Van Der Wolf v TAC

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0072

RONALD VAN DER WOLF	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	BEACH JA, FORBES AND J FORREST AJJA
WHERE HELD:	Melbourne
DATE OF HEARING:	12 February 2025
DATE OF JUDGMENT:	6 March 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 24
JUDGMENT APPEALED FROM:	[2024] VSC 296 (Richards J)

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TRANSPORT ACCIDENT – Application for leave to appeal decision of trial judge on appeal of orders of Victorian Civil and Administrative Tribunal – Applicant alleged to have suffered injury from sounding of alcohol interlock device alarm fitted to his vehicle – Tribunal found incident not directly caused by the driving of a motor vehicle and not a ‘transport accident’ within the meaning of s 3 of the Transport Accident Act 1986 – Whether judge erred in concluding that it was open to the Tribunal to find that the incident was not directly caused by the applicant’s driving of his motor vehicle – No error of law in Tribunal’s decision – Leave to appeal refused.

Transport Accident Act 1986, ss 3, 35(1).
Victorian Civil and Administrative Tribunal Act 1998, s 148.

Insurance Commission (WA) v Container Handlers Pty Ltd (2004) 218 CLR 89; Foursquare Construction Management Pty Ltd v Victorian WorkCover Authority (2022) 68 VR 415; Maitland Smith v Path Transit Pty Ltd (2009) 52 MVR 185, considered.

Marsh v Transport Accident Commission (2020) 92 MVR 201; Zengin v Insurance Commission of Western Australia [2020] VSC 237, referred to.

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Counsel
Applicant:		Mr SR McCredie
Respondent:		Mr R Kumar with Ms E Golshtein
Solicitors
Applicant:	Henry Carus & Associates
Respondent:	Transport Accident Commission

BEACH JA
FORBES AJA
J FORREST AJA:

This is, by any standard, a most unusual case. Mr Van Der Wolf, the applicant for leave to appeal, alleges that he sustained sensory neural hearing loss when an alarm (at times called a siren), attached to a breath alcohol interlock device (‘the interlock’) in his Volkswagen van, for a short time gave off a loud and constant noise. This happened whilst his vehicle was stationary with the engine running as Mr Van Der Wolf, who was in the driver’s seat, endeavoured to operate the interlock.
Mr Van Der Wolf asserts that his injury (i.e. the hearing loss and an associated psychological reaction) was the result of a transport accident and therefore he is entitled to compensation under the Transport Accident Act 1986 (‘the Act’).
The question that the Transport Accident Commission (‘TAC’) and then, on review, the Victorian Civil and Administrative Tribunal (‘the Tribunal’) had to answer was whether the sounding of the alarm (which resulted in the injury) was an incident directly caused by the driving of a motor vehicle.
TAC said it was not. The Tribunal (constituted by Senior Member Wentworth) also answered the question in the negative.[1]
[1]Van Der Wolf v Transport Accident Commission (Review and Regulation) [2023] VCAT 51 (‘VCAT Reasons’).
On appeal in the Trial Division of this Court, the judge held that the Tribunal’s conclusion was open on the evidence adduced before it.[2] Mr Van Der Wolf now seeks leave to appeal that conclusion.
[2]Van Der Wolf v Transport Accident Commission [2024] VSC 296 (Richards J) (‘Reasons’).
We agree with the judge and our reasons follow.

The background facts — in precis

There is now no dispute over the sequence of events that produced Mr Van Der Wolf’s alleged injury. We say ‘alleged’, as the question of whether the alarm caused any auditory loss has not yet been resolved.
Mr Van Der Wolf was born on 18 November 1959 and is now 65 years of age. He has been on a disability support pension since 1978 but has also been involved in electrical repair work. To that end, he uses a Volkswagen van.
In 2016, Mr Van Der Wolf was convicted of drink driving and his driver’s licence was either suspended or cancelled for a period of six months. By order of a magistrate on 26 July 2017, he regained his licence on condition that he have an alcohol interlock device fitted to any motor vehicle he drove for a period of six months.
In compliance with the condition, a WR3 Alcohol Interlock Device, manufactured and installed by Guardian Interlock Systems Australia Pty Ltd was fitted to the van. As part of the system, an alarm (which Mr Van Der Wolf describes as a siren) was installed under the van’s dashboard. The method of operation of the interlock is described subsequently.
On 1 September 2017, whilst Mr van Der Wolf was driving the van, the interlock requested that he perform a retest. As will be explained in a moment, this required him to pass a breath alcohol test using the interlock within a period of five minutes of the request.
Mr Van Der Wolf parked the van in a side street off the Maroondah Highway, with the engine running. He remained in the driver’s seat. He did not complete the retest within the required five minutes, and the alarm then sounded for a period of 45 seconds, until he successfully completed the retest.
Mr Van Der Wolf subsequently made a claim under the Act for compensation in respect of injuries allegedly suffered as a result of the alarm sounding ‘at an incredibly loud volume’. In particular, Mr Van Der Wolf alleged that the piercing noise of the alarm has caused him acoustic trauma (hearing loss), tinnitus and the development of an associated psychological reaction.
TAC denied the claim on 25 February 2019 on the basis that the accident was not directly caused by the driving of a motor vehicle, and accordingly it was not liable to pay compensation in respect of his injuries.
The Tribunal, on review, affirmed that decision on 18 January 2023.
Mr Van der Wolf then appealed the Tribunal’s decision to the Trial Division of this Court pursuant to s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’).
On 18 June 2024, Richards J dismissed the appeal.

