Van Der Wolf v Transport Accident Commission - [2024] VSC 296

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 00588

RONALD VAN DER WOLF	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 March 2024
DATE OF JUDGMENT:	5 June 2024
CASE MAY BE CITED AS:	Van Der Wolf v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2024] VSC 296

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ACCIDENT COMPENSATION — Appeal from Victorian Civil and Administrative Tribunal — Alcohol interlock device fitted to applicant’s vehicle — Device alarm sounded when applicant missed a random retest requirement — Applicant claimed compensation for injuries suffered due to alarm sounding — Whether claimed injuries the result of a ‘transport accident’ — Tribunal found incident not directly caused by the driving of a motor vehicle and not a ‘transport accident’ — Whether only one finding open to Tribunal on the evidence — Whether Tribunal misapplied definition of ‘transport accident’ — Whether Tribunal’s reasons adequate — Leave to appeal granted — Appeal dismissed — Transport Accident Act 1986 (Vic) ss 3, 35(1).

PRACTICE AND PROCEDURE — Application for extension of time in which to apply for leave to appeal — Notice of appeal filed one day outside required period — Extension of time granted — Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 148(1), 148(5).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S McCredie	Henry Carus & Associates
For the Respondent	Mr R Kumar and Ms E Golshtein	Solicitor to the Transport Accident Commission

HER HONOUR:

In 2016, Ronald Van Der Wolf lost his driver’s licence for drink driving. He regained his licence on 26 July 2017, on condition that an alcohol interlock device was fitted to any vehicle he drove for the following six months. The device required Mr Van Der Wolf to pass a breath alcohol test in order to start the engine, and to pass retests at random times while the engine was running. A retest would be requested between five and 15 minutes after starting the engine and, if the retest was not conducted within five minutes, an alarm would sound until either the retest was undertaken or the engine was switched off.

On the afternoon of 1 September 2017, Mr Van Der Wolf was driving along the Maroondah Highway in heavy traffic when the device requested a retest. He did not complete the retest within the required five minutes, and the alarm sounded for a period of 45 seconds, until he successfully completed the retest.

In January 2019, Mr Van Der Wolf made a claim under the Transport Accident Act 1986 (Vic) (the Act) for compensation in respect of injuries suffered as a result of the alarm sounding ‘at an incredibly loud volume’. His claimed injuries are hearing loss, tinnitus, and psychological injury. The Transport Accident Commission (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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] VSC 296
Decision Date: 5 June 2024

CaseChat Overview and Summary

The applicant, Van Der Wolf, appealed against a decision of the Victorian Civil and Administrative Tribunal, which found that the injuries he sustained were not a result of a ‘transport accident’ under the Transport Accident Act 1986 (Vic). The dispute arose after an alcohol interlock device installed in Van Der Wolf's vehicle alarmed when he missed a random retest requirement, resulting in him suffering injuries. The Tribunal found that the incident was not directly caused by the driving of a motor vehicle and, therefore, not a ‘transport accident’ as defined in the Act.

The primary legal issue before the court was whether the Tribunal’s finding that the incident was not a ‘transport accident’ was the only finding open to it on the evidence. The court also examined whether the Tribunal misapplied the definition of ‘transport accident’ and whether its reasons were adequate. Additionally, the court considered an application for an extension of time in which to apply for leave to appeal, as the notice of appeal was filed one day outside the required period.

In addressing these issues, the court found that the Tribunal's decision was open to it based on the evidence presented. The court concluded that the Tribunal did not misapply the definition of a ‘transport accident’ and that its reasons were adequate. As for the procedural issue, the court granted the extension of time under section 148(5) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). Ultimately, the appeal was dismissed.

No further orders were made.

Orders