Van Der Wolf v Transport Accident Commission
[2024] VSC 296
•5 June 2024
| 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, and so it was not liable for his injuries.
In August 2019, Mr Van Der Wolf applied to the Victorian Civil and Administrative Tribunal for review of the TAC’s decision. The application was heard by Senior Member Wentworth on 29 and 30 June 2022, and further written submissions were filed on 18 November 2022.[1] On 18 January 2023, the Tribunal made an order affirming the TAC’s decision.
[1]Addressing the Court of Appeal’s decision in Foursquare Construction Management Pty Ltd v Victorian WorkCover Authority (2022) 68 VR 415 (Foursquare).
Mr Van Der Wolf now seeks leave to appeal from the Tribunal’s order of 18 January 2023, under s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act). Because his notice of appeal was filed one day outside the 28 day time limit, he also seeks an extension of time under s 148(5) of the VCAT Act.
For the reasons that follow, the extension of time will be granted and Mr Van Der Wolf will have leave to appeal, but the appeal must be dismissed.
Relevant provisions
The Act establishes a scheme of compensation in respect of persons who are injured or die as a result of transport accidents.[2] Section 35(1) of the Act provides that ‘[a] person who is injured as a result of a transport accident is entitled to compensation in accordance with this Act’.
[2]Transport Accident Act 1986 (Vic), s 1 (the Act). The accident must either have occurred in Victoria, or involved a resident of Victoria that was the driver or passenger in a registered motor vehicle: sub-ss (a), (b).
Section 3(1) defines both ‘injury’ and ‘transport accident’, as follows:
injury, except in Part 10, means physical or mental injury and includes nervous shock suffered by a person who was directly involved in the transport accident or who witnessed the transport accident or the immediate aftermath of the transport accident;
…
transport accident means an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram;[3]
…
[3]Section 3(1A) of the Act provides that the definition of transport accident in s 3(1) includes certain kinds of incidents, none of which are relevant in this case.
Section 3(3)(c) provides that, in the Act:
a reference to an injury or death in or as a result of or resulting from a transport accident, or to a person who is injured or dies in or as a result of a transport accident, is a reference to an injury or death directly caused by the driving of a motor vehicle, a railway train or a tram or to a person who sustains injuries that were, or whose death was, directly caused by the driving of a motor vehicle, a railway train or a tram.
The definition of ‘transport accident’ is narrower now than it was originally. When the Act was first enacted in 1986, ‘transport accident’ was defined to mean ‘an incident caused by, or arising out of, the use of a motor car, a railway train or a tram’. The definition was narrowed in 1988, by adding the word ‘directly’ in two places and replacing ‘use’ with ‘driving’. From then until 1994, a ‘transport accident’ meant ‘an incident directly caused by, or directly arising out of, the driving of a motor car, a railway train or tram’. The current definition has applied since 1994.
Tribunal’s reasons
The Tribunal published detailed written reasons for its order affirming the TAC’s decision.[4] Those reasons commenced with an overview, which outlined the factual background and summarised the Tribunal’s reasons for concluding that the incident on 1 September 2017 did not come within the definition of ‘transport accident’, and any injuries that Mr Van Der Wolf suffered as a result of the alarm sounding were not compensable under the Act. In short:[5]
· 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 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’.
[4]Van Der Wolf v Transport Accident Commission (Review and Regulation) [2023] VCAT 51 (Reasons).
[5]Reasons, [11].
The Tribunal set out the relevant provisions of the Act, and referred to the history of the definition of ‘transport accident’. The reasons then provided a comprehensive survey of the relevant authorities, in particular the High Court’s decision in Insurance Commission of Western Australia v Container Handlers Pty Ltd[6] and the Court of Appeal’s more recent decision in Foursquare Construction Management Pty Ltd v Victorian WorkCover Authority.[7]
[6](2004) 218 CLR 89 (Container Handlers).
[7]Foursquare, cited above at fn 1.
