Transport Accident Commission v Kymantas
[2012] VSCA 135
•29 June 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2010 0174 | |
| TRANSPORT ACCIDENT COMMISSION | Applicant |
| v | |
| SEAN KYMANTAS | Respondent |
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JUDGES: | NETTLE and HANSEN JJA and KYROU AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 March 2012 | |
DATE OF JUDGMENT: | 29 June 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 135 | |
JUDGMENT APPEALED FROM: | [2010] VSC 634 (Coghlan J) | |
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ACCIDENT COMPENSATION – Transport accident – Injury – Claim for loss of earnings – Injury suffered while ‘driver’ (as being ‘in charge of’ motor vehicle) when licence to drive cancelled – Exclusion of liability – Transport Accident Act 1986 (Vic) s 40(1)(c)(ii) – ’Incident directly caused by the driving of a motor car’ – Whether necessary that ‘driver’ be person ‘driving’.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P H Solomon SC with Mr J D Pizer | Solicitor to the Transport Accident Commission |
| For the Respondent | Mr J P Gorton SC with Ms M L Baker | Riordan Legal |
NETTLE JA:
This is an application for leave to appeal against a judgment given in the Common Law Division, upholding an appeal on a question of law from a decision of the Victorian Civil and Administrative Tribunal (‘VCAT’). It concerns a transport accident which occurred on 3 April 2009.
VCAT held that the respondent (‘Mr Kymantas’) was a person who, at the time of the transport accident, was the driver of a motor car, and held a licence to drive a motor car which was suspended or cancelled within the meaning of s 40(1)(c)(ii) of the Transport Accident Act 1986 (‘the Act’), with the result that the applicant (‘the Commission’) was not liable to pay compensation under s 44 or s 45 of the Act.
The question of law which the judge was required to determine was:
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 licence 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 caused by the driving of another vehicle that the person was not in charge of.
The judge answered that question as follows:
in circumstances where a transport accident has to be caused solely by the driving of a particular vehicle, … a person who is the driver of another vehicle is not excluded even though he may be within the exclusionary provisions.
It followed, his Honour held, that the appeal should be allowed and that there should be judgment for Mr Kymantas.
I have had the considerable advantage of reading in draft the reasons for judgment of Hansen JA, and I agree with his Honour that the appeal should be allowed and with the orders which his Honour proposes. I wish, however, to add some reasons of my own.
The facts
The facts of the matter, as found by VCAT, are that:
At about 10.00 pm on 3 April 2009 Mr Kymantas was in the emergency lane of the southbound carriageway of the Princes Freeway some hundreds of metres north of the BP petrol station at Little River. He was struck by a Geelong bound vehicle suffering multiple injuries. Mr Kymantas lodged a form dated 14 April 2009 claiming compensation under the Transport Accident Act 1986 from the respondent Transport Accident Commission. The Commission accepted liability to pay Mr Kymantas compensation for his medical and like expenses under Section 60 of the Act but denied liability to pay him loss of earnings benefits, relying on the provisions of Section 40 of the Act. Mr Kymantas seeks review of this determination pursuant to Section 77.
Mr Kymantas was born in 1976 and has had frequent brushes with the law. In 1995 he pleaded guilty to a variety of offences involving theft. He regards these as youthful indiscretions which ought to be left in the past. More significantly for present purposes he has been convicted of a large number of traffic offences and has had his licence to drive cancelled on a number of occasions. On one occasion he served a term of imprisonment for driving whilst disqualified. On 9 April 2009[1] his licence was cancelled and he was disqualified from driving.
[1]In fact the respondent’s licence was cancelled on 8 January 2009 for 18 months.
Mr Kymantas is a rigger by trade. He was travelling home to his residence in a Geelong suburb. His car was a 1997 Holden Statesman which contained his tools of trade. On that evening he told a Transport Accident Commission investigator on 6 May 2009, he knew the fuel was running low as the trip computer on the car said it still had 55km to go until empty but sometimes some grit gets in the fuel tank when it gets low. The car ran out of fuel and he said his car stopped:
With the rumble strip about half a metre to the right of the driver side door.
He said he tried to push the car to the BP service station some distance to the south along the freeway:
The car was already steered on a straight line ahead so I gripped the roof pillar with my left arm and the front pillar of the car door with my right arm.
It was in these circumstances that Mr Kymantas was struck. In a statement to the investigator on 6 May he said ‘the keys were still in the ignition and the stereo was on’, but in his evidence before me he said the ignition keys were in his pocket. He told the investigator:
The car has wide tyres and big wheels and that makes it harder to move. If I had got it moving then I intended to steer it further off the road and towards the service station.
In his statement to the investigator, Mr Kymantas said that his father was driving the car and had set off on foot to the service station to buy some petrol and return to the car to re-fuel it. In his evidence before me he said his father was not involved at all. He (the applicant) was driving the car alone when it ran out of fuel.
After the incident Mr Kymantas told a number of people that at the time of the impact he was ‘pushing his car’. Mr Brad Webb, a passer-by who stopped to render assistance gave this account. The records at Geelong Hospital and those of the ambulance which eventually picked-up Mr Kymantas are to similar effect. Mr Kymantas’ account at the Tribunal hearing was that whilst he was pushing his car in the sense of applying his muscle to it, he had failed to get it to move because it was a large vehicle loaded with his tools of trade. He agreed that he did not say this to anyone of the various persons that he spoke to on the night of the incident. At that time, as he saw it, whether the car had actually been pushed into motion or not was beside the point and not something that called for any comment or elaboration.
Relevant statutory provisions
The entitlement to compensation under the Act is governed by s 35. Section 35(1) of the Act provides that:
35 Persons entitled to compensation
(1)A person who is injured as a result of a transport accident is entitled to compensation in accordance with this Act if—
(a)the accident occurred in Victoria; or
(b)the accident occurred in another State or in a Territory and involved a registered motor vehicle and, at the time of the accident, the person was—
(i) a resident of Victoria; or
(ii) the driver of, or a passenger in, the registered motor vehicle.
‘Transport accident’ and ‘driver’ are defined in s 3 of the Act as follows:
transport accident means an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram;
…
driver in relation to a motor car or motor vehicle, includes a person who is in charge of the motor car or motor vehicle.
Section 40 of the Act specifies a range of circumstances in which compensation is not payable. It states that:
40Circumstances 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—
(a) the person—
(i)was driving a motor vehicle at the time of the transport accident; and
(ii)is convicted, in respect of driving the motor vehicle at that time, of an offence under section 49(1)(a) of the Road Safety Act 1986 or under a law that is, in relation to that Act, a corresponding law—
unless the person satisfies the Commission that the intoxicating liquor or drug did not contribute in any way to the transport accident; or
(b)the person was, at the time of the transport accident, the driver of, or a passenger in, a motor vehicle owned by the person in respect of which a transport accident charge payable in respect of a period including that time had not been paid; or
(c)the person was, at the time of the transport accident, the driver of a motor vehicle and—
(i)had never held a licence to drive a motor vehicle of that class under the Road Safety Act 1986 or a corresponding previous enactment or under a law that is in relation to the Road Safety Act 1986 a corresponding law or under a law of another country; or
(ii)held or had held such a licence but, at the time of the transport accident, it was suspended or had been cancelled; or
(iii)in the case of a transport accident occurring on or after the commencement of section 12 of the Transport Accident (Amendment) Act 2000, held or had held such a licence but, at the time of the transport accident, it had not been renewed for at least 3 years; or
(d) the person—
(i)was, at the time of the transport accident, the driver of or a passenger in a motor vehicle being used for or in connection with or in the commission of an indictable offence, stealing or attempting to steal a motor vehicle, resisting or preventing the lawful apprehension or detention of that person or any other person or intentionally causing or attempting to cause injury to that person or any other person; and
(ii) is convicted of that offence.
(2)The Commission is not liable to pay compensation under section 44, 45, 47, 49, 50 or 51 to a person who is injured in a transport accident if the person—
(a)the person was driving a motor vehicle at the time of the transport accident; and
(b)is convicted of an offence in relation to the transport accident under 49(1)(ba), (c), (ca), (d), (e), (ea) or (eb), 56(2) or 56(7) of the Road Safety Act 1986 or under a law that is, in relation to that Act, a corresponding law.
(3)The Commission is not liable to pay compensation under section 47, 49, 50 or 51 to a person who is injured in a transport accident if the person was driving a motor vehicle at the time of the transport accident and is convicted, in respect of driving the motor vehicle at that time—
(a)of an offence under section 49(1)(a) of the Road Safety Act 1986 or under a law that is, in relation to that Act, a corresponding law; or
(b)of an offence under section 49(1)(b), 49(1)(f) or 49(1)(g) of the Road Safety Act 1986 or under a law that is, in relation to that Act, a corresponding law and the relevant level of concentration of alcohol in the person's blood was 0×24 grams or more per 100 millilitres of blood or in the person's breath was 0×24 grams or more per 210 litres of exhaled air, as the case requires—
unless the person satisfies the Commission that the intoxicating liquor or drug or the concentration of alcohol in the blood or breath, as the case may be, did not contribute in any way to the transport accident.