The relevant provisions of the Transport Accident Act

Section 3(1) of the Act defines a transport accident as ‘an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram’.
Section 35(1) of the Act entitles (subject to a number of conditions) a person who is injured as a result of a transport accident, to compensation in accordance with the Act.
Accordingly, it was incumbent upon Mr Van Der Wolf to establish that he was injured as a result of an incident directly caused by the driving of a motor vehicle. The relevant incident was the sounding of the alarm of the interlock.

The Tribunal hearing

The following documents formed part of the Tribunal book and are relevant to this question:
•an affidavit of Mr Van Der Wolf;
•three reports of Dr Andrew George, an engineer;
•a document titled ‘Guardian Interlock W3R3 User Manual’;
•a document titled ‘Alcolock WR3 Ignition Interlock’ being the interlock specifications; and
•a report from Mr Mark Ficken of Guardian Interlock Systems Australia Pty Ltd.
At the hearing (which was conducted audiovisually), Mr Van Der Wolf, Dr George and Mr Ficken each gave evidence and were cross-examined.

The operation of the interlock

The Tribunal made the following findings in relation to the operation of the interlock which were not the subject of challenge in this Court:
•A WR3 alcohol interlock device (the interlock device) was fitted to the vehicle in question by Guardian Interlock Systems Australia Pty Ltd. This included a siren/alarm fitted under the vehicle dash.
•The device requests a random retest five to 15 minutes after the engine has started; and 15 to 60 minutes after the previous random retest in which a pass (the required bac [blood alcohol concentration] result) was obtained. The retest in this case was within that time frame.
•If a retest is not taken and passed within five minutes of the request, the device will display a ‘Missed Retest’ message, the alarm will sound, and the vehicle hazard lights will flash. The device operated in that way in this case.
•The retest will be requested, and the alarm will sound if the retest is missed, whether or not the vehicle is stationary or in motion, and whether or not anyone is in the car. All that is required is that the engine is running. In this case, the pre-condition for the retest request was met, namely that the engine was running.
•In this case, the device requested the retest because it was within five to 15 minutes of the engine starting. The alarm sounded because Mr Van Der Wolf did not pass the retest within five minutes of the retest request.
•The alarm would have sounded whether or not the vehicle was stationary or in motion, and whether or not Mr Van Der Wolf (or anyone else) was in the vehicle.
•The device does not shut down the engine, take control of the vehicle away from a driver, or prevent them from continuing to drive if a retest is missed. The hazard lights flashing will limit the ability to indicate changes of direction but not to use the steering to control the direction of the vehicle, or the accelerator or brakes to control its speed or movement. In other words, if a retest is missed the device itself does not interfere with the driving of the vehicle. As Mr Ficken said, this is a technical requirement for obvious safety reasons.
•While the recommendation is to pull over before attempting the retest, and the retest is more easily and safely attempted while stationary on the side of the road, the device itself does not require this, and it is possible to undertake the retest while in traffic without pulling over.[3]
[3]VCAT Reasons, [63].