After outlining the evidence, the Tribunal made the following findings of fact:[8]
[8]Reasons, [63].
· A Magistrate’s Court order dated 26 July 2017 required Mr Van Der Wolf to have an alcohol interlock device fitted to any motor vehicle he wished to drive for a period of 6 months from the return of his driver’s licence.
· 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 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.
· 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:
o the alarm sounded five minutes after the retest request;
o an unsuccessful attempt was made before the siren sounded;
o two unsuccessful attempts were made after the siren sounded; and
o the 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.
The Tribunal found that Mr Van Der Wolf was ‘driving’ at the time the retest was requested and when the alarm sounded five minutes later, 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.
There was a conflict in the evidence about where the vehicle was when the alarm sounded. Mr Van Der Wolf’s evidence was that it sounded while he was stationary in traffic, and that he pulled into a side street before he made his first retest attempt. However, the device data recorded a failed first attempt one minute and seven seconds before the alarm sounded. The Tribunal resolved that conflict as follows:[9]
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.
[9]Reasons, [67].
The Tribunal recounted the parties’ submissions on the question of causation, and then set out its analysis and decision:[10]
[10]Reasons, [71]–[78] (footnotes omitted).
71 The factual matrix in this case has a number of features that distinguish it from the cases referred to:
·Unlike in cases such as Containers Handlers, Foursquare, Prasad, and Auricht, where the person was outside the motor vehicle, or cases such as Koutroulis where the person was in the course of disembarking from a bus, Mr Van Der Wolf was inside the vehicle, in the driver’s seat, and in the course of driving it home when the incident happened.
·The fact that he was in the vehicle in the course of driving when the retest was requested, which in turn caused the alarm to sound when the retest was missed, brings this case closer to Ross and Kaan in my view. Unlike in those cases, however, where the incident was an external object coming into contact with the car (the windsock in Kaan) or the driver (the bullet in Ross), the incident in this case was a sound coming from a device within the vehicle and fitted to it. In that sense, there are some similarities with the hypothetical example I discussed with the parties, of an incident involving the sound system.
·In Auricht the person injured was outside of the vehicle being driven and was injured by the operation of an external object. In Auricht, the Tribunal found that the operation and movement of the potato seeder was entirely dependent on the propulsion and movement of the tractor and the incident was for that reason a transport accident. In this case, the operation of the device was not dependent on the vehicle being driven. It was not dependent on its movement. The alarm sounded if the retest was missed, whether or not the vehicle was moving. The device required only that the engine be running. Contrary to the submission for Mr Van Der Wolf, Auricht is distinguishable on its facts.
72 I agree with the submission for Mr Van Der Wolf that having an interlock device fitted to the vehicle was a precondition to Mr Van Der Wolf being able to drive his vehicle, in the sense that he was subject to a court order to that effect, and once fitted, he could not turn the ignition on unless he passed the initial bac test.
73 I disagree that it follows, without more, that the requirements for the incident to be a transport accident are satisfied.
74 I also agree that the device was a feature of the conditions under which Mr Van Der Wolf had to drive for six months after he regained his driver’s licence, but this was not the test in Pedersen, and the Court of Appeal in Foursquare has cast doubt on Pedersen in any event.
75 He could not drive any vehicle that did not have a device fitted without facing sanctions, and once fitted, he was required to abide by the associated conditions or face sanctions. He was required to pass the initial bac test in order to start the engine. Once the engine was running, he had to pass subsequent randomly timed retests without turning the engine off or face sanctions; and he had to regularly present the vehicle to an interlock service centre so that the data from the device could be downloaded and any infractions identified.
76 Having 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.
77 In 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.
78 For 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 formal order of the Tribunal was: ‘The respondent’s decision dated 25 February 2019 is affirmed’.
Ground 1 — Was only one finding open on the evidence?