(4)Subsection (5) applies if a person who is injured in a transport accident was driving a motor vehicle at the time of the transport accident and is convicted in respect of driving the motor vehicle at that time—
(a)of an offence under section 49(1)(b), 49(1)(f) or 49(1)(g) of the Road Safety Act 1986 or under a law that is in relation to that Act, a corresponding law; and
(b)the relevant level of concentration of alcohol in the person's blood was more than 0×05 grams per 100 millilitres of blood or in the person's breath was more than 0×05 grams per 210 litres of exhaled air, as the case requires.
(4A) Subsection (5A) applies if a person who is injured in a transport accident
driving a motor vehicle at the time of the transport accident and is convicted in respect of driving the motor vehicle at the time of an offence under section 49(1)(bb), (h) or (i) of the Road Safety Act 1986 or under a law that is in relation to that Act a corresponding law.
(5)The compensation under section 44 or 45 in respect of a person to whom subsection (4) applies—
(a)is reduced by one-third if the concentration was more than 0×05 and less than 0×12; and
(b)is reduced by two-thirds if the concentration was 0×12 or more and less than 0×24; and
(c)is not payable if the concentration was 0×24 or more—
unless the person satisfies the Commission that the concentration of alcohol in the blood or breath of the person did not contribute in any way to the transport accident.
(5A)The compensation under section 44 or 45 in respect of a person to whom subsection (4A) applies is reduced by one-third unless the person satisfies the Commission that the concentration of drugs in the blood of the person did not contribute in any way to the transport accident.
(6)For the purposes of subsection (1), a person who drives a motor vehicle at a particular time is not to be deemed never to have held a licence to drive a motor vehicle of that class if at that time—
(a) the person was—
(i) the holder of a learner permit in respect of a motor vehicle of that class under the Road Safety Act 1986 or under a law that is, in relation to that Act, a corresponding law; or
(ii) participating in a training program accredited under the Road Safety Act 1986; and
(b)in the case of a motor vehicle other than a motor cycle or a tractor, the person had a licensed driver (not being the holder of a licence issued on probation) sitting beside him or her.
The judgment below
It was not in issue before the judge that, although Mr Kymantas was not driving his car at the time of the accident, he was in charge of the car and was, therefore, ‘the driver’. The reason that his Honour gave for holding that s 40(1)(c)(ii) of the Act did not apply was that, in his Honour’s view:
… where a transport accident has to be caused solely by the driving of a particular vehicle, … a person who is the driver of another vehicle is not excluded even though he may be within the exclusionary provisions.
The applicant’s contentions
The Commission contends that the judge erred by reading into s 40(1)(c)(ii) words which are not there. Counsel for the Commission submitted that the exclusion of benefits provided for in s 40(1)(c)(ii) is in terms conditioned on only two requirements, being:
i. At the time of the transport accident the person be the driver of a motor vehicle; and
ii. At the time of the transport accident the person have held a driver’s licence which has been cancelled.
The effect of the judge’s reasoning, counsel said, was impermissibly to add a third condition or proviso to the effect that:
iii.The exclusion of benefits does not apply where the transport accident is caused solely by the driving of a vehicle other than the vehicle of which the person is the driver.
The respondent’s contentions
Counsel for the respondent argued, against that contention, that the judge did no more than interpret the section permissibly according to its context; in particular the requirement that, in order to be a transport accident, an accident must be directly caused by the driving of a motor vehicle. In counsel’s submission, the judge was right to limit the operation of the section in that manner because otherwise the exclusion of benefits would reach to situations to which it cannot rationally be supposed it was intended it to apply: for example, a driver of a parked car who is hit by another car when crossing the road. The more logical and compelling conclusion, counsel submitted, is that, when Parliament provided for the exclusion of a person in charge of a motor vehicle at the time of the transport accident, it had in mind a person in charge of a motor vehicle which is being driven at the time of the transport accident and thus, to some extent at least, is causative of the transport accident.
The judge’s approach to the construction of s 40(1)(c)(ii)
Contrary to the Commission’s contentions, I do not think that the judge read in a proviso to the effect that the exclusion of benefits does not apply where a transport accident is caused solely by the driving of a vehicle other than the vehicle of which the person is the driver. Rather, as I apprehend his Honour’s process of reasoning, it proceeded as follows:
a) As a matter of definition, an accident cannot be a ‘transport accident’ unless it ‘is directly caused by the driving of a motor car or motor vehicle’;
b) In this case, the only car which was being driven, was the car which ran into Mr Kymantas’ car;
c) Consequently, the fact that Mr Kymantas was the driver of his car had nothing to do with making the incident qualify as a transport accident; and
d) Therefore, the fact that he was the driver of his car should not be regarded as something at which, in those circumstances, s 40(1)(c)(ii) was aimed.
His Honour’s reference to the need for a transport accident to be caused solely by the driving of a vehicle was intended, I think, merely as a means of explicating the proposition that, because an accident cannot be a ‘transport accident’ unless it ‘is directly caused by the driving of a motor car or motor vehicle’, the fact that a person is the driver of a motor vehicle at the time of an accident cannot result in the accident being a transport accident unless the vehicle is being driven at the time of the accident. In effect, the judge accepted the respondent’s argument.
Evidently, the judge was concerned that, unless the application of s 40(1)(c)(ii) were limited to a vehicle being driven at the time of the transport accident, it was capable of applying to a person in charge of motor vehicle (in the sense of having it in his or her custody or control) even if the vehicle had nothing to do with the accident. One example of what his Honour had in mind arose in discussion during the hearing at VCAT when the Deputy President referred to the possibility of an unlicensed driver parking his or her car and then, when walking from the car across the road to a coffee shop, being struck by another passing vehicle.
Ultimately, the Deputy President concluded that it was not a problem, because he regarded s 40(1)(c)(ii) as limited to circumstances in which the car of which the person is a driver is involved in a transport accident; and that, as a matter of fact and degree, the parked car in the circumstances postulated could not be said to be involved in the accident constituted of the passing car striking the person. But the judge took a different view. His Honour reasoned that:
…where a driver of a vehicle has left it and is then involved in a transport accident, the exclusion [sic, s 40(1)(c)(ii)] 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 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 accident. In the present case, it is the driving by [the driver of the car which ran into the Mr Kymantas’ car] which directly caused the incident. When analysed in that way, there are no anomalies.
With respect, I think that there are a number of problems with the judge’s approach which led him to the wrong conclusion.
To begin with, his Honour proceeded upon what seems to me to be a misconception that, without reading in the words ‘being driven’, the potential scope of application of s 40(1)(c)(ii) would be unlimited. Given that s 40(1)(c)(ii) is not engaged unless a person is injured as a result of a transport accident, and unless the person is driving or in charge of a motor vehicle at the time of the accident, it appears to me to be axiomatic that the vehicle which the person is driving or of which the person is in charge must to some extent at least be involved in the transport accident.
Whether a motor vehicle is involved in a transport accident is then a question of fact and degree dependent on the circumstances of a given case. For example, if a motor vehicle is productive of the physical forces which result in a transport accident then, according to the ordinary acceptation, one would say that the motor vehicle is involved in the transport accident. Similarly, if a motor vehicle were being pushed or towed along the roadway, or at the edge of it, and another car ran into it, one would say that the motor vehicle was involved in the transport accident comprised of the impact. So, too, if a motor vehicle were stationary, whether on the roadway or parked at the side of it or off it, and another vehicle ran into it, one would ordinarily say that the stationary motor vehicle was involved in the accident comprised of the impact. On the other hand, if a driver of a motor vehicle were to park the vehicle lawfully at the side of the road and set out on foot across the road, say, to a shop on the other side, and were struck by a passing car, one would not ordinarily speak of the parked vehicle as being involved in the accident comprised of the passing car striking that person as he or she crossed the road. I share the view of the Deputy President that s 40(1)(c)(ii) would not apply in those circumstances.
Secondly, the judge’s approach of reading in the words ‘being driven’ gives little weight to the overall pattern of the drafting of the legislation. Elsewhere in s 40 where Parliament has provided for an exclusion of benefits conditioned on a particular kind of use of a vehicle, it has specified that particular kind of use with precision. For example, in s 40(1)(d)(i), the words ‘being used for or in connection with an indictable offence …’ appear immediately after the words ‘motor vehicle’ in a manner which makes clear that the exclusion is conditioned on the vehicle being used in connection with an indictable offence. Assuming a degree of drafting consistency within s 40(1), the implication is that, if Parliament had intended it to be a condition of operation of s 40(1)(c)(ii) that the vehicle in question be driven at the time of the transport accident, the words ‘being driven’ would have appeared immediately after the words ‘motor vehicle’. Co-ordinately, the absence from s 40(1)(c)(ii) of the words ‘being driven’ implies that ‘being driven’ was not intended to be a condition of operation of the provision.[2]
[2]According to the maxim expressum facit cessare tacitum.