The decision of the Tribunal

The reasons of the Tribunal are both lucid and comprehensive in resolving a question that on its face was not totally free of doubt. A significant portion of the reasons is directed to an analysis of the authorities relevant to the expression ‘directly caused by the driving of a vehicle’, which need not be repeated here. It suffices to say that much of the Tribunal’s analysis focused on the decision of the High Court in Insurance Commission (WA) v Container Handlers Pty Ltd,[4] and of this Court in Foursquare Construction Management Pty Ltd v Victorian WorkCover Authority.[5]
[4](2004) 218 CLR 89; [2004] HCA 24 (‘Container Handlers’).
[5](2022) 68 VR 415; [2022] VSCA 237 (‘Foursquare’).
Nor is it necessary to repeat the unchallenged findings as to the operation of the interlock which we have just set out.
The Tribunal’s findings were summarised at the commencement of the reasons at paragraph [11]:
•Although Mr Van Der Wolf was in charge of the vehicle and had been in the course of driving it at the time the alarm sounded, that is not sufficient for there to be a ‘transport accident’ within the definition. Some feature of the driving needs to be a direct cause of the alarm sounding.
•The device was fitted to his vehicle, and operated as intended, because of a Court order. It was, as submitted for Mr Van Der Wolf, a precondition of him driving a vehicle to have a device fitted to that vehicle, and to pass the initial bac [blood alcohol concentration] test before he could start the engine. There was, in that sense, a connection between the device and Mr Van Der Wolf’s ability to use the vehicle to drive, but it is not enough that the incident arose out of or was caused by a person’s use of the vehicle.
•In this case, the alarm sounded because the device fitted to his vehicle requested a retest and Mr Van Der Wolf did not successfully complete the retest in time to prevent the alarm sounding. Although there was a temporal connection with him driving, there was no feature of the driving that caused the retest request or the alarm to sound.
•Once the initial test was passed and the engine was running, the device and the retest process did not prevent him from driving safely or control his operation of the movement and direction of the vehicle in any way, even when the retest was missed and the alarm sounded. He was able to drive safely into a side street when the traffic allowed him to do so. Once he passed the retest, the alarm stopped.
•Further, as the evidence established, a retest may be required, and the alarm will sound if it is missed, even if no-one is in the vehicle, provided only that the engine is running. It is not necessary that the vehicle be in motion, or otherwise driven by anyone. In other words, the retest had been requested by the device solely because the engine had been running for a period of time, not because it had been driven in that time. It, and the alarm, operated independently of the vehicle being driven or any aspect of ‘the driving’.
Then, after an analysis of the authorities and the evidence (including as to the operation of the interlock as set out at [23] above), the Tribunal reached the following relevant detailed findings of fact at paragraphs [63], [64] and [67] of the reasons:[6]
[6]VCAT Reasons, [63], [64], [67] (footnotes omitted).
•In this case, although the traffic conditions may have delayed him pulling into the side street, and I accept that the experience was stressful, neither the device nor the alarm prevented Mr Van Der Wolf from operating the controls to drive the vehicle, and he was able to drive the vehicle safely into the side street. To the extent the flashing hazard lights prevented him from indicating while he was driving into the side street, this did not prevent him from driving safely without incident. No failure to indicate caused the alarm to sound.
•The chronology provided from the device’s log in respect of the timing of the retest request, the alarm sounding, and three unsuccessful attempts is accurate. It indicates that:
othe alarm sounded five minutes after the retest request;
oan unsuccessful attempt was made before the siren sounded;
otwo unsuccessful attempts were made after the siren sounded; and
othe retest was passed, and the alarm stopped 45 seconds after it had started.
•While it is unclear exactly when in the sequence Mr Van Der Wolf pulled over into the side street, I accept his evidence that he had pulled into the side street and was stationary when he first attempted the retest; and was stationary in the side street when he passed the test and the alarm stopped. He then continued on his journey.
As to whether Mr Van Der Wolf was ‘driving’ at the time the retest was requested and when the alarm sounded five minutes later, in my view he was probably ‘driving’, (although the fact of driving at the time of the incident does not determine the question of causation). This is because:
•He was stationary at different points in the sequence, from the retest being requested to the alarm stopping, but temporarily so.
•When the retest was requested, he had just crossed over the intersection of Maroondah Highway and Warrandyte Road; the vehicle was stationary with the engine running; and he was ready (and able) to move again when traffic conditions allowed. This was not a case where the driving was completed. After he passed the test, with the engine running, he continued on his journey home.
•Although the vehicle was not ‘in locomotion’ while he was stationary in the traffic, he was engaged in activities within the ‘core meaning’ of the word ‘driving’ – operating the controls to brake, stop, prepare to move again. He was controlling the movement and direction of the vehicle.
…
On balance, I consider it more likely than not that the alarm sounded in the side street, but I do not think the case turns on the matter. Whether he was temporarily stationary in the traffic or temporarily stationary in the side street when the alarm sounded, to be a transport accident, the alarm sounding must have been directly caused by ‘the driving’. That is a separate question to whether he was driving at the time the alarm sounded.
The Tribunal then reached the following conclusion as to whether the sounding of the alarm fell within the statutory definition:[7]
[7]VCAT Reasons, [76]–[78] (emphases in original) (citations omitted).
76Having the device fitted was certainly a precondition of Mr Van Der Wolf being able to drive a vehicle. This does not mean, however, that the device was a feature of the driving, as that part of the definition has been interpreted. Nor does it meet the requirement that there be some feature of the driving that has directly caused the incident.
77In my view, on the facts in this case, the required causal link is not established:
•If Mr Van Der Wolf had left the vehicle at home and not used it to go to and from his doctor’s appointment, the incident would not have happened, but ‘directly caused by the driving’ is more than a ‘but for’ test, and it is not enough that the incident arose out of the use of the vehicle.
•The incident occurred while Mr Van Der Wolf was in the course of driving, but this is not of itself sufficient if there is not the required direct causal link between some feature of the driving and the incident. Whether or not he was ‘driving’ at the time does not determine the question of causation.
•In this case there was no feature of the driving that directly caused the alarm to sound. I agree with the submission for the TAC that there was nothing about ‘the propulsion or movement of the vehicle, including its movement to a stop, by the control and management of those functions’ that directly caused the alarm to sound. The sounding of the alarm operated independently of any aspect of the driving of the vehicle.
•Contrary to the submission for Mr Van Der Wolf, the device did not necessarily sound as part of the movement of the vehicle; and was not necessarily part of the continuation of the propulsion of the vehicle. The sounding of the alarm operated independently of any movement or propulsion of the vehicle. Indeed, it operated independently of Mr Van Der Wolf being in the vehicle at all. On the evidence, the alarm operates whether or not the vehicle is moving and whether or not anyone is in the driver’s seat.
•Further, the incident was not caused by the device interfering with Mr Van Der Wolf’s ability to control and manage the driving functions – he retained control of the essential components for the movement and propulsion of the vehicle. To the extent that he was stationary when the retest was requested and the alarm later sounded, he retained the ability to move the vehicle forward and into the side road when the traffic conditions allowed, and he did so safely without incident.
•While the retest request was the reason Mr Van der Wolf drove the vehicle to a side street as soon as he was safely able to do so, and I accept that he was panicked and distressed, no aspect of the way he steered or propelled through the traffic or brought the vehicle to a stop in the side street caused the alarm to sound, and none of those actions caused him injury. The alarm sounding did not cause him to brake suddenly brake causing injury, or lose control of the vehicle causing a collision.
78For the reasons above, my conclusion is that the incident in this case was not directly caused by the driving of a motor vehicle, and is not therefore a transport accident within the definition in the Act. Any injuries Mr Van Der Wolf suffered were likewise not directly caused by the driving of a motor vehicle.