Ground 1 of the proposed appeal asserts that the only finding that the Tribunal could have made on the evidence was that the sounding of the alarm was directly caused by the driving of Mr Van Der Wolf’s vehicle. This ground related to the first question of law identified in the notice of appeal — 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 device alarm was directly caused by the driving of the vehicle.
Mr Van Der Wolf’s submissions
Mr Van Der Wolf took no issue with the Tribunal’s summary of the relevant law or the ‘bedrock’ of factual findings set out in the Reasons. His complaint was about the Tribunal’s ultimate finding that the sounding of the alarm was not directly caused by the driving of the vehicle. He accepted that this finding involved a question of fact, but said that the Tribunal’s ultimate conclusion was simply not open to it on the evidence and so involved an error of law.
Mr Van Der Wolf acknowledged that the Tribunal had identified and quoted the authoritative statement from Foursquare as to the meaning of ‘driving’ for the purposes of the Act, as follows:[11]
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.
[11]Foursquare, [69], quoted in Reasons, [28].
He said that whether a vehicle involved in an incident is driving, and whether the incident is directly caused by the driving of the vehicle, are related, but different, questions. He drew attention to the Court of Appeal’s conclusion that an incident may be directly caused by the driving of a vehicle even if the vehicle is no longer driving when the incident occurs.
Mr Van Der Wolf also accepted that the Tribunal had identified the correct approach to establish a causal link between an incident and driving for the purposes of the definition of ‘transport accident’ in s 3(1) of the Act. That approach was as stated by McHugh J in Container Handlers:[12]
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.
[12]Container Handlers, [64] (McHugh J), quoted in Reasons, [46]. The ‘Act’ referred to in the passage quoted was the Motor Vehicle (Third Party Insurance) Act 1943 (WA).
While taking no issue with the Tribunal’s statement of the law, Mr Van Der Wolf submitted that the Tribunal had failed to make the only finding that was open on the evidence — namely, that the sounding of the device was caused by the driving of the vehicle. He referred to S v Crimes Compensation Tribunal[13] as authority for the proposition that the question whether there was any evidence to support the Tribunal decision is a question of law. He said that the strength of this ground of appeal could be tested by asking, ‘If the sounding of the device was not directly caused by the driving of the vehicle, how otherwise was it caused?’ At the simplest level, the alarm sounded because Mr Van Der Wolf failed to complete the retest within five minutes, but even at this level the alarm only sounded because the engine was on and he was in the course of driving the vehicle. Mr Van Der Wolf said that there was no other cause for the sounding of the alarm.
[13][1998] 1 VR 83, 89 (Phillips JA) (S v Crimes Compensation Tribunal).
Mr Van Der Wolf disputed the Tribunal’s conclusion at [77] of the Reasons that there was nothing about the propulsion or movement of the vehicle that directly caused the alarm to sound. He said that the alarm clearly sounded because the vehicle had been propelled or moved for a sufficient period of time to trigger a random retest. In oral argument, Mr Van Der Wolf emphasised that the only reason he was required to do the retest was because he was driving, and that the retest was required as part of driving the car. He rejected the TAC’s submission that there was no more than a temporal connection between the driving of the car and the sounding of the alarm, saying that it was the driving that precipitated the requirement for a retest.
I asked counsel for Mr Van Der Wolf about the distinction between questions of law and questions of fact made in S v Crimes Compensation Tribunal, and if the question whether facts as found satisfy a statutory test is a question of law or a question of fact.[14] He responded that, while the decision was not the last word on the subject, it was a sufficient word.[15] I understood this to be an acceptance that Mr Van Der Wolf could only succeed on Ground 1 if the Tribunal’s ultimate finding of fact was simply not open on the facts as found.