Thirdly, and most importantly, the judge’s approach to the construction of s 40(1)(c)(ii) assumes a meaning of ‘in charge of’ in the definition of ‘driver’ in s 3 which is at odds with the lineage of s 40(1)(c)(ii) and the background of judicial construction against which it was enacted.
Legislative history of s 40(1)(c)(ii)
Before the coming into force of the Transport Accident Act 1986, the scheme for the compensation of victims of motor accidents was one of compulsory third party insurance provided for in Division 1 of Part V of the Motor Car Act 1958. For the purposes of that scheme, s 38(1) defined ‘Driver’ as follows:
‘Driver’ in relation to a motor car includes any person who is in charge of the motor car and ‘drive’ and ‘driving’ have a corresponding meaning.
Division 1 of Part V provided for insurance cover for the owner of a motor car and any other person who drove the car, whether with or without the authority of the owner, against any liability (including liability for costs) which might be incurred by the owner or other person in respect of death or bodily injury to any person caused by or arising out of the use of the motor car in Victoria or another State or Territory of the Commonwealth. When first enacted, there were no exceptions to the scheme.
Over time, some exceptions were added. The first was enacted as s 2 of the Motor Car (Compulsory Third Party Insurance) Act 1967. It provided that:
a) the liability of the authorised insurer under the contract is and shall be deemed always to have been limited to $4,000 in respect of any claim arising on or before the 14th day of December 1965 made by or in respect of any passenger in the motor car to which the contract of insurance relates...; and
b) the contract does not and shall be deemed never to have been a contract to indemnify the owner or driver of the motor car to which the contract relates -
(i) against any liability which may be or have been incurred in respect of the death of or bodily injury to the driver or the owner of the motor car; or
(ii) ... .
‘Driver’ was defined in s 38(1) of the Motor Car Act 1958, and thus for the purposes of the exception, as follows:
‘Driver’ in relation to a motor car includes any person who is in charge of the motor car and 'drive' and 'driving' have a corresponding meaning.
The effect of that exclusion was considered by Gowans J in Riley v Insurance Commissioner.[3] The question was whether a young man, Riley, who had been driving his mother’s car but had relinquished the driving to a friend shortly before the accident, was denied cover as the driver of the car within the meaning of s 38(2) of the Motor Car Act. The compulsory insurer argued that Riley was the driver because he considered himself entitled to give directions to the friend as to the manner of the friend’s driving of the car and because the friend would have considered himself bound to comply with such directions and to hand over the driving if required. It followed, the insurer contended, that Riley was in charge of the car and so a driver within the meaning of the section. Gowans J rejected the argument. His Honour reasoned that:
[3][1972] VR 265.
The strength of the argument must, therefore, depend on the language in which the definition is expressed. The conclusion that the provisions of the Division are concerned primarily with actual physical drivers and not notional drivers does much to throw light on what the definition means. It is concerned not with persons who have control over and are responsible for the actions of those who are physically operating or in the physical position to operate motor cars, but with those who are in a position to make physical use of and exercise physical control over and be responsible for the harmful potentialities of motor cars, when there is no one physically operating them or in the physical position to operate them and thus responsible for their harmful potentialities. It is concerned with those who are in charge of motor cars when no one else is in charge of them; with those who are in a position to take charge without supplanting someone else who is in fact in charge. This is an understandable and logical extension of the protection afforded to injured persons envisaged by the statutory provisions, and no more is required to effectuate it.[4]
In arriving at this construction, I am influenced by the view that the provisions of the Part are concerned with physical situations and not with legal doctrines as to liability. I have not placed reliance on the fact of the frequent references in the Division to ‘the driver’ as though there could only be one such at a time for the purposes of these provisions. Nor have I placed reliance on the authorities as to the meaning of ‘driver’ or ‘in charge’ where those expressions are used in a purely criminal context (as in Doyle v Harvey,[5] Curtis v Grose,[6] Cornelius v Jones,[7] Jones v Prothero,[8] Haines v Roberts,[9] and R v Roberts[10]), although the reference in s 59(2) to certain criminal offences might afford some justification for finding support in that direction. This at least can be said, that in such cases the words used are treated as concerned with the exercise of physical acts in relation to a car or at all events the opportunity for such exercise.
My conclusion then is, for the reasons I have given, that the plaintiff was not a ‘driver’ within the meaning of s2(1) of the Act of 1967.[11]
[4]Ibid 269 (emphasis added).
[5][1923] VLR 271; 29 ALR 180.
[6][1923] VLR 276; 29 ALR 181.
[7](1935) 38 WALR 62.
[8][1952] 1 All ER 434.
[9][1953] 1 All ER 344.
[10][1965] 1 QB 85; [1964] 2 All ER 541.
[11][1972] VR 265, 269–270 (emphasis added).
Riley thus established that a person was in charge of a motor car for the purposes of the compulsory third party insurance scheme if the person were in a position to make physical use of and exercise physical control over and be responsible for the harmful potentialities of the motor car when there was no one else physically operating it or in the physical position to operate it and thus responsible for its harmful potentialities.
The test formulated in Riley was applied by the New South Wales Court of Appeal in Ricketts v Laws[12] which held that, for the purposes of the comparable New South Wales compulsory third party insurance scheme, a driving instructor sitting beside a learner driver undergoing instruction was in a position to make physical use of and exercise physical control over and so be responsible for the harmful potentialities of the car, and so was in charge of the car within the meaning of the legislation.
[12](1988) 14 NSWLR 311.
Division 1 of Part V of the Motor Car Act 1958 was replaced by the no-fault statutory scheme of compensation which was introduced by the Transport Accident Act 1986. Then, as now, ‘Driver’ was defined in s 3 of the Act in relation to a motor car as including a person who is ‘in charge of’ the motor car (although, unlike the Motor Car Act 1958, the Act did not and does not provide that ‘drive and driving have a corresponding meaning’[13]). The Act also provided that benefits or benefits of certain classes were not payable to a person who was driving or to a driver convicted of committing certain offences. In particular:
[13]Notwithstanding Interpretation of Legislation Act 1984, s 39; see Transport Accident Commissionv Treloar [1992] 1 VR 447, 449 (McGarvie and Gobbo JJ) and 463–4 (Brooking J).
a) Section 39(2) provided that benefits were not payable to a person under s 47,[14] 48,[15] 49,[16] 50[17] or 51[18] of the Act if the person were ‘driving a motor vehicle at the time of the accident’ and:
[14]Impairment benefit lump sum.
[15]Impairment benefit annuity.
[16]Total loss of earning capacity.
[17]Partial loss of earning capacity.
[18]Loss of earning capacity – non earners.
i. was convicted in respect of that driving of an offence under s 318(1) of the Crimes Act 1958;[19] or
[19]Culpable driving.
ii. was convicted of an offence under sub-section (4)(e) in relation to the accident [scil. and offence under s 80DA(6),[20] 80E(3),[21] 80EA(7),[22] or 80F(11)[23] of the Motor Car Act 1958];
[20]Hindering or obstructing the taking of a blood sample.
[21]Being a person found driving a motor car who refuses or fails to undergo a breath test when required.
[22]Being a person driving who refuses or fails to undergo a preliminary breath test when required.
[23]Being a person driving who having undergone a preliminary breath test refuses to undergo a breath test when required.
b) Section 39(3) provided that benefits were not payable to a person under s 47, 48, 49, 50 or 51 if the person were ‘driving a motor vehicle at the time of the accident’ and was convicted in respect of that driving of being under the influence of alcohol or a drug to such an extent as to be incapable of having proper control of the motor car or of having a blood alcohol concentration of 0.15 per centum or more, unless the person satisfied the Commission that it did not contribute in any way to the accident; and
c) Section 39(4) provided that benefits were not payable to a person under s 44[24] or 45:[25]
[24]Total loss of earnings.