The decision of Richards J

The applicant sought leave to appeal from the Tribunal’s decision to the Trial Division of this Court, on three questions of law.
(a)First, whether, on all the evidence, and having found that Mr Van Der Wolf was driving the vehicle at all relevant times, the Tribunal was bound to find that the sounding of the interlock was directly caused by the driving of the vehicle.
(b)Second, whether the Tribunal did not properly apply the legislative requirement under s 3(1) of the Act, by wrongly focusing on whether the interlock that sounded the alarm was a feature of the driving of Mr Van Der Wolf’s vehicle, rather than asking whether the sounding of the alarm was a feature of the driving of his vehicle.
(c)Third, whether the Tribunal failed to give proper reasons, by failing to identify the findings made in respect of expert evidence in relation to the interlock that were material to the ultimate conclusion that the incident was not directly caused by the driving of the motor vehicle, and the path of reasoning to explain how those findings supported the ultimate conclusion.

Before commencing her consideration of ground 1 and after having carefully set out the submission of the parties, the judge noted that the applicant took no issue with the Tribunal’s exposition of the law concerning the meaning of ‘transport accident’ and did not submit that it misconstrued the Act or misunderstood the relevant authorities.
Her Honour observed that the question whether, in the unique circumstances of the case, the incident was directly caused by the driving of Mr Van Der Wolf’s vehicle was ‘necessarily one of fact and degree’,and the applicant could only succeed on ground 1 if it was not open to the Tribunal to conclude that the sounding of the alarm was not directly caused by the driving of a motor vehicle.[8]
[8]Reasons, [30]–[31].
The judge considered that the detailed intermediate findings about the operation of the interlock and the sequence of events leading up to the sounding of the alarm (parts of which are set out at [23], [26] and [27] above) allowed the Tribunal to engage in the ‘fine-grained consideration of causation’ in [77] of its reasons (set out at [28] above) and given those findings she did not consider that the evidence compelled the Tribunal to find that the sounding of the alarm was directly caused by the driving of the vehicle.
More particularly, her Honour found that the Tribunal was ‘clearly conscious of the temporal connection between the driving of the vehicle and the sounding of the alarm’ yet it was open to the Tribunal to find that the sounding of the alarm was not directly caused by the driving of the vehicle in circumstances where:
(a)the alarm sounded independently of the vehicle;
(b)the vehicle was stationary when the retest was requested, when Mr Van Der Wolf first attempted to retest, and when the alarm sounded; and
(c)the operation of the interlock and the sounding of the alarm did not interfere with Mr Van Der Wolf’s driving of the vehicle.[9]
[9]Reasons, [31]–[33].
As to ground 2, the applicant contended that the Tribunal accepted that having the interlock fitted was a precondition to him driving the vehicle but found that this did not mean that the interlock was a feature of the driving — demonstrates that the Tribunal misapplied the definition of ‘transport accident’ to the facts of the case.[10]
[10]Reasons, [46].
The judge considered that the Tribunal properly addressed itself to the question of whether the sounding of the alarm was directly caused by the driving of the vehicle. Within this, her Honour noted that the Tribunal correctly identified the relevant statutory definitions and gave a clear and comprehensive summary of the relevant authorities (about which no complaint was made), and the Tribunal’s reasons contain numerous references to the need for the sounding of the alarm to have been directly caused by the driving of the vehicle, including in the final sentence of [76].[11]
[11]Ibid.
Further, the judge did not accept Mr Van Der Wolf’s contention about the factual basis for the Tribunal’s finding that the alarm did not interfere with his driving — insofar as he referred to the findings at [63] that the sounding of the alarm was stressful to him and caused the vehicle’s hazard lights to flash and contended these must have interfered with his ability to drive the vehicle — and noted that the Tribunal’s findings of fact on this point were not challenged on the appeal. These findings involved an implicit rejection of Mr Van Der Wolf’s submission that the sounding of the alarm must have interfered with his driving of the vehicle.[12]
[12]Reasons, [47]–[48].
Accordingly, her Honour found that it was open on the evidence for the Tribunal to make such findings.[13]
[13]Reasons, [48].
It is not necessary to set out the judge’s reasons as to the adequacy of the Tribunal’s reasons (ground 3 before the judge) which was not pursued on this appeal. We should add, however, that we agree entirely with Her Honour’s conclusion that the reasons of the Tribunal provided ‘an intelligible explanation of the process of reasoning that has led the tribunal from the evidence to the findings and from the findings to the ultimate conclusion’[14] and that the reasons are ‘admirably clear’.[15]
[14]Reasons, [54] citing Dimatos v Coombe [2011] VSC 619, [20]; see also Turner [2009] VSC 66, [239]–[240].
[15]Reasons, [55].