[14]The authorities on that question point in different directions: Cf, eg, S v Crimes Compensation Tribunal, 89, Brighton Foreshore Association Inc v Bayside City Council [2021] VSCA 284, [34], with Hope v Bathurst City Council (1980) 144 CLR 1, [7] (Mason J), Vetter v Lake Macquarie City Council (2001) 202 CLR 439, [24]–[27] (Gleeson CJ, Gummow and Callinan JJ), R v ACR Roofing Pty Ltd (2004) 11 VR 187, [42] (Nettle JA), Commissioner of State Revenue (Vic) v Arrigo [2016] VSCA 339, [46]–[48]. See also the discussion in Emrys Nekvapil, Thomson Reuters, Victorian Administrative Law, vol 1 (at Service 203), [VCAT.148.260].
[15]Transcript, 19 March 2024, 15:16–24.
TAC’s submissions
The TAC submitted that it was open to the Tribunal to reach the conclusion it did, and that it was not bound to find in favour of Mr Van Der Wolf. It said that the Tribunal comprehensively considered the matters relevant to whether the incident was a ‘transport accident’ as defined in s 3(1) of the Act. The Tribunal’s relevant findings at [63] to [67] and [71] to [78] of the Reasons included findings about the specific operation of the device, how and when the device requested a retest, how and when the alarm sounded in the vehicle, the nature and extent of the device’s impact on the operation of the vehicle, the device log chronology, whether Mr Van Der Wolf was ‘driving’ at the time of the incident, and at what point during the incident the alarm was more likely to have sounded. In light of those findings, the TAC argued, it was open to the Tribunal to find that the sounding of the alarm was not directly caused by the driving of the vehicle.
The TAC characterised Mr Van Der Wolf’s central proposition to be that, but for his driving of the vehicle, the alarm would not have sounded. It referred to the rejection of a ‘but for’ approach in Container Handlers,[16] and said it is not enough that the incident arose out of the use of the vehicle. In the TAC’s submission, the Tribunal properly found that ‘directly caused by the driving’ is more than a ‘but for’ test.[17]
[16]Container Handlers, [64]–[66] (McHugh J).
[17]Referring to Reasons, [77].
Contrary to Mr Van Der Wolf’s argument that the alarm only sounded because the engine was on and he was in the course of driving the vehicle, the TAC argued that the Tribunal relied on cogent and sufficient evidence to find that there was nothing about the propulsion or movement of the vehicle that caused the alarm to sound. It pointed out that the Tribunal specifically found that, although there was a temporal connection between the driving and the alarm sounding, there was no feature of the driving that caused the retest request or the alarm to sound.
The TAC submitted that Ground 1 did not reveal any error of law. It said that the Tribunal had carefully considered the test as informed by the authorities, its application to the facts of the case, and the parties’ submissions, and reached a conclusion that was open on the facts and the law.
Consideration
As Mr Van Der Wolf accepted, he can succeed on Ground 1 only if it was not open to the Tribunal to conclude that the sounding of the retest alarm was not directly caused by the driving of a motor vehicle. He takes no issue with the Tribunal’s exposition of the law concerning the meaning of ‘transport accident’ and does not submit that it misconstrued the Act or misunderstood the relevant authorities.
In the unique circumstances of this case, the question whether the incident was directly caused by the driving of Mr Van Der Wolf’s vehicle was necessarily one of fact and degree. The Tribunal made detailed intermediate findings of fact at [63] to [67] and [71] to [77] of the Reasons, none of which is challenged on appeal. In light of those findings, it appears to me that it was open to the Tribunal to reach its ultimate conclusion at [78] that the incident was not a transport accident. To put it another way, I do 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.[18]
[18]Cf Marsh v Transport Accident Commission (2020) 92 MVR 201, [23]–[43].
The Tribunal concluded that Mr Van Der Wolf was probably ‘driving’ at the time of the incident and accepted that, but for that fact, the incident would not have occurred.[19] However, it correctly noted that this was not enough to establish that the incident was directly caused by the driving.[20]
[19]Reasons, [64], [77] (dot point 1).
[20]Reasons, [46], [77] (dot point 1).