[25]Partial loss of earnings.
i. Section 39(4)(a): If the person was ‘driving a motor vehicle at the time of the time of the accident’ and was convicted in respect of that driving of being under the influence of alcohol or other drug to such an extent as to be incapable of having proper control of the motor car or of having a blood alcohol concentration of 0.15 per centum or more, unless the person satisfied the Commission that it did not contribute in any way to the accident;
ii. Section 39(4)(b): If the person was ‘at the time of the accident, the driver of, or a passenger in, a motor vehicle’ for which the transport accident charge had not been paid unless the person satisfied the Commission that the person did not know that it had not been paid and could not reasonably be expected to have known that it had not been paid;
iii. Section 39(4)(c): If the person was ‘at the time of the accident, the driver of a motor vehicle’ and had never held a licence to drive or had held a licence to drive but at the time of the accident it was suspended or cancelled;
iv. Section 39(4)(d): If the person was ‘at the time of the accident, the driver of or a passenger in a motor vehicle’ being used for or in connexion with or in the commission of an indictable offence, stealing or attempting to steal a motor car, resisting or preventing the lawful apprehension or detention of that person or any other person or intentionally causing or attempting to case injury to that person or any other person; and
v. Section 39(4)(e): If the person was ‘at the time of the accident, the driver of a motor vehicle’ and was convicted of an offence under s 80DA(6),[26] 80E(3),[27] 80EA(7),[28] or 80F(11)[29] of the Motor Car Act 1958.
[26]Hindering or obstructing the taking of a blood sample.
[27]Being a person found driving a motor car who refuses or fails to undergo a breath test when required.
[28]Being a person driving who refuses or fails to undergo a preliminary breath test when required.
[29]Being a person driving who having undergone a preliminary breath test refuses to undergo a breath test when required.
Given that s 39(4) was enacted as part of the statutory scheme designed to replace Division 1 of Part V of the Motor Car Act 1958, and enacted against the background of judicial construction of the expression ‘in charge of’ a motor car for the purposes of Division 1 of Part V, it is I think to be inferred that Parliament intended ‘in charge of’ to have the same meaning in s 39(4) as that expression was held to have in Division 1 of Part V of the Motor Car Act 1958.[30]
[30]Barras v Aberdeen Steam Trawling and Fishing Co Ltd [1933] AC 402, 412; Hoskin v Rankin (1978) 141 CLR 182, 190–1; Pearce & Geddes, Statutory Interpretation in Australia 7th Ed, [3.43].
Section 39(4) as first enacted was later substituted by s 40 of the Act, as it is now, by s 12 of the Transport Accident (Amendment) Act 2000. The substitution was said to be for the purpose of:
‘clarify[ing] those breaches of the Road Safety Act 1986 and the Crimes Act 1958, which draw an exclusion from all benefits, those that draw an exclusion from loss of earnings benefits and those that draw a partial exclusion from loss of earnings benefits.[31]
[31]Transport Accident (Amendment) Act 2000 Explanatory Memorandum, s 12.
Nevertheless, ss 40(1)(a), (b), (c) and (d) of the Act as they are now correspond more or less precisely in terms and effect to ss 39(4)(a), (b), (c) and (d) of the Act as it was first enacted; and s 40(2) of the Act as it now is corresponds to s 39(4)(e) as it was when the Act was first enacted. There was never any suggestion of altering the operative effect of those provisions.
In those circumstances, it seems to me to follow that expressions used in s 40(1)(a) to (d) and s 40(2) were intended to have the same meaning as they did in s 39(4) of the Act as first enacted and, accordingly, that the expression ‘in charge of‘ in the definition of ‘driver’ in s 3 of the Act has the same meaning in its application to ss 40(1)(c) and (d) and 40(2) as it was held to have in Riley.
In Riley, Gowans J said that, although he did not rely on the authorities concerning the meaning of ‘driver’ and ‘in charge’ in a purely criminal context, the reference in s 59(2) of the Motor Car Act 1958 to certain criminal offences might afford some justification ‘for finding support in that direction’. With respect, I agree. In my view, it is relevant that there was a close connection between the exclusion of benefits provided for in s 39(4), as first enacted, and offences under the Motor Car Act 1958 that could be committed by a person who was ‘in charge of a motor vehicle’, and, equally, it is relevant that there is now a close connection between the exclusion of benefits provided for in s 40(1) of the Act and offences under the Road Safety Act 1986 that may be committed by a person who is ‘in charge of’ a motor vehicle.
To say so is not to overlook that s 40(1)(a) of the Act speaks only of a person ‘driving’, as opposed to a person being ‘in charge of’ a motor vehicle. Nor is it to deny that, on one view of the Appeal Division’s decision in Transport Accident Commission v Treloar,[32] the absence of reference to a person being ‘in charge of’ might be taken to imply that the exclusion for which s 40(1)(a) provides does not extend to a person convicted of being ‘in charge of’ a motor vehicle as opposed to ‘driving it’. But I reject the implication. Why should it be that Parliament wished to deprive a person of benefits if convicted of actually driving under the disabling influence of alcohol at the time of the accident and yet not intend also deprive a person of benefits if convicted of being otherwise in charge of a motor vehicle while under the disabling influence of alcohol at the time of the relevant accident? Either condition has the potential to be causative of the accident which occurred.
[32][1992] 1 VR 447, esp 463–4 (Brooking J).
Section 39(4)(a) as it was when first enacted, and s 40(1)(a) as it is now, refer to an offence of driving whilst having a blood alcohol concentration so great as to be incapable of having proper control of the vehicle. At the time of first enactment of s 39(4)(a), the offence was defined in s 80B of the Motor Car Act 1958 in terms of ‘any person who drives a motor car’. As it is now, the offence is framed in s 49(1)(a) of the Road Safety Act 1986 in terms of a person being guilty of an offence if he or she:
drives a motor vehicle or is in charge of a motor vehicle while under the influence of intoxicating liquor or of any drug to such an extent as to be incapable of having proper control of the motor vehicle.
The same applies to s 39(4)(e) of the Transport Accident Act 1986 as first enacted, which referred to a person ‘driving’ at the time of the relevant accident who was convicted of an offence under s 80E(3), 80EA(7), or 80F(11) of the Motor Car Act 1958 (each of which offences was directed equally to a person driving or in charge of a motor car), and the corresponding s 40(2) of Transport Accident Act 1986, as it is now, which refers to a person ‘driving’ a motor vehicle at the time of the relevant accident who in relation to that driving is convicted of an offence under s 49(1)(ba), (c), (ca), (d), (e), (ea) or (eb) (each of which offences is framed in terms of a person who ‘drives a motor vehicle or is in charge of a motor vehicle’).
The meaning of ‘being in charge of’ in the context of s 49(1)(b) of the Road Safety Act 1986 was considered by Southwell J in Davies v Waldron.[33] In that case the defendant had climbed into the driver’s seat of his car and started the engine just as a friend warned him of the presence of police close by. A breath test was administered and he was found to have a reading of .130 per cent. Southwell J held that:
giving the words ‘in charge of’ … their ordinary meaning, it is clear that the defendant was ‘in charge’: it was his car, he had the keys in his possession, he sat in the driver’s seat and he started the engine. Apart from the question of intoxication or blood alcohol level, he had the right and opportunity to control the car: no other person had the right to interfere with that control (apart from those entitled to prevent offences against the Act).[34]
[33][1989] VR 449.
[34]Ibid 455.
Southwell J added that he would have reached that conclusion without recourse to s 48(1)(b) of the Road Safety Act 1986. It provided that:
(b)a person is not to be taken to be in charge of a motor vehicle unless that person is attempting to start or drive the motor vehicle or unless there are reasonable grounds for the belief that that person intends to start or drive the motor vehicle.
His Honour noted too that s 48(1)(b) reinforced his view of the meaning of ‘in charge of [a motor vehicle]’ because it showed that Parliament had in mind that some action less than an attempt to drive would or might suffice to lead to a finding that a person was ‘in charge’ of a motor vehicle.[35]
[35]Ibid.
The expression ‘in charge of’ is now defined in s 3AAA of the Road Safety Act 1986, which was inserted in 2001, as follows:
3AA Circumstances in which person is to be taken to be in charge of a motor vehicle
(1)Without limiting the circumstances in which a person is in charge of a motor vehicle, the following persons are to be taken to be in charge of a motor vehicle for the purposes of this Act—
(a)a person who is attempting to start or drive the motor vehicle;
(b)a person with respect to whom there are reasonable grounds for the belief that he or she intends to start or drive the motor vehicle;
(c)a commercial driving instructor while the person whom he or she is teaching to drive is driving or in charge of the vehicle;
(d)an accompanying licensed driver while the person whom he or she is sitting beside is driving or in charge of the vehicle.
(2)Subsection (1)(c) or (d) does not affect any liability of the person being taught or accompanied for any offence committed by that person while driving or being in charge of the motor vehicle.
3ABCircumstances in which person is to be taken to be driving a motor vehicle
Without limiting the circumstances in which a person is driving a motor vehicle, a person who is steering a motor vehicle which is being towed by another motor vehicle is to be taken to be driving the towed motor vehicle for the purposes this Act, whether or not the towed motor vehicle has any other
means of propulsion and whether or not the person steering it has any control over its means of propulsion.
3AC Circumstances in which person is taken to be driving a trailer
Without limiting the circumstances in which a person is driving a trailer, a person who is driving a motor vehicle to which a trailer is attached is to be taken to be driving the trailer for the purposes of this Act.
