Wisewould Mahony. A Double Header Smack Down. Wisewould Mahony Lawyers

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1 Wisewould Mahony A Double Header Smack Down Wisewould Mahony Lawyers

2 TRANSPORT ACCIDENT VS ARRISING OUT OF THE USE OF, AKA: SECTION 137(5A) V SECTION 138 A DOUBLE HEADER SMACK DOWN! PURPOSE The purpose of the paper is to examine the situations in which recovery may be pursued from the TAC. The options are essentially twofold. One may either pursue direct recovery in accordance with section 137(5A) of the Accident Compensation Act 1985, or pursue recovery under section 138 of the Accident Compensation Act 1985 in accordance with the indemnity provided under section 94 of the Transport Accident Act LEGISLATION Section 137(5A) of the Accident Compensation Act Liability of the TAC Section 137(5A) of the Accident Compensation Act 1985, is the provision which establishes a direct right of recovery against the TAC. Section 137(5A) establishes, if- (a) (b) the Authority is required under this Act to pay an amount of compensation in respect of the death or injury of a worker arising out of a transport accident within the meaning of section 3 of the Transport Accident Act ; and the Transport Accident Commission would, if no compensation were payable under this Act... have been liable to make payments in respect of that death or injury under the Transport Accident Act 1986; the Transport Accident Commission shall...be liable to make payment to the Authority of an amount equal to the total amount of compensation paid or payable under this Act. Essentially, this provision allows the VWA to recover compensation monies from the TAC where the death or injury of a worker arises out of a transport accident within the meaning of Section 3 of the Transport Accident Act Section 3 of the Transport Accident Act Definitions As a necessary precursor to further discussion, we need to move to consider the statutory defi nitions contained in section 3 of the Transport Accident Act, in order to determine, which accidents will fall within the ambit of section 137(5A).

3 Transport Accident Transport accident, as defi ned by section 3 of the Transport Accident Act, means an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram. Motor Vehicle Motor vehicle is defi ned by way of a two arm test, fi rstly, a vehicle that is used or intended to be used on a highway and, secondly, a vehicle that is built to be propelled by a motor that forms part of the vehicle. Highway Is defi ned as a road or road related area, where road is broadly defi ned as meaning- (a) (b) an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles; any bridge, tunnel, causeway, road-ferry, ford or other work or structure forming part of a road system or supporting a road... Furthermore, a road related area casts an even wider net and is defi ned to mean- (a) (b) (c) (d) an area that divides a road; or a footpath or nature strip adjacent to a road; or an area that is open to the public and is designated for use by cyclists or animals; or an area that is not a road and that is open to or used by the public for driving, riding or parking motor vehicles. CASE LAW - The Smack Down! Once the parameters of the statute are understood, it is necessary to move to a consideration of the nuances of the case law to more conclusively determine, which accidents will fall within the parameters of section 137(5A).

4 Definition of Transport Accident - directly caused by the driving of... Perhaps the most pivotal discussion arising out of the case law for our purposes is the exploration of the statutory test of causation directly caused by the driving of In the Transport Accident Commission v Jewell 1995, the VSC considered the statutory test of causation and concluded that an incident need not occur in the course of the driving of a motor vehicle in order that it may be said to have been directly caused by the driving. However, there must be some causal connection, temporal or otherwise, suffi cient to prove that the driving directly caused the injury. In the case of Transport Accident Commission v Iacuone 1998, the VSC developed the test further, commenting the court considered it a question of fact as to whether an injury arises out of the use or the driving of a vehicle and the question is one of degree. In circumstances where the causal test is to be won or lost on close analysis of the facts, I thought it would be helpful and informative to turn to a consideration of the factual circumstances of some of the cases that have gone before the courts on this point, and in keeping with the title of my paper, engage in somewhat of an intellectual smackdown, in relation to the outcome of the cases. I m hopeful that this exercise may illustrative of one of the main points seek to make in this presentation, but I won t pre-empt that, I won t force the conclusion Call for volunteers The smackdown is very straightforward, I m going to present very briefl y the factual circumstances of a case where a decision has been handed down and then ask, just based on our general knowledge as lawyers, whether we consider a causal connection has been established on the facts. Case Study 1 Jewell Re-wiring Ignition The plaintiff in this matter had driven his truck into a shed with the intention of parking it there, whereupon he noticed that the ignition key had broken off in the switch. He switched the engine off by pulling out the stopper, and then removed the ignition assembly and replaced it. Later in time, in order to check that he had correctly rewired the ignition switch, while leaning into the engine compartment from the side of the truck, he turned a spare key in the ignition, as a result, the truck moved forward crushing and injuring the plaintiff.