Similarly, the Tribunal found that the fact that the incident occurred while Mr Van Der Wolf was driving did not determine the question of causation. The Tribunal made detailed findings about the operation of the device and the sequence of events leading up to the sounding of the alarm, which allowed it to engage in the fine-grained consideration of causation set out at [77] of the Reasons. The Tribunal was clearly conscious of the temporal connection between the driving of the vehicle and the sounding of the alarm, but found that the alarm sounded independently of any aspect of the driving of the vehicle. It was significant that the vehicle was stationary when the retest was requested, when Mr Van Der Wolf first attempted to retest, and when the alarm sounded. It was also significant that the operation of the device and the sounding of the alarm did not interfere with Mr Van Der Wolf’s driving of the vehicle. In those circumstances, it was open to the Tribunal to find that the sounding of the alarm was not directly caused by the driving of the vehicle.
To answer Mr Van Der Wolf’s rhetorical question, the sounding of the device was directly caused by his failure to complete a retest within the required five minutes, and that failure was not directly caused by his driving of the vehicle.
Ground 1 is not made out.
Ground 2 — Did the Tribunal misapply the definition of ‘transport accident’?
Ground 2 of the proposed appeal asserts that the Tribunal did not properly apply the legislative requirement under s 3(1) of the Act, by wrongly focusing on whether the device 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.
Mr Van Der Wolf’s submissions
In support of his second ground, Mr Van Der Wolf drew attention to the Tribunal’s reliance on the expert evidence about the operation of the device at [10], [11], [61], and [77] of the Reasons. He said that it was beside the point that the device could operate whether or not the vehicle was in motion, and whether or not there was anyone driving the vehicle, because that was not what had happened in his case. He argued that the proper inquiry was not whether the device interfered with the driving of the vehicle, as the Tribunal found at the fifth dot point of [77]. In Mr Van Der Wolf’s submission, the proper inquiry was whether the driving of the vehicle caused the incident involving the device sounding the alarm.
Mr Van Der Wolf took particular issue with [76] of the Reasons, where the Tribunal accepted that having the device fitted was a precondition to him driving the vehicle, but found that this did not mean that the device was a feature of the driving. He said that this misconstrued his submission, recorded at [69] of the Reasons — that the device and its alarm were an essential and integral requirement to the driving of the vehicle.
Mr Van Der Wolf also queried the factual basis for the Tribunal’s finding that the alarm did not interfere with his driving. He referred to the findings at [63] of the Reasons that the sounding of the alarm was stressful to him, and caused the vehicle’s hazard lights to flash. He said that both of these things must have interfered with his ability to drive the vehicle.
TAC’s submissions
The TAC first submitted that a considered reading of the Reasons as a whole disclosed that the Tribunal was well aware of, and took account of, the matters prescribed by s 3(1) of the Act in determining whether the incident was directly caused by the driving of a motor vehicle. It referred to the Tribunal’s statement of the correct test at [1], [7], and [8] of the Reasons, as well as its explanation of the legal framework at [12] to [18] and the relevant case law at [19] to [52].
Second, the TAC said that the Tribunal properly focused on, and directed itself to determining, whether the incident — being the alarm sounding from the device — was directly caused by or was a feature of the driving of the vehicle. It submitted that at no point in the Reasons had the Tribunal misdirected itself about the central question first posed at [7] of ‘whether there is the required direct causation between the incident — the alarm sounding — (and any injuries suffered as a result), and the driving of the vehicle’. In reaching the finding at [76] — that the device was not a feature of the driving, and did not meet the requirement that there be some feature of the driving that directly caused the incident — the TAC said that the Tribunal had applied the test in s 3(1) properly, comprehensively, and without error.
Third, the TAC argued that how the device operates and when it requires a retest was highly relevant to the central question of how and when the alarm came to sound in the vehicle, in order to determine whether the necessary causal link was established. It pointed out that it was ultimately not controversial that the alarm would have sounded whether the vehicle was stationary or in motion, and whether or not Mr Van Der Wolf (or anyone else) was in the vehicle.[21] It said that the Tribunal had found this evidence to be relevant in two ways. First, it meant that it was not sufficient that the incident occurred while Mr Van Der Wolf was driving, absent some direct causal link with some feature of the driving. Second, it was relevant that the device and the sounding of the alarm did not interfere with the driving of the vehicle.