It is also to be noted that, since 2004, the definition of ‘driver’ in s 3 of the Road Safety Act 1986 has included to be in control of a vehicle; although of course there is probably not a lot about the proper construction of s 40(1)(c) of the Transport Accident Act which can be gleaned from an amendment to another provision made years after its enactment.[36]
[36]Cf Grain Elevators Board (Vic) v President, Councillors and Ratepayers of the Shire of Dunmunkle (1946) 73 CLR 70.
Ultimately, it is unnecessary to reach a concluded view as to the significance of the interpretation of ‘in charge of’ in the criminal context. For present purposes, it suffices to say that, to the extent it is permissible to look to the meaning of ‘in charge of’ in the criminal context, it supports the construction which Gowans J put on it in Riley.
All things considered, it appears to me that, in the context of s 40(1)(c)(ii) of the Act, the expression ‘in charge of’ is concerned with physical acts in relation to a motor vehicle or at all events the immediate opportunity for such exercise.
The meaning of ‘in charge of’
Once that is understood, it will be seen that to interpret s 40(1)(c)(ii) as capable of reaching to a person in charge of a motor vehicle not being driven need not lead to the kind of incongruous, capricious or irrational consequences[37] which the judge feared it might. Rather, just as the question of whether a motor vehicle is involved in a transport accident is a question of fact and degree, the question of whether a person is in charge of a motor vehicle is one of fact and degree: a question of whether the person’s physical acts in relation to the motor vehicle, or at all events the immediate opportunity for the exercise of physical control over the motor vehicle, and thus to be responsible for its harmful potentialities, are sufficient to conclude that, according to ordinary acceptation, the person is in charge of the motor vehicle.
[37]Cooper Brookes (Wollongong) v Federal Commissioner of Taxation (1981) 147 CLR 297, 305 (Gibbs CJ) and 311 (Mason and Wilson JJ).
So, for example, if a person like the defendant in Davies v Waldron[38] climbs into the driver’s seat of a motor vehicle and starts the engine with the intention of driving it, whereupon another car runs into it, one would say that, according to ordinary acceptation, the person is sufficiently possessed of the immediate opportunity to exercise physical control over the motor vehicle, and thus to be responsible for its harmful potentialities, as to be in charge of it at the point of impact. It does not matter that the vehicle is hit by the other car and disabled before it can be driven. As Southwell J said in Davies v Waldron, giving the words ‘in charge of’ their ordinary meaning, the person is in charge of the motor vehicle because he has the keys in his possession, is sitting in the driver’s seat and starts the engine. He has the right and opportunity physically to control the vehicle and no other person has the right to interfere with that control.
[38][1989] VR 449.
Similarly, if a person driving a motor vehicle pulls onto the side of the road and stops in order to take a mobile telephone call, whereupon a car runs into the motor vehicle, one would say that, according to ordinary acceptation, the person is sufficiently possessed of the immediate opportunity to exercise physical control over the motor vehicle, and thus to be responsible for its harmful potentialities, as to be in charge of it at the point of impact.
On the other hand, if a person driving a motor vehicle stops and parks it, and walks away from it before he or she is hit by a passing car, then, depending on the time and distance of separation of the person from the parked motor vehicle, one would not ordinarily conceive of that person as being sufficiently possessed of the immediate opportunity to exercise physical control over the motor vehicle, or therefore responsible for its harmful potentialities, as to be in charge of it when he or she is hit by the passing car.
Then, however, to take another kind of example, if a motor mechanic with a cancelled driver’s licence is working on a motor vehicle on the forecourt of a garage, and is injured as the result of a car leaving the road and running into the motor vehicle on which he is working, the question of whether the mechanic is in charge of the motor vehicle at the time of the accident is likely to turn on considerations such as who put the motor vehicle in position; who was intended to move it from that position; what procedure the mechanic intended to carry out on the motor vehicle; and whether there was someone else present who had the immediate opportunity to exercise physical control over the motor vehicle – in particular by starting and driving it insofar as that might be necessary or contemplated for the purposes of the repair process – and thereby to be responsible for its harmful potentialities.[39]
[39]Cf Insurance Commissioner of State Motor Car Insurance Office v Pullin (1971) 45 ALJR 176.
Finally then, to take a case like the present, where a person who has been driving a motor vehicle runs out of petrol and so gets out and pushes the motor vehicle along the road or the edge of it, one would ordinarily say that, although the motor vehicle is incapable of moving under its own power, the person is sufficiently possessed of the immediate opportunity to exercise physical control over the movement of it, and thus be responsible for its harmful potentialities, as according to ordinary acceptation to be viewed as being in charge of it. The position is comparable to a cyclist who, having come to a hill finds the gradient too steep to pedal up, gets off and walks his bicycle up. According to ordinary acceptation, such a person is viewed as a cyclist in charge of his bicycle.[40]
[40]Harper and Anor v Associated Newspapers Ltd (1927) 43 TLR 330, 332.
Contrastingly, if after a motor vehicle runs out of petrol, a good Samaritan bystander gets behind the vehicle and pushes it while the driver remains at the wheel, or if the driver gets out and pushes and the bystander helps the driver push
the vehicle, the driver remains the person in charge of the motor vehicle and the bystander is not in charge because he is subject to the direction and control of the driver and cannot take charge without supplanting the driver.
Conclusion
For those reasons, I would allow the application; treat the appeal as instituted and heard instanter and allowed; and set aside the judgment below. In lieu thereof, I would order that the appeal from VCAT be dismissed.
HANSEN JA:
This is an application for leave to appeal from orders made by a judge in the Trial Division.[41] The judge allowed an appeal on a question of law from a decision of the Victorian Civil and Administrative Tribunal (‘the Tribunal’).[42] The Tribunal had affirmed the decision of the Transport Accident Commission (‘the Commission’) that the respondent, Sean Kymantas, was not entitled to ‘income benefits’ under s 44 of the Transport Accident Act 1986 (‘the Act’).
[41]Kymantas v TAC [2010] VSC 634 (‘Reasons’).
[42]In Proceeding No G793/2009.
The Act
The Act contains a scheme for the payment of compensation to persons injured as a result of a transport accident in Victoria.[43] Where the injured person is an ‘earner’[44] the Commission is liable to pay a weekly payment in respect of loss of earnings for the first 18 months after the accident.[45] However, in certain circumstances – provided for in ss 39–40A – the liability to pay is excluded or the amount payable is reduced or may be withheld. Relevantly for the present case, s 40 provides:
[43]Part 3, s 35.
[44]As defined in s 3.
[45]As provided in s 44 (total loss of earnings) and s 45 (partial loss of earnings).
40Circumstances 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—
(a) …
(b) …
(c)the person was, at the time of the transport accident, the driver of a motor vehicle and—
(i)had never held a licence to drive a motor vehicle of that class under the Road Safety Act 1986 … or
(ii)held or had held such a licence but, at the time of the transport accident, it was suspended or had been cancelled; or
(iii) …
The expressions ‘transport accident’ and ‘driver’ are defined in s 3 as follows:
· transport accident means an incident directly caused by the driving of a motor car or motor vehicle … ;
· driver in relation to a motor car or motor vehicle, includes a person who is in charge of the motor car or motor vehicle.
The expression ‘in charge of’ was not defined. In fact, it has a history of usage in legislation relating to motor vehicles, as to which counsel referred the Court to cases in the context of driving offences. As appears below, the Tribunal found, and it is accepted, that the respondent was ‘in charge of’ his motor vehicle at the time. Hence it is not necessary to deal with the authorities as to the scope and application of the phrase. It is sufficient to note that the question is one of fact and degree in the particular context.
Facts and background
On 8 January 2009 the respondent’s driver’s licence was cancelled for 18 months.
On 3 April 2009 the respondent drove his motor vehicle on the Princes Freeway. He was driving to his home in Geelong when the vehicle ran out of petrol and came to a stop in the emergency lane. The respondent stepped out of his vehicle on the driver’s side and with both hands attempted to push his vehicle towards a nearby petrol station.
At this point, the open driver’s door on the respondent’s vehicle and the respondent himself were struck by a motor vehicle being driven to Geelong. As a result, the respondent suffered injury and a resultant loss of earnings.
The respondent claimed compensation under the Act for injuries sustained in the accident. The Commission accepted liability to pay compensation for medical and like expenses,[46] but rejected the claim for compensation for loss of earnings on the basis that it was precluded by s 40(1)(c)(ii).
[46]Pursuant to s 60 of the Act.
The respondent sought review of the decision in the Tribunal.[47] The Tribunal affirmed the Commission’s decision. On appeal on a question of law – in effect whether the Tribunal erred in its construction of s 40(1)(c)(ii) – the judge reversed the decision of the Tribunal. His Honour concluded that s 40(1)(c)(ii) did not operate to disentitle the respondent from compensation for loss of earnings.