Consideration

Section 148 of the VCAT Act provides that appeals against decisions at VCAT shall only be brought on ‘a question of law’. The meaning of this phrase and its relationship to the fact finding exercise at the Tribunal has been considered on multiple occasions in other decisions of this Court (and its predecessors).[16]
[16]S v Crimes Compensation Tribunal [1998] 1 VR 83; Myers v Medical Practitioners’ Board of Victoria (2007) 18 VR 48, ISPT Pty Ltd v Melbourne City Council (2008) 20 VR 447; [2008] VSCA 180; Devaney v Crown Melbourne Ltd [2021] VSCA 168; Brighton Foreshore Association Inc v Bayside City Council [2021] VSCA 284.
We would adopt and apply what was said by Niall JA, in Marsh v Transport Accident Commission:
In Vetter v Lake Macquarie City Council, a majority of the High Court noted that ‘whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law’. That formulation leaves open the possibility that the application of the facts to a statutory phrase may involve a mixed question of fact and law and not involve a question of law within the scope of s 148 of the VCAT Act. That will be so where the question of whether the facts found fall with the statutory phrase is not susceptible to only one correct answer. Within that area of choice, the decision of the repository of the power will generally be one of fact.
As explained by Hill J in Sharp Corporation of Australia Pty Ltd v Collector of Customs:
... where the facts found are capable of falling within or without the description used in the statute, the decision which side of the line they fall on will be a decision of fact and not law. Such a decision will generally involve weight being given to one or other element of the facts and so involve matters of degree.
On the other hand, where, on the facts, only one answer is open, in other words, the facts are necessarily within or outside the statutory bounds, then there is exclusively a question of law. As explained by the High Court in Vetter, by reference to Mason J’s judgment in Hope v Bathurst City Council (‘Hope’):
… when it is necessary to engage in a process of construction of the meaning of a word (or phrase) in a statute a question of law will be involved, but that the question may be a mixed one of fact and law. His Honour’s reasons make it clear that a question exclusively of law arises, as the respondent sought to argue was the position in this case, if, on the facts found only one conclusion is open.
To put it another way, ‘whilst the question of whether a given set of facts could fall within such a standard is a question of law the question of whether a particular set of facts does do so is a question of fact’.[17]
[17](2020) 92 MVR 201, 206 [23]–[26] (citations omitted); [2020] VSC 228.
Consistent with Niall JA’s statement, and the earlier decisions of this Court, it was accepted by counsel for Mr Van Der Wolf that for the application to succeed it was necessary for him to establish that it was not open to the Tribunal to conclude that the incident involving the sounding of the alarm was not a transport accident.
In this case, the statutory language was clear: the Tribunal was required to address an issue of fact, namely, whether the sounding of the alarm was directly caused by the driving of the vehicle.
Counsel for Mr Van Der Wolf contended that it was. Counsel argued that the only conclusion available to the Tribunal given the findings of fact set out at [23], [26] and [27] above, was that the necessary direct causation required by the Act had been established by his client.
Counsel submitted that everything associated with the sounding of the alarm was connected to the driving. The alarm was an integral part of the interlock, and it was necessary to engage the interlock to drive the van. The interlock had been engaged, and Mr Van Der Wolf was able to drive the van to the point where he was required to undergo a retest.
It was argued that but for the driving, the incident would not have occurred as Mr Van Der Wolf’s driving gave rise to the requirement to retest. His performance of the retest was itself an activity intimately connected with the driving of the van in the same way as is the sounding of the horn. The purpose and effect of the device, by its design, was to interfere with the driver’s control and management of the vehicle, unless and until the tests required by the interlock were complied with.
It was then said that the purpose of the interlock had the effect of interfering with Mr Van Der Wolf’s driving: he had to pull over until he successfully completed the retest and was able to return to driving without the hazard lights flashing and alarm sounding. Failing to complete the retest in the time required was an outcome resulting from the ineffectiveness of the applicant’s ‘driving’ the vehicle as constituted by the actions he undertook in responding to the retest. The sounding of the alarm was only occasioned because Mr Van Der Wolf had been driving and wished to continue to drive. This, so the argument ran, meant that the driving of the van was so connected with the sounding of the alarm that the only conclusion open was that it was directly caused by the driving of the van.
Counsel argued that this analysis placed the facts squarely within those the statements of principle discussed by the High Court in Container Handlers,[18] the Court of Appeal of Western Australia in Maitland Smith v Path Transit Pty Ltd,[19] and more recently, this Court in Foursquare.[20]
[18](2004) 218 CLR 89; [2004] HCA 24.
[19](2009) 52 MVR 185; [2009] WASCA 46 (‘Maitland Smith’).
[20](2022) 68 VR 415; [2022] VSCA 237.
