its driving”.
As a result of the foregoing, the question which remains, on this appeal, is whether the ultimate factual conclusion by the Deputy President – that the closing of the front door was part of the driving of the vehicle – was open to the Tribunal. In considering that question, I am conscious that, as I have already stated, there are some steps preliminary to driving, in respect of which reasonable minds might differ as to whether such steps do constitute part of the driving. However, in my view, in this case, the closing of the front door of the vehicle could not properly be understood to be part of the “driving” of the bus, as that term is used in s 3(1) of the Act in its ordinary and natural meaning.
Ordinarily, it would be artificial to describe the closing of the door, of a bus, as part of the driving of it. It is true that, at the time at which the doors were closed, the bus was idling at a bus stop, and the closing of the door was a necessary prerequisite to the bus moving. However, at the time at which the driver (accidentally) closed the front door, he had no intention to close both doors of the bus, and thus to disengage the brakes of the bus. Further, at that stage, he had no intention to commence driving the vehicle. Indeed, as the driver knew, passengers were still disembarking from the bus (in particular, the appellant and her son). In light of those factors, in my view it could not be properly said that the closing of the door was sufficiently proximate in terms of its effect, to the ultimate propulsion or movement of the vehicle, to constitute part of the driving of it. It would be a distortion of the ordinary and natural meaning of the word to describe the closing of the front door of the bus, in the circumstances of this case, as part of the driving of the vehicle. As the Deputy President stated, the closing of one of the two doors of the bus was a step in the “readying” of the bus to move off. However, for the reasons I have stated, I do not consider it was open to characterise it as part of the driving of the bus.
For the foregoing reasons, it was not open to the Deputy President of the Tribunal to conclude that, in the circumstances of this case, the closing of the front door of the bus was part of the driving of the vehicle. Accordingly, the Deputy President made an error of law in concluding that the appellant suffered her injury on 5 October 2005 as a result of a transport accident pursuant to s 3(1) of the Act.
Orders
Subject to hearing from counsel, I therefore propose to make the following orders:
(1)That the appeal by the appellant from the decision of the Deputy President of the Tribunal of 31 August 2010 be allowed.
(2)I set aside the decision of the Tribunal dated 31 August 2010 affirming the determination by the respondent, dated 19 January 2009, that the appellant was injured on 5 October 2005 as a result of a transport accident pursuant to s 3(1) of the Transport Accident Act 1986.
(3)In lieu of such decision, I order that the determination by the respondent, that the appellant was injured on 5 October 2005 as a result of a transport accident, be set aside.
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