[47]Pursuant to s 77 of the Act.
For the reasons that follow, leave to appeal should be granted and the appeal allowed.
The case in the Tribunal
The Commission submitted that in light of the extended definition of ‘driver’ in s 3, the critical issue was whether the respondent was in charge of his motor
vehicle at the time of the accident. It was submitted that on the facts, he was. That being so, s 40(1)(c)(ii) applied on its terms to preclude the payment of compensation.
The respondent submitted that:
(a)he was not ‘in charge of’ his vehicle and thus was not a ‘driver’ as defined by s 3. That was because the ‘in charge of’ element was introduced to deal with the case where the motor vehicle is in motion – as by steering while being towed or pushed – but there is no-one actually driving it, as to which see Tink v Francis.[48]
(b)alternatively, even if he was a ‘driver’, s 40(1)(c)(ii) did not apply to disentitle him because, on the proper construction of that provision, the exclusion only applied where the motor vehicle in respect of which the claimant was a ‘driver’ was the motor vehicle the driving of which gave rise to the incident which constituted the ‘transport accident’. That is, the incident must be directly caused by the driving of the claimant’s vehicle. It was in that sense that the expression ‘driver of a motor vehicle’ was to be understood. In the present case, the accident was caused by the driving of the other vehicle, rather than the claimant’s vehicle; hence the exclusion did not apply.
[48][1983] 2 VR 17.
In the course of the Commission’s submissions in reply, Deputy President Macnamara (who constituted the Tribunal) queried the potential width of operation of the ‘in charge of’ element in the definition of ’driver’, and for the purpose of exploring the possible breadth of application of the provision posited some factual situations involving an unlicensed driver. Essentially they involved a situation where a person who had been driving a vehicle had stopped the vehicle, alighted from it and was some distance away when hit by another motor vehicle; was he denied compensation when he was effectively a pedestrian who could only fit the definition of ‘driver’ in the technical sense that he remained in charge of his car? In answer to the Deputy President, counsel submitted that the question of whether a person was ‘in charge of’ a vehicle was one of fact and degree and that the exclusion would not apply in the posited circumstances because the person’s vehicle would not have been ‘involved in’ or ‘connected with’ the accident. He submitted that it was ‘necessarily implicit‘ in s 40(1)(c)(ii) that the motor vehicle of which the respondent was the driver was involved in the transport accident. In the present case the respondent was in charge of his vehicle even if he had not been able to move it, and the exclusion applied.
The respondent’s counsel responded that the reference to ‘involved’ meant that the Commission was submitting that it was necessary to read s 40(1)(c)(ii) as though the words ‘which was involved in the transport accident’ appeared after ‘motor vehicle’. This, counsel suggested, was to avoid absurdity of results in the application of the provision.
The Deputy President held that the incorporation of the phrase ‘in charge of’ into the definition of ‘driver’ was intended to broaden the class of persons who could be regarded as a ‘driver’. That view was fortified by a consideration of the ‘excluder’ provisions in other subsections in s 40, which fix upon ‘driving’ and ‘driver’ as the basis for their operation. He observed that this structure ‘results not from the terms of the original Act but from a variety of amendments that have been made in recent years’. The Deputy President then held that even though the respondent had not been able to move his vehicle, he was in charge of it at the time of the accident and hence a ‘driver’ as defined by s 3. He also held that the respondent was not ‘driving’ his vehicle, referring in that respect to Tink v Francis.[49] These conclusions were not challenged either before the judge or in this Court.
[49][1983] 2 VR 17.
The Deputy President concluded as follows:
31.Even although it was the driving of Ms Thompson’s vehicle rather than the Statesman which led to this incident’s falling within the definition of ‘transport accident’ Mr Kymantas was a ‘driver’ within the literal words of the Transport Accident Act in general under Section 40 in particular. Given that he was the driver of a vehicle which was involved in the incident he was within the excluding provision of Section 40.
32.The present situation appears to be directly within the terms of the excluder provision (section 40(c)(ii) of the Transport Accident Act) relied on by the Commission. Whether the car was moving or not does not appear to be a vital issue in determining whether or not Mr Kymantas was in charge of it (see Kunze case). He had control of the car in every way. He was in physical possession of it both because he was trying to move the car and on his own account held the ignition key. Had Parliament intended this exclusion to turn on whether or not an unlicensed claimant for compensation was ‘driving’ it could have said so.
The appeal to the Trial Division
The right of appeal to the Trial Division was on a question of law, by leave. The Notice of Appeal identified the question of law as follows:
Whether, on a proper construction, Section 40(1)(c) of the Transport Accident Act 1986 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 licence 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 his motor vehicle, but was caused by the driving of another vehicle that the person was not in charge of.
As mentioned, the respondent did not challenge the finding that he was ‘in charge of’ his vehicle and thus a ‘driver’ as defined by s 3.
Counsel for the Commission submitted that the exclusion required for its application the satisfaction of only three conditions, each of which was satisfied. First, that the respondent was injured as a result of the transport accident. Secondly, that at the time of the transport accident the respondent was the ‘driver’ of a motor vehicle. Thirdly, that at that time his licence had been cancelled.
Again, as at the Tribunal, in the course of his submissions the matter of the possible breadth of operation of the exclusion arose, and the Commission’s counsel referred to the respondent’s vehicle having been ‘involved in’ or ‘connected with’ the accident. The judge queried why such a limitation ought be implied. Counsel ultimately submitted[50] that if such a limitation was not implied, the notion of being ‘in charge of’ the vehicle could be ‘read down’ to the three conditions referred to above. He submitted that on any view of the facts, the respondent was in charge of his vehicle, and thus caught by the exclusion.
[50]Transcript (11 November 2010) 67 at lines 15-19, 71 at lines 17-24.
The judge concluded that s 40(1)(c) did not operate to disentitle the respondent. His Honour considered that the case was answered by deciding what was the relevant transport accident. In this sense, it was the driving of the other vehicle that directly caused the accident.[51] In no sense did the respondent’s driving of a motor vehicle cause the collision.[52] He further concluded that there was nothing in s 40(1)(c)(ii) that ‘would compel the notion of involvement of vehicles when the sub-paragraph is concerned with driving and drivers’.[53] He continued:
It was submitted on behalf of the [Commission] that the submission on behalf of the [respondent] sought to convert the word ‘driver’ in s 40(1)(c) to the word ‘driving’. I do not accept that is so. What the [respondent’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.[54]
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.[55]
[51]Reasons, [19].
[52]Reasons, [22].
[53]Reasons, [25].
[54]Reasons, [26].
[55]Reasons, [27].
His Honour then set out the question of law in the notice of appeal, said that he would grant leave and allow the appeal, and concluded:
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.[56]
Submissions in the Court of Appeal
[56]Reasons, [31].
Commission
As before the judge, counsel submitted that, by its terms, s 40(1)(c)(ii) applies if three conditions are met, they being the conditions referred to at [70] above. He submitted that the judge erred by in effect introducing words of limitation to the operation of the section, namely that the exclusion would not apply where the transport accident was caused solely by the driving of another vehicle. He submitted that there is nothing in the text or context of the provision to support such a limitation or implication. The provision focused attention on the three stated conditions, but not on how the accident occurred or whose driving solely caused it. Counsel submitted that the Act draws a distinction between ‘driving’ a vehicle and being the ‘driver’ of that vehicle. While some provisions excluding liability only operate where the claimant was ‘driving’ a vehicle,[57] others operate if the claimant was a ‘driver’ of a motor vehicle.[58] The distinction must be taken to have been deliberate. Counsel relied on the Deputy President’s observation that if Parliament had intended the exclusion to apply only where the unlicensed claimant was actually driving, it could have said so. A further consideration militating against the limitation was that it would require the Commission to investigate the accident circumstances in order to reach an opinion on questions of compensation. Finally, counsel stated that the Commission no longer contended that the provision was subject to a limitation that the claimant’s motor vehicle was involved in or connected with the transport accident.
[57]For example ss 39(3), 40(1)(a), 40(2), 40(3), 40(4) which effectively exclude liability to pay compensation where the claimant was driving and has been convicted of certain specified offence in respect of that driving.
[58]For example ss 40(1)(b), (c) and (d), and s 41.
Respondent
Counsel submitted that the expression ‘driver of a motor vehicle’ in s 40(1)(c) should be read as applying to a driver of a motor vehicle by reference to which the definition of ‘transport accident’ – and thus the entitlement to compensation – may be established. Otherwise, the breadth of the word ‘driver’ would have the effect of disentitling from compensation persons who the legislature could not have intended to disentitle, contrary to the Act’s objective of providing ‘suitable and just compensation’.[59] For example, a person whose licence has been disqualified might be struck by another car while removing sunglasses from the glove-box of his or her own car. Similarly, such a person might be struck ‘effectively in their capacity as a pedestrian’ for example where the person is in charge of his or her vehicle – in the sense that he or she lawfully possesses it and has not put it in anybody else’s control – yet is struck while walking some distance from the vehicle. In these circumstances, the fact that the person was a ‘driver’ (on the extended definition), and unlicensed at the time of the incident, was incidental to the accident, and the legislature could not have intended to exclude compensation in such circumstances.
