Not ‘directly caused by the driving’
The Court of Appeal has again considered the definition of ‘transport accident’ contained in the Transport Accident Act 1986 (Vic) (“TA Act”).
Factual background
On 26 April 2016, a worker was injured when he tripped over a stack of reinforced steel mesh sheets at a construction site occupied by the applicant.
The worker had driven to the site to deliver an industrial skip bin. Having reversed the rear tyres over the mesh sheets, he parked the truck such that its front wheels were clear of the sheets.
The worker alighted the vehicle onto a dirt surface. He walked along the driver’s side towards the rear to check whether he could unload the bin. After taking a few steps on the dirt, he stepped onto the mesh sheets. After taking about five steps, being about halfway down the side of the truck, he tripped on the mesh and sustained injury.
County Court Decision
Section 3 of the TA Act defines ‘transport accident’ as ‘an incident directly caused by the driving of a motor car or motor vehicle… ’
On 17 December 2021, the primary judge determined the worker’s injuries did not arise out of a ‘transport accident, because the required element of locomotion, movement or some ‘active process’ was absent.
Furthermore, distinct from authorities where passengers were injured immediately upon alighting a passenger bus, the judge noted the worker had walked ‘some distance’ before falling. Such circumstances lacked the requisite element of immediacy to satisfy the causal test of ‘directly caused by the driving.’
Proposed grounds of appeal
The applicant sought to appeal the decision on the grounds that the primary judge:
- Erred by finding the incident was not directly caused by the driving of the truck.
- Erred by failing to conclude that the place where the worker parked the truck provided the necessary causal nexus with the driving of the truck.
- In finding the incident was not directly caused by the driving of the truck, the judge:
a. Misconstrued the legal test contained in section 3 of the TA Act, by concluding:
i. the vehicle was not being ‘driven’ at the time of the incident;
ii. there was no ‘inevitability’ of accident;
iii. there was ‘the absence of the necessary immediate direct proximate connection between driving and [the] incident’;
b. Relied on findings, against the weight of the evidence, that:
i. The driver was ‘some distance’ from the truck when he fell;
ii. It was ‘entirely incidental’ that the driver had to exit the vehicle to check where it was parked.
Court of Appeal decision
The Court of Appeal (McLeish JA, T Forrest JA and J Forrest AJA) confirmed the leading authority on the definition of ‘transport accident,’ is that of the High Court in Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89.
The Court of Appeal ultimately said the following with respect to the meaning of ‘driving’:
“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.”
With respect to the necessary ‘direct’ connection between the driving and the incident, the Court agreed with the primary judge that the connection was insufficient because:
a. the truck was stationary and placed in park.
b. it is irrelevant the engine was left running as it was not propelled or moving at the time of the incident.
c. the incident did not occur when the worker alighted the vehicle directly after the driving had ceased.
d. The worker was not endeavouring to engage or prepare the truck for movement.
e. The incident was a result of the worker’s decision to inspect the area, the path he took to carry out the inspection and the presence of the mesh on that path, all of which were unrelated to the driving of the truck.
f. The worker was spatially and temporarily removed from driving the vehicle.
Outcome
Leave to appeal was refused.
The circumstances of the incident did not satisfy the definition of ‘transport accident.’ Furthermore, the Court of Appeal specifically rejected the proposition that the primary judge misconstrued the relevant legal test.
Container Handlers is the leading authority on the meaning and scope of the definition of ‘transport accident.’ Earlier decisions such as Pedersen and Iacuone must be treated with caution. However, it is the particular factual matrix that will determine whether circumstances fall within or outside the scope of the definition of ‘transport accident.’
Foursquare Construction Management Pty Ltd v Victorian Workcover Authority [2022] VSCA 237
If you have any queries, please contact Chantel Cunningham on 9612 7279