Counsel for TAC also relied upon the principles set out in these authorities. Within this, counsel noted that the Tribunal was required to determine if the ‘driving’ of the vehicle was a ‘direct cause’ of the sounding of the alarm, consistent with the approach enunciated by McHugh J in Container Handlers. The Tribunal was not bound to find the causa causans (original cause) or the causa causata (secondary or intermediate cause), as was suggested was necessary by Mr Van Der Wolf in the event of finding that the driving was not the direct cause of the incident.[21]
[21]In respect of which Mr Van Der Wolf cited National Insurance Co of New Zealand v Espagne (1961) 105 CLR 569, 592 (Windeyer J).
Counsel for TAC then argued that the operation of the alarm was unconnected to the actual driving of the vehicle. The alarm sounded, not because of the driving, but rather because of the failure of Mr Van Der Wolf to carry out the test appropriately. Whilst dependent upon the vehicle’s engine having been started, the alarm would have sounded whether the van was in motion or stationary. Mr Van Der Wolf did not need to be in the van for the alarm to sound, as long as the engine was running. In summary, TAC argued that whilst the operation of the device had a clear connection with the use of the van (as the Tribunal found) — provided it was installed in the vehicle and operated in conjunction with a started engine — unlike the applicant’s example of a horn, it was otherwise divorced from any function or feature of the ‘driving’ of the vehicle. Accordingly, the sounding of the alarm was not directly caused by the driving of the van, but rather, as the Tribunal found, the applicant’s failure to complete a retest.
The submissions of Mr Van Der Wolf are unpersuasive.
In Foursquare, this Court addressed in some detail the decision of the High Court in Container Handlers and the Western Australian decision of Maitland Smith.[22]
[22](2009) 52 MVR 185; [2009] WASCA 46.
In Container Handlers, McHugh J said:
Whichever limb of the indemnity is invoked, however, the legislative history and purpose of the Act demonstrate that there must be a causal link between the death or injury and some feature of the driving of the vehicle. It is not enough that the death or injury is the result of the use of the vehicle. The death or injury must be a consequence of the driving of the vehicle. The definite article ‘the’ in front of ‘driving’ emphasises the need to find a causal connection between the death or injury and some feature of the driving of the vehicle. It is at this stage that the case for Container Handlers fails.
...
The mere fact that Mr Sutton’s injury would not have occurred if the vehicle had not been driven from Port Hedland to Camp Tracey and then to Nifty or from Nifty to Port Hedland does not mean that, for the purpose of the Act, the injury to Mr Sutton was a consequence of the driving of the vehicle. The use of the vehicle to transport a heavy crane and a mine transport truck on bad roads was a necessary pre-condition for the sustaining of the injury. However, the injury was not a consequence of any feature of the driving of the prime mover and its attached load. The injury was not a result or effect of some feature of the driving of the vehicle. Taylor J’s remarks in Butler, although phrased in terms of ‘cause’ and ‘effect’ rather than ‘consequence’, are instructive in this context:
[T]he cause of an event is not established in the legal sense by showing, without more, that in the absence of a proved set of circumstances the event would or may not have happened, or, that a proved set of circumstances, in the widest sense, contributed to the happening of the event.
Once it is understood that using the vehicle is not equivalent to the driving of it, it is impossible to hold that the injury to Mr Sutton was a consequence of the driving of the prime mover and low loader. His injury was not a consequence of any feature of the driving of the vehicle.[23]
[23]Container Handlers (2004) 218 CLR 89, 113–4 [64], [66] (emphasis added); [2004] HCA 24.
In Maitland Smith, Martin CJ (with whom Le Miere AJA agreed), after analysing in detail the various judgments in Container Handlers, noted:
Three members of the court (McHugh, Callinan and Heydon JJ) were of the view that ‘driving’ was limited to the actual operation and control of the direction and speed of the vehicle.[24]
[24]Maitland Smith (2009) 52 MVR 185, 193 [39]; [2009] WASCA 46.
McClure JA was of a similar view:
The majority position in Container Handlers is that the injury must be directly caused by the driving of the motor vehicle and the driving means the operation of the vehicle under the control and management of the driver.[25]
[25]Ibid 200 [83].
Then recently in Foursquare, this Court said:
The cases show that ‘the driving’ of a vehicle is the propulsion and movement of the vehicle, including its movement to a stop, by the control and management of those functions. An incident which happens after the driving is completed may be directly caused by the driving, within the meaning of the definition, if the incident is immediate in terms of space and time to the driving, but even then the question is one of fact in every case.
By way of illustration, a driver might be injured immediately after parking their car in a home garage, by a garage door which malfunctions while closing. The driving has ceased with the parking of the vehicle. The injury follows closely upon the driving, the closing of the door is related to the driving, and the injury might be sustained close to the vehicle, but neither the closing of the door nor the injury could be said to have been caused by the driving.[26]
[26]Foursquare (2022) 68 VR 415, 430 [69]–[70] (McLeish and T Forrest JJA, J Forrest AJA); [2022] VSCA 237.