5 Based on this factual scenario, do you consider that a causal connection between the incident and the driving has been established on the facts? In this instance, the VSC ruled that the causal connection had been established. The incident was found to be directly caused by the driving of the truck. Case Study 2 - lacuone - Glass in Foot In this case a motor vehicle collided with a tree in front of the plaintiff s home. The plaintiff walked barefooted to the scene of the accident to attend to those injured. As a result, a piece of glass from the windscreen of the vehicle became embedded in the plaintiff s foot. He suffered a number of complications as a result of this injury and ultimately his left leg was required to be amputated because it was gangrenous. Based on this factual scenario, do you consider that a causal connection between the incident and the driving has been established on the facts? At fi rst instance the Tribunal found that the injury was directly caused by the driving of the vehicle. On appeal the Supreme Court upheld the Tribunal s decision noting that it could not be said that it was not open to a reasonable Tribunal, applying the correct test of causation, to reach the conclusion that it did on the ultimate question of fact relating to causation. Case Study 3 - William John Billett [2004] VSC - Leaning into Truck The plaintiff in this matter was conducting repairs on a truck owned by his son. He had driven the truck a short distance from the machinery shed out into the yard to work on the lights. He parked the truck at an angle immediately behind his son s station wagon. Initially he kept the engine of the truck running to charge the battery. After about an hour, he turned the engine off, but left the key in the ignition, the truck in gear and also failed to engage the handbreak properly or at all. When he had completed the necessary works he leaned back into the truck to turn the ignition on, he was standing outside the truck and had the door open as he did this. Once the ignition had engaged the engine started and the truck moved forward causing him to become caught between the front of the tray of the truck and the station wagon Critical question was whether the incident in which the plaintiff sustained his injury was directly caused by the driving of the truck.

6 Do the factual circumstances satisfy the causal test of direct or predominant cause? At fi rst instance the Tribunal found that all but the last action of turning the ignition were a part of the driving of the truck and also the predominant causes of the incident. The Tribunal s reasons noted that even if the last act of turning the key in the ignition is not to be regarded as part of the driving of the vehicle, all other matters played a direct role in the causation of the injury. The Tribunal found that the lapse of time between the turning off of the engine and the injury did not impair the fi ndings as to a causal link between the driving of the truck to the place where it was parked and the injury. This matter was appealed. The appeal ultimately failed on technical points, which I won t detail, but the Supreme Court did turn there mind to the outcome of the case if the appeal didn t fail on technical points and included obiter comments indicating that the mere fact of parking the truck at an angle to the station wagon would not be suffi cient to constitute that act of driving as a direct cause of the incident. The direct cause of the accident in the sense discussed by the authorities was the truck suddenly lurching into motion when the ignition was started. Conclusion Where decision making is based on the factual circumstances and nuances of each particular case, outcomes may be varied. In these circumstances, I consider that we ought to be encouraged to put forward argument based on the facts, and include in our advices, factual analysis directed toward establishing a causal connection, as is evidenced by the outcome of case law, the ultimate arbiter of fact may just as easily agree with our construction as disagree. Section 94 of the Transport Accident Act 1986 Indemnity - arising out of the use of... Failing to fi t a matter within the ambit of the defi nitions in section 3 of the Transport Accident Act.1986, does not foreshadow the end of recovery prospects from the TAC, as the circumstances in which an indemnity must be given under section 94 of the Transport Accident Act 1986 are broader than the circumstances in which section 3 is called into play. 94(1) The Commission is liable to indemnify- (a) the owner or driver of a registered motor vehicle in respect of any liability in respect of an injury or death of a person caused by or arising out of the use of the motor vehicle in Victoria or in another State or in a Territory; and

7 (b) the operator, owner or driver of a railway train or tram and the manager of the railway or tramway on which a railway train or tram is operated... 94(7) If liability has been incurred to a person by an owner or driver in respect of which the commission is liable under this section to indemnify the owner or driver and the (a) cannot be identifi ed; or (b) is dead or cannot be found or, in the case of a corporation, has been wound upthe person may recover against the Commission a sum equivalent to the amount for which the person could have obtained a judgment against the owner or driver or equivalent to the amount of the liability of the Commission under the indemnity, whichever is the lesser. Essentially, section 94 provides that the Transport Accident Commission is liable to indemnify an owner or driver of a registered motor vehicle in respect of any liability, in respect of an injury to or death of a person caused by or arising out of the use of a motor vehicle. Caused by or arising out of the use of a motor vehicle, does not convey the immediacy of relationship between driving and injury, which is dictated by the phrase directly caused by the driving of a motor vehicle. The wider reach of section 94 can also be gleaned by the words twice used in respect of as they have been defi ned through case law as ordinarily the language of broad connection. Section 94 essentially extends the parameters of circumstances in which we can recover from the TAC to the broader description of injury or death caused by or arising out of the use of a motor vehicle. However, it