Kymantas v TAC
[2010] VSC 634
•9 December 2010
| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
COMMON LAW DIVISION
No. 2594 of 2010
| SEAN KYMANTAS | Plaintiff |
| v | |
| TAC | Defendant |
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JUDGE: | COGHLAN J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 November 2010 |
DATE OF JUDGMENT: | 9 December 2010 |
CASE MAY BE CITED AS: | Kymantas v TAC |
MEDIUM NEUTRAL CITATION: | [2010] VSC 634 |
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ACCIDENT COMPENSATION – Appeal from VCAT – Appeal granted – Section 40(1)(c) Transport Accident Act 1986 – Exception to the exclusionary provisions of being a “driver”.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J.P. Gorton with Ms M.L. Baker | Riordan Legal |
| For the Defendant | Mr J. Pizer | Transport Accident Commission |
HIS HONOUR:
This is an application for leave to appeal a decision of Deputy President McNamara at VCAT on 14 April 2010 in which he dismissed the applicant’s Application for Review pursuant to s 77 Transport Accident Act 1986 (“the Act”). It was agreed by the parties that it was expeditious for the application for leave to appeal and the appeal itself be heard together.
In issue is the interpretation of s 40 and more particularly s 40(1)(c) of the Act. Section 40 of the Act contains the provisions pursuant to which the respondent is not liable to pay compensation of various kinds to persons who are injured as a result of a transport accident. Section 40(1) deals with the liability which the respondent has to pay compensation under ss 44 or 45 of the Act. In general, the provisions deal with payment for the loss of earnings.
It is necessary to set out the relevant statutory provisions:
“40. Circumstances in which certain compensation is not payable or is reduced
(1) The Commission is not liable to pay compensation under section 44 or 45 to a person who is injured as a result of a transport accident if-
…
…
(c) the person was, at the time of the transport accident, the driver of a motor vehicle and-
…
(ii) held or had held such a licence but, at the time of the transport accident, it was suspended or had been cancelled; or
…”
The expressions used in the section are separately defined in s 3 of the Act. “driver in relation to a motor car or motor vehicle includes a person who is in charge of the motor car or motor vehicle”, “transport accident means an incident directly caused by the driving of a motor car or motor vehicle …”.
At VCAT, much of the argument was directed towards the proposition that the applicant was not the driver of his motor vehicle. That issue was resolved against him and although that issue does not fall to be decided by me, rightly so. This matter proceeds before me on the basis that the applicant was the driver of his vehicle at the time of the transport accident.
It was submitted on behalf of the applicant that as he was not “driving” his motor vehicle. The mere fact that he was “the driver” did not exclude him from recovering the relevant compensation.
Since the objectives include the payment of “appropriate compensation”, reliance upon the objectives in that way somewhat begs the question.
Counsel further submitted that the definition of “driver” is very broad, covering every person who is “in charge” of a motor vehicle. He did not challenge the finding below that the applicant was in charge of his motor vehicle. It is not necessary for me to canvas the large body of authority cited, but I regard it as fair to say that a definition of “driver” which is based upon “being in charge of a motor vehicle” will be of very wide import.
Mr Gorton continued by submitting that the notion of being a driver was much wider than that of driving. It was common ground here that the applicant was not driving his motor vehicle at the time of the transport accident. That fact was important, it was submitted, given the definition of “transport accident” referred to above.
That definition includes the words “caused by the driving of a motor car or vehicle”. It followed that although it was accepted that the applicant’s injuries were caused in a transport accident, his status as “the driver of a motor vehicle” had nothing to do with the occurrence of this particular transport accident. The “driving” referred to in the definition was the driving of Ms Thorpe, who was the driver of the other vehicle.
That argument was supported by an analysis of the broad interpretation of “being in charge” of a motor vehicle and the very wide range of circumstances in which a person is said to be the “driver”. It was submitted that even the respondent accepted that some limitation had to be placed upon the interpretation of the sub-section.
It was submitted on behalf of the respondent that the sub-section directed itself to “the driver” and the only added implication which was necessary which was necessary was that the sub-section would have effect only if the driver’s vehicle (here, the applicant’s) was involved in the transport accident. The concession of “involvement” was made to avoid the anomalous operation of the sub-section to those who, because of the wide definition of “driver”, are “the driver” of the vehicle which was not involved in the transport accident. I am not sure that it is necessary for the respondent to avoid anomalies, but if the literal interpretation were to be applied, then the sub-section would have draconian consequences perhaps beyond the intention of Parliament. It was submitted by Mr J. Pizer, who appeared on behalf of the respondent, that the applicant’s submission was the equivalent of changing the words “the driver” in the sub-section to “the person driving”, which was not warranted as a matter of proper statutory interpretation.
Mr J. Gorton, who appeared with Ms M.L. Baker for the applicant, developed the argument for the applicant by making reference to the objectives of the Act, which are set out in s 11 of the Act. He referred particularly to s 11(a):
“(a) to manage the transport accident compensation scheme as effectively, efficiently and economically as possible”.
The submission that there must be involvement of the vehicle before the sub-section would operate appears to accept that not all “driver” who are involved in a transport accident will face the exclusion.