[21]Referring to Reasons, [63] (dot points 6–7).
The TAC disputed that the Tribunal’s reasoning was impugned by the use of the word ‘device’ at [76] of the Reasons. It said that reference to the ‘device’ was clearly a reference to the sounding of the alarm as the feature of the device which was alleged to have caused injury.
Consideration
The essence of Mr Van Der Wolf’s argument before the Tribunal was that the device was a condition precedent to his driving of the vehicle, an essential and integral requirement to the driving of the vehicle, and a feature of the conditions under which he had to drive the vehicle.[22] According to Mr Van Der Wolf, it followed from these matters that the incident was directly caused by the driving of the vehicle.
[22]Affidavit of Nicole Carter dated 17 March 2023, Exhibit NC5, ‘Submissions on behalf of the Applicant dated 28 June 2022, [17], [20], [22]; Exhibit NC8 — VCAT Day 2 transcript, 128:18-139:23.
That argument put in issue the operation of the device, and whether it was integral to the driving of the vehicle. It was in relation to that issue that the Tribunal received the expert evidence about the operation of the device. The Tribunal was addressing the argument at [76] of the Reasons when it said that the fact that the device was a precondition to Mr Van Der Wolf driving the vehicle did not mean that the device was a feature of ‘the driving’, as that part of the definition of ‘transport accident’ had been interpreted.
I do not accept that the statement at [76] of the Reasons demonstrates that the Tribunal misapplied the definition of ‘transport accident’ to the facts of this case. Reading the Tribunal’s Reasons fairly and as a whole, I am in no doubt 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. The Tribunal correctly identified the relevant statutory definitions and gave a clear and comprehensive summary of the relevant authorities, about which no complaint is made.[23] The 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].[24]
[23]Reasons, [1], [12]–[18], [19]–[52].
[24]See also Reasons, [7], [11], [63]–[67], [71], [77]–[78].
Nor do I accept Mr Van Der Wolf’s query about the factual basis for the Tribunal’s finding that the alarm did not interfere with his driving. The Tribunal’s findings of fact at [63] of the Reasons are reproduced at [13] above, and are not challenged on appeal. The eighth dot point in [63] set out the findings about the extent to which the device would interfere with the driving of the vehicle if a retest request is missed. The tenth dot point contained the Tribunal’s findings about what actually happened when the alarm sounded in Mr Van Der Wolf’s vehicle. To repeat:
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.
These findings involved an implicit rejection of Mr Van Der Wolf’s submission to the Tribunal that the sounding of the alarm must have interfered with his driving of the vehicle.[25] It was open on the evidence for the Tribunal to make these findings, and Mr Van Der Wolf did not submit otherwise.
[25]Affidavit of Nicole Carter dated 17 March 2023, Exhibit NC8 — VCAT Day 2 transcript, 127:5-25.
Ground 2 is not made out.
Ground 3 — Were the Tribunal’s reasons adequate?
Ground 3 of the proposed appeal asserts that the Tribunal failed to give proper reasons, by failing to identify:
(a) the findings made in respect of expert evidence in relation to the device that were material to the ultimate conclusion that the incident was not directly caused by the driving of the motor vehicle; and
(b) the path of reasoning from such findings as were made based on the expert evidence, to explain how those findings supported the ultimate conclusion that the incident was not directly caused by the driving of the motor vehicle.
Mr Van Der Wolf’s submissions
Mr Van Der Wolf submitted that if Ground 2 failed, that would leave unexplained how the Tribunal used the expert evidence, or why it considered that evidence to be ‘highly relevant’.[26] He said that the Reasons did not expose the path of reasoning from the expert evidence about the operation of the device to the ultimate conclusion in respect of causation, and the Reasons were therefore inadequate.