This analysis leads unerringly to the conclusion that to satisfy the test under the Act the incident which produces the injury must have a direct connection with the movement or propulsion of the vehicle — and thus be a feature of its driving. It is not enough to be a sine qua non, as Moore J recognised in Zengin v Insurance Commission of Western Australia[27] consistent with McHugh J’s analysis in Containers Handlers. Nor is it enough for the incident to have an intimate connection with the immediate use of the vehicle.
[27][2020] VSC 237, [62].
For the following reasons, we are satisfied that not only was it open to the Tribunal to reach the conclusion it did, but that it was the proper conclusion.
First, as just mentioned, an intimate connection between the driving of the motor vehicle and the incident which produces the injury is, on its own, insufficient to satisfy the statutory test. In Foursquare, the Court set out the statutory history of the definition of ‘transport accident’. What is clear is that the legislature has progressively tightened the definition of transport accident within the Act so that incidents which previously would have satisfied the statutory test at that time no longer do so.
This is just such a situation. Undoubtedly, Mr Van Der Wolf’s injury would have been held to have occurred as a result of an incident ‘arising out of the use of the motor vehicle’. It would also have satisfied the definition of an incident ‘arising out of the driving of the motor vehicle’. In both instances, this is so because of the close association between the operation of the interlock and Mr Van der Wolf’s use or driving of the van.
But the current statutory definition, as we have seen, requires a direct causal link between a feature of the driving (in the sense of movement or propulsion of the vehicle) and the incident which produces the injury. This is a very different kettle of fish to the earlier iterations of the definition of a transport accident.
Second, whilst the alarm sounded as part of the interlock, this had no relationship to the propulsion or movement of the van. It was a function of the interlock that was inevitable regardless of the movement or propulsion of the van. It was unrelated to Mr Van Der Wolf’s control of the vehicle or its movement at the time the alarm sounded.
Third, as counsel for Mr Van Der Wolf argued, it is undoubtedly the case that the driving of the vehicle played an integral part in the operation of the interlock. The van would not have started without the interlock being activated which permitted it to be driven to the point where the incident occurred. Mr Van Der Wolf was in the driver’s seat and intended to continue driving once he had completed the test. All this, as counsel for Mr Van Der Wolf argued, was directly related to the driving of the van, but that is not enough. Establishing that the driving of the van was a precondition to the sounding of the alarm avoids the true question — was the sounding of the alarm directly caused by the driving of the vehicle in the sense of the vehicle’s movement or propulsion?
In Container Handlers, the prime mover with low loader trailer attached had been halted during the course of its journey and was jacked up on the roadside when the jack slipped, pinning the hand of a passenger who had been assisting the driver to repair the vehicle, injuring him severely. In Foursquare, the driver had driven his truck to a halt, alighted from the truck (with the engine running) and walked a short distance to inspect the drop-off point for the industrial waste bins he was transporting, when he tripped and fell on a piece of reinforced steel mesh lying on the ground in the vicinity of the truck. However, as the result in both those cases demonstrates, a sine qua non connection does not satisfy the statutory test.
Here, the alarm sounded independently of Mr Van de Wolf’s driving or control of the van. The fact that use of the interlock was intimately associated with the driving of the van as argued by Mr Van der Wolf has no bearing on whether the driving of the vehicle was a direct cause of the sounding of the alarm. The alarm was pre-set to the interlock and was geared to sound whether the vehicle was in motion or stationary. As it turned out, the vehicle was stationary. Moreover, the alarm would sound whether the driver was within or outside the vehicle. No feature of the driving, or of its motion or propulsion, occurred to produce the sound given off by the alarm. In the result, that is the answer to Mr Van Der Wolf’s argument.

Fourth, the statutory test is not exclusionary (i.e. excluding other potential causes) — rather a positive connection must be established between the driving and the incident. This is not a case in which the question of multiple causes arises, as suggested by Mr Van Der Wolf. As TAC argued, the cause of the alarm sounding was Mr Van Der Wolf’s failure to satisfactorily retest within the prescribed time limit — which was unconnected to the driving of the vehicle.
Fifth, it is unnecessary to delve into the facts of any other cases. As was pointed out in Foursquare and in Container Handlers, the question of whether the incident is directly caused by the driving of a motor vehicle will usually turn on the facts as properly found by the trier of fact. As this case amply demonstrates, the factual circumstances can vary wildly and will necessarily determine the answer.
In our view, it was well open to the Tribunal to find that this incident (and Mr Van Der Wolf’s consequential injury) did not result from a transport accident. Indeed, we would have reached the same conclusion. The judge was correct to dismiss the appeal.

Conclusion

The applicant has not established that there was an error of law in the decision of the Tribunal, as required by s 148 of the VCAT Act, and therefore the application for leave to appeal from the decision of the judge must be refused.

[2025] VSCA 24

6 March 2025