I do not accept that a conclusion follows as a matter of logic. In the definition of “transport accident”, the words used are “the driving of a motor car or motor vehicle”. It follows that, apart from the vehicle which is being driven, it does not require the presence or involvement of another vehicle.
In any instance where a driver is driving his vehicle at the time of a transport accident as defined, it will be almost impossible to see any circumstance where the exclusion would not apply. If more than one vehicle is being driven, then the incident will be directly caused by the driving of both vehicles. Even if a car is struck by another from behind, it cannot be said when answering the question of whether or not a transport accident has occurred, it does not seem to me, in the ordinary use of language, that the driving of one vehicle was the sole direct cause. In that sense, I do not accept the example set out in the respondent’s outline.
On the other hand, in circumstances where one vehicle is being driven and one vehicle is not, the transport accident can only be directly caused by the driving of the one vehicle which is being driven. That is this case.
In an instance where a driver of a vehicle has left it and is then involved in a transport accident, the exclusion will operate or not, dependent upon that driver’s vehicle being involved in the accident. A “driver” struck as a pedestrian will be excluded if, before or after being struck by the car, the driver’s own vehicle is involved. That is extremely artificial and, as I have already observed, there is nothing in the section which leads to such conclusion. In the present case, it does seem a matter of complete happenstance that if the applicant was struck but his vehicle was not, he would not be excluded, but he would still be the driver.
It is much more logical to proceed on the analysis of the relevant circumstances by deciding what is the relevant transport accident. That is to proceed in accordance with the words of the sub-section. Such analysis compels consideration of what driving directly caused the incident. In the present case, it is the driving by Ms Thorpe which directly caused the incident. When analysed in that way, there are no anomalies.
It is, I believe, accepted by the parties that at VCAT the argument mounted on behalf of the applicant was directed to a large degree to the issue of whether the applicant was the driver. The present argument, although advanced, was really a subsidiary one. The way in which the matter was dealt with below is indicative of that.
In the second example relied upon by the respondent, a disqualified or unlicensed driver who had been driving down the freeway stops to use her phone. It is said that it would be an illogical result if she were not excluded in that circumstance when she would be excluded either momentarily before or after the event.
On the respondent’s construction, she would always be excluded because her motor car was “involved” in the collision. There is, in my view, no want of logic in the circumstances. When she is not driving her vehicle, even though she is the driver, in no sense did “her driving of a motor vehicle” cause the collision.
I am not satisfied that there is anything in the ordinary rules of statutory construction which prevent this conclusion and I do not accept that there is anything in the particular use of the words “driving” and “driver” at various places in s 40 that assist the construction contended for by the respondent.
At VCAT, the learned Deputy President dealt with this matter by saying:
“30. As Mr Pizer observed one cannot say that the Statesman was not involved in the incident which constituted the transport accident here. Its door was struck and projected some 150 metres down the road”.
I am satisfied that there is nothing about s 40(1)(c) which would compel the introduction of the notion of involvement of vehicles when the sub-paragraph is concerned with driving and drivers.
It was submitted on behalf of the respondent that the submission on behalf of the applicant sought to convert the word “driver” in s 40(1)(c) to the word “driving”. I do not accept that is so. What the applicant’s submission does is to concentrate on the necessity of the word “driving” as contained in the definition of “transport accident”. I am not entirely sure that much is to be gained by the implied insertion of words or concepts into statutes, and the interpretation I have accepted does not do so.
If descriptive phrases were necessary, it seems to me that a driver will almost always be excluded unless it can be shown that the fact of him being a driver can, on the evidence, be disconnected from the “driving” which caused the incident.
The question posed on this application is:
“Whether, on a proper construction, section 40(1)(c) of the [Act] operates to preclude entitlement to benefits that would otherwise inhere in a person who is injured in a transport accident, in circumstances where that person was ‘in charge of’ a motor vehicle whilst his or her license was suspended, notwithstanding that that person was not ‘driving’ his or any other motor vehicle at the time of the transport accident, with the result that the incident constituting the transport accident was not caused by the driving of another vehicle that the person was not in charge of.”
The matter proceeded before me as an application for leave to appeal. I heard the full argument.
I am satisfied that leave should be granted.
I am also satisfied that the appeal should be allowed. I am satisfied that in circumstances where a transport accident has to be caused solely by the driving of a particular vehicle, that a person who is the driver of another vehicle is not excluded even though he may have been within the exclusionary provisions.
The formal orders of the Court are:
1.That leave to appeal be granted.
2.That the appeal is allowed.
3.That the decision of VCAT be set aside and judgment entered for the applicant.
There was argument before me as to costs. Mr Gorton submitted that the costs below should be granted to the applicant on County Court Scale “D”. Mr Pizer for the respondent contended that only 50% of the costs of the hearing below should be granted because most of the argument below concentrated on the argument as to the meaning of “driver” and to some extent the meaning of “driving”.
Once the issue of driving was resolved in favour of the applicant, it was conceded below that he was not driving. That being so, on my interpretation of the provisions, he was entitled to succeed. He should have his costs.
Mr Pizer submitted that Scale “A” was appropriate, but submitted that if an uplift in costs was warranted above, that it should be to Scale “B”. I am satisfied that there is some importance in the point which falls to be decided. I am not sure that there are many cases to which it will apply. I grant costs on County Court Scale “B”.
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