[26]Referring to Reasons, [10].
TAC’s submissions
The TAC referred to s 117 of the VCAT Act, which required the Tribunal to give reasons for its decision, including its findings on material questions of fact. It accepted that the Tribunal would commit appellable error if it gave reasons that omitted a finding on a material question of fact or otherwise failed to disclose its path of reasoning for reaching its decision.[27] It said that reasons might be adequate even though the Tribunal did not set out every piece of evidence and explain why it had been accepted or rejected; a common sense approach is required.[28] The TAC emphasised that the Tribunal’s Reasons should be read sensibly, not pedantically. Reasons will normally be adequate if they expose the logic of the decision, and contain findings of fact on matters essential to that logic.[29]
[27]Referring to Victoria v Turner [2009] VSC 66, [237]–[241] (Turner).
[28]Referring to Hunter v Transport Accident Commission [2005] VSCA 1, [21] (Nettle JA).
[29]Referring to Dodds v Comcare Australia (1993) 31 ALD 690, 691.
Having referred to the standard of reasons required of the Tribunal, the TAC then submitted that the Reasons in this case clearly, comprehensively, and more than adequately set out the Tribunal’s conclusions and findings on questions of fact and explained how those findings had been reached. It said that the path of reasoning based on the expert evidence about the operation of the device was exposed at [63] of the Reasons, and was abundantly clear. The logic of the decision was readily apparent, and the Reasons contained findings of fact essential to that logic.
Consideration
Section 117 of the VCAT Act obliges the Tribunal to give reasons for its decisions that identify the issues in dispute, deal with the substantial points raised, include findings on material questions of fact, refer to the evidence on which those findings are based, and provide ‘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’.[30]
[30]Dimatos v Coombe [2011] VSC 619, [20]; see also Turner, [239]–[240].
The Tribunal’s Reasons in this case meet that standard. The path of reasoning from the evidence to the findings to the ultimate conclusion, that the incident was not a transport accident, is admirably clear.
There is no mystery about the significance of the expert evidence to the Tribunal’s ultimate conclusion. Mr Van Der Wolf’s central argument was that the operation of the device was integral to the driving of the vehicle; he said further that it must have interfered with his driving of the vehicle. Both parties called expert evidence about the operation of the device, which was outlined at [55] and [59] to [62] of the Reasons. Based on that evidence, the Tribunal made the findings recorded at [63] of the Reasons. Those findings enabled the Tribunal to deal with Mr Van Der Wolf’s arguments about the relationship between the operation of the device and the driving of the vehicle, at [76] and at the fourth to sixth dot points of [77], leading to its ultimate conclusion at [78]. As the TAC submitted, the logic of the decision is readily apparent.
Ground 3 is not made out.
Application to extend time
As mentioned, Mr Van Der Wolf commenced this proceeding one day outside the 28 day time limit set by s 148(2) of the VCAT Act, and seeks an extension of time under s 148(5). Factors relevant to the Court’s discretion to extend time include the length of the delay, the reason for the delay, the extent of any prejudice to the respondent, and whether there is an arguable case.[31] No one factor is determinative, and the overriding consideration is the interests of justice.
[31] Muto v Secretary to the Department of Planning and Community Development (2013) 38 VR 293, [13].
Here, the delay was short and resulted in no prejudice to the TAC. The reason for the delay was an error made by Mr Van Der Wolf’s solicitor in calculating the time for filing the notice of appeal.[32] Although they were not successful, Mr Van Der Wolf’s grounds of appeal were all arguable. I consider that the interests of justice are best served in this case by extending the time to commence the proceeding to 16 February 2023.
[32]Affidavit of Ryan Thomas Moran dated 18 March 2024.
Disposition
Because the grounds of appeal were arguable, I will grant leave to appeal. However, none of the grounds was made out and so the appeal must be dismissed.
I will hear the parties on the question of costs.