[59]Transport Accident Act1986, s 8(b).
Counsel submitted further that the use of the word ‘driver’ (rather than ‘driving’) in s 40(1)(c) did not assist the Commission’s argument, because when the provisions were originally enacted, a ‘transport accident’ was defined as ‘an incident caused by, or arising out of, the use of a motor car’.[60] On such a broad definition of a ‘transport accident’, a person could have an entitlement to compensation without a vehicle being driven by anybody. For example, the respondent would have had an entitlement to compensation if he rolled his ankle while getting out of his car. In that context, it was understandable why the legislature might have thought it necessary to disentitle certain persons who were not driving but were ‘in charge of’ a vehicle. The fact that the legislature has since narrowed the scope of what constitutes a transport accident to an incident ‘directly caused by the driving’ of a motor vehicle may have reduced the extent to which the extended definition of the word ‘driver’ in s 40(1)(c) excludes compensation, but it did not gainsay the need, past and present, for the disentitlement to apply only to a person ‘in charge of’ a vehicle by reference to which the entitlement might be said to arise.
[60]Transport Accident Act 1986, No 111 of 1986, s 3(1).
Counsel also submitted that the Commission ought be bound by the argument put to the Tribunal and to the Trial Division, namely that the exclusion provision was subject to a limitation that the motor vehicle of which the claimant was the driver be ‘involved in’ or ‘connected with’ the transport accident. He submitted that the argument had allayed the Deputy President’s concerns as to the possible operational breadth of the expression ‘in charge of’. According to counsel, the Commission had submitted that the exclusion would only apply if the respondent’s motor vehicle were ‘involved in’ or ‘connected with’ the transport accident. Counsel said that the Deputy President was asked to choose between two positions, namely whether the respondent’s motor vehicle was (1) ‘connected with’ or ‘involved in’ the transport accident or (2) was a vehicle by reference to which the definition of transport accident was satisfied. It was said that the Deputy President accepted the Commission’s submission as to the breadth of the expression ‘in charge of’ and as to the limitation on the otherwise broad reach of s 40(1)(c)(ii). That was the dispute that went on appeal; the Commission repeated its argument, and only late in the hearing before the judge presented the alternative argument based on the three elements of the section.
Counsel submitted that the respondent will suffer prejudice if the Commission is permitted to raise (for the first time) an argument that a ‘control’ or ‘limiting factor’ on the reach of s 40(1)(c) may be found in the notion of what it means to be ‘in charge of’ a motor vehicle, rather than submitting either (a) that such a limiting factor is found by reference to the involvement or not of the vehicle in the transport accident (as submitted below); or (b) that in truth there is no limiting factor. In the end, however, counsel did not object to the Commission being heard on their argument.
Commission’s reply
As to the respondent’s complaint about the unfairness of the Commission raising a new argument on appeal, counsel submitted that no prejudice arose. That was because the Tribunal’s finding – that the respondent was in charge of his vehicle, and hence a ‘driver’ – was not based on counsel’s statement about the limiting factor of ‘involvement’ or ‘connection’. Rather, the Tribunal made a factual finding which was not challenged. Further, in the Trial Division, the Commission specifically argued in the alternative that no limitation should be read into s 40(1)(c)(ii), and the respondent did not object to such argument being raised. In these circumstances, counsel submitted that for the purpose of the appeal, it was not necessary to define the limits of the expression ‘in charge of’. That was because that issue had already been resolved on the facts of the instant case, in the sense that the respondent was found to be ‘in charge of’ his vehicle. Rather, the question for this Court was purely one of statutory construction, namely whether the judge below erred in holding that the exclusion in s 40(1)(c) did not apply in circumstances where the relevant transport accident was not caused by the respondent’s driving.
Decision
It is convenient to deal first with the respondent’s complaint that the Commission unfairly sought to raise a new argument in this Court. The complaint has no merit.
In the first instance, before the Tribunal the case opened by counsel for the Commission was that on the facts the respondent was ‘in charge of’ and thus the driver of his motor vehicle, and the requirements of the exclusion provision were satisfied. It was only later, following the respondent’s submission, that the ‘involved in’ or ‘connected with’ argument was introduced. But these statements were made in the context of counsel seeking to answer concerns raised by the Tribunal that the potential breadth of the term ‘driver’ could result in a claimant being excluded from compensation where the claimant was injured in circumstances that really had nothing to do with the claimant being the driver of a vehicle; for example, a claimant who is a driver as defined but has left his or her car and is struck while walking some distance away. In effect, it was the postulating of extreme examples which led counsel to make the statements that he did. But the statements had nothing to do with the facts of the case before the Tribunal. Moreover, there could never have been any doubt that the respondent’s car was ‘connected with’ or ‘involved in’ the accident, as its open door was struck by the passing car. Furthermore, it is axiomatic that for the s 40(1)(c)(ii) exclusion to apply, the respondent’s motor vehicle must have had some relevant involvement in the occurrence of the transport accident, otherwise it was irrelevant to the circumstance that produced the injury. Viewed in that context, it can be seen that counsel’s statements related to a hypothetical factual scenario.
Further, in the light of the way in which the Commission put its case, the Tribunal was not asked to choose between the two positions stated by the respondent’s counsel. That was not to state the Commission’s submissions correctly, for the reasons stated above.
Furthermore, it is not necessarily correct that the Deputy President accepted the Commission’s submission as to the ‘limitation’ to s 40(1)(c)(ii). All that the Deputy President said in his reasons quoted above was that the respondent’s motor vehicle was involved in the incident, which was in itself no more than a statement of the obvious. He said nothing as to a limitation, implied or otherwise, on the operation of the provision.
In short then, the statements did not qualify or detract from the Commission’s central argument which was, and always has been, that on the facts of the instant case (rather than on some hypothetical case) the respondent satisfied the three factual matters referred to in the section, and hence was caught by the exclusion. In the Tribunal, the real issue was the second of those matters, namely whether the respondent was ‘in charge of’ his car and hence a driver. That was a question of fact, which was resolved adversely to the respondent, but the answer was logically independent of any statement by counsel as to the need for the respondent’s car to be involved in the accident.
Further, I do not accept that the Commission is seeking to raise for the first time an argument that the limits of s 40(1)(c) are to be found in the notion of what it means to be ‘in charge of’ a motor vehicle. On the contrary, that issue was at the heart of the Commission’s case in the Tribunal and in the Trial Division. In short, the Commission submitted that whatever the outer limits of the provision might be, on the facts of the instant case the respondent was ‘in charge of’ his vehicle and thus within the exclusion. Far from being a new argument, the central focus of the Commission’s case has always been that the limits of s 40(1)(c) are defined by the three criteria referred to earlier, and that on the facts the respondent falls within the exclusion. It follows that there is no unfairness in the way the Commission put its case in this Court.
This leads logically to consideration of the question of law before this Court.
The notice of appeal states three questions of law, but counsel did not refer to them in terms, and it is unnecessary to set them out. I merely note that the third question, which concerned the adequacy of the judge’s reasons, was not pressed, while counsel ultimately treated the first two questions as raising for consideration whether the judge below erred in his interpretation of s 40(1)(c).
In my opinion the judge did err. The reason can be shortly stated. First, save for the respondent’s submission (accepted by the judge), the requirements upon satisfaction of which s 40(1)(c)(ii) depends for its application, were satisfied. That is, on the evidence and findings of the Tribunal, the respondent was injured in a transport accident, at the time he was the driver of a motor vehicle, and his licence to drive was cancelled.
The question is whether, read in context, the phrase ‘the driver of a motor vehicle’ should be read as referring to the motor vehicle the driving of which directly caused the incident constituting the transport accident. Several factors indicate that the phrase should not be so read.
In the first place, such a reading is neither open nor required on the plain meaning of the text. That is, the text refers to ‘a’ motor vehicle of which the injured person was ‘the driver’, the use of that phrase picking up the extended meaning of ‘driver’. No such extended meaning would be necessary if the phrase ‘the driver of a motor vehicle’ was intended to mean the motor vehicle the driving of which directly caused the transport accident. Further, the use of the language ‘a motor vehicle’ emphasises that the concentration is on the motor vehicle of which the respondent is the driver (if necessary by reason of being ‘in charge of’).
Furthermore, to read the provision as the judge held requires words to be read into it, either by implication or on the basis that the intended meaning of the provision is clear to the extent that would permit such a course. It is plain that the actual language does not state the interpretation adopted by the judge. Nor, in my opinion, does it appear by necessary intendment from the provision or the context provided by the Act as a whole. So, what is the basis of the interpretation? In considering this it is useful to bear in mind the consequence of the interpretation favoured by the judge. It is as though, by implication or understanding from context and purpose, sub-paragraph (c) is to be read as commencing with the words ‘except in the circumstance where the transport accident was caused solely by the driving of another motor vehicle … ‘. At least that is the Commissioner’s suggestion, and it seems realistic.
The judge did not really grapple with this difficulty. He seemed, with respect, to be affected by the consideration of which ‘driving’ directly caused the accident. He distinguished that from ‘the involvement of vehicles’. He concluded by referring to the transport accident having to be ‘caused solely by the driving of a particular motor vehicle’, in which situation the person who is the driver of another vehicle ‘is not excluded even though he may have been within the exclusionary provisions’. With respect, this reasoning was impermissible.
In short, the judge has arrived at an interpretation of the exclusion that he considered accorded with its sense or purpose. But in doing so he has disregarded, and indeed overridden, what I consider to be the plain text and structure of the provision. In addition he has added a notion of ‘sole’ cause which is not the same as ‘directly caused’; it seems self evident that certain driving may directly cause an accident without it being the sole cause. To this extent the judge misdirected himself as to the language and meaning of the statute. Moreover, there is, as the Commission submitted, good reason to suppose that Parliament did not intend to postulate a requirement of ‘sole’ cause with the consequent requirement of causative investigation and assessment.
Furthermore, and contrary to the respondent’s submission, there is good reason why Parliament would have intended sub-paragraph (c) to operate according to its terms. Just as the respondent relied on the object of the Act being to provide ‘suitable and just compensation’, the Commission pointed out that another object was to reduce the cost to the Victorian community of compensation for transport accidents.[61] Apart from that, it is obviously in the interests of the community that persons whose licence to drive has been cancelled not be driving on the highway, and a provision such as the exclusion is a justifiable policy decision in aid of encouraging such persons not to drive. It also strikes a balance, as the exclusion is not of all recompense but is limited to loss of earnings.
[61]Transport Accident Commission Act 1986, s 8(a).
Hence, it is no answer, or an indicator of legislative intention, that the sustaining of injury was ‘incidental’ to the occurrence of the transport accident. This is consistent with the rest of s 40.
In my view, s 40(1)(c)(ii), on the plain meaning of its terms, operated to exclude the respondent’s claim for compensation for loss of earnings. The Tribunal was correct. The appeal to the Trial Division should have been dismissed.
I would therefore set aside the orders of the judge, and in lieu thereof order that the appeal to the Trial Division be dismissed. The parties are agreed that there be no order as to the costs of the appeal to the Trial Division and that the Commission pay the respondent’s costs of the appeal to this Court as between solicitor and client, such costs to include the costs of the engagement of senior counsel.
KYROU AJA:
I have had the benefit of reading the judgments of Nettle and Hansen JJA and gratefully adopt their Honours’ statements of the facts, the relevant legislation, the history of the proceeding and the issues in the appeal.
For the reasons that follow, I would grant leave to appeal and dismiss the appeal.
The decision of the Victorian Civil and Administrative Tribunal (‘VCAT’)[62] involved the following findings that were not challenged in this Court:
[62]Kymantas v Transport Accident Commission [2010] VCAT 436 (14 April 2010) (‘VCAT Reasons’).
(a) Mr Kymantas was injured as a result of a transport accident and was entitled to compensation for loss of earnings under s 44 of the Transport Accident Act 1986 (‘Act’) unless he fell within the exclusion in s 40(1)(c)(ii) of the Act.[63]
[63]VCAT Reasons, [8].
(b) The expression ‘a person who is in charge of the … motor vehicle’ in the definition of ‘driver’ in s 3(1) of the Act has a very wide meaning and encompasses a variety of circumstances in which an owner of a vehicle exerts control over the vehicle, including where the vehicle is not in motion.[64]
[64]VCAT Reasons, [26], [32].
(c) At the time that Mr Kymantas was injured when Ms Thompson’s vehicle collided with Mr Kymantas’s stationary vehicle on the side of the road, he was ‘in charge of’ his vehicle and therefore came within the definition of ‘driver’, but he was not ‘driving’ his vehicle.[65]
[65]VCAT Reasons, [29], [31].
(d) The ‘driving of a motor vehicle’ which ‘directly caused’ the incident that gave rise to a ‘transport accident’ within the meaning of that term in s 3(1) of the Act was the driving of Ms Thompson’s vehicle.[66]
[66]VCAT Reasons, [29], [31].
(e) As Mr Kymantas was not driving his vehicle at the time of the collision with Ms Thompson’s vehicle, he was not engaged in any conduct in relation to his vehicle that was capable of satisfying the definition of ‘transport accident’.[67]
(f) At the time of the transport accident, Mr Kymantas was the ‘driver’ of his vehicle for the purposes of s 40(1)(c)(ii) of the Act solely by virtue of the extended definition of ‘driver’ in s 3(1) of the Act, that is, because he was ‘in charge of’ his vehicle.[68]
(g) At the time of the transport accident, Mr Kymantas’s licence was cancelled.[69]
[67]VCAT Reasons, [29], [31].
[68]VCAT Reasons, [29], [31]. The date of cancellation is erroneously stated to be 9 April 2009 instead of 8 January 2009.
[69]VCAT Reasons, [2].
The effect of the applicant’s construction of s 40(1)(c)(ii) of the Act would be that an injured person whose conduct was sufficient to render him or her ‘in charge of’ a vehicle, but who was not driving the vehicle and therefore did not give rise to a transport accident, would not be entitled to compensation under s 44 of the Act, notwithstanding that the driving of another vehicle by another person was solely responsible for causing the transport accident.
The applicant’s interpretation would give a very wide scope to s 40(1)(c)(ii) because of the broad meaning of the expression ‘in charge of’ a vehicle. That interpretation would encompass an owner of a vehicle who was proximate to his or her vehicle and was asserting control over it at the time of a transport accident, but who had no intention of placing the vehicle in motion and thus enabling it to cause a transport accident at that time.[70] An example is a disqualified driver who, when his or her stolen vehicle is found abandoned and damaged nearby, walks to the vehicle and is injured by another vehicle as he or she stands next to his or her vehicle and turns on the ignition to check whether the engine was damaged, without having any intention of moving the vehicle. It is difficult to see how the applicant’s interpretation would further one of the key objects of the Act, namely, ‘to provide, in the most socially and economically appropriate manner, suitable and just compensation in respect of persons injured or who die as a result of transport accidents’.[71]
[70]VCAT Reasons, [15], [29].
[71]Act, s 8(b).
In my opinion, such an interpretation should not be adopted. There is an alternative interpretation of s 40(1)(c)(ii) which is more consonant with the text, context and objects of the Act and which avoids absurd results. That interpretation is that s 40(1)(c)(ii) applies only to a person whose conduct in relation to his or her vehicle satisfies the definition of ‘transport accident’, that is, by that person driving the vehicle and directly causing the incident – in the sense of being a direct cause of the incident – which gives rise to the injury.
The interpretation that I have adopted is consistent with the text of s 40(1)(c)(ii) because of the critical role of the expression ‘transport accident’ in that sub-section. That expression appears at the commencement of s 40(1), in para (c) of that section and in sub-para (ii) of para (c). I reject the applicant’s contention that the expression only imposes a temporal limitation.
My interpretation is consistent with the context in which s 40(1)(c)(ii) appears. Section 40 is a companion to s 44. The latter confers an entitlement to compensation and the former provides exceptions to that entitlement. As the entitlement to compensation under s 44 arises in respect of ‘an earner who is injured as a result of a transport accident’, logically, the exception under s 40(1)(c)(ii) should be limited to a person whose driving of a vehicle directly causes the incident which gives rise to the transport accident, in the sense described at [103] above.
The interpretation that I have adopted is also consistent with the objects of the Act, because it is socially and economically appropriate that persons who are injured as a result of a transport accident that they did not directly cause should receive suitable and just compensation.
My interpretation avoids subtle distinctions which create difficulties in the application of s 40(1)(c)(ii) and which have the potential to bring about absurd results. In the example I gave at [102] above, it would be absurd if the person who is a double victim – first of the theft of his or her vehicle and secondly of a transport accident which he or she did not cause – should be deprived of compensation under s 44 of the Act. This is so whether he or she previously had his or her licence cancelled due to speeding or to intoxication or for any other cause. The disqualifying conduct has no connection whatsoever with the transport accident.
The trial judge’s reasons, in substance, reflect the interpretation that I have adopted.[72] His Honour was right to order that the VCAT’s decision be set aside, and there is no basis for disturbing his Honour’s order.
[72]See Kymantas v Transport Accident Commission [2010] VSC 634 (9 December 2010) [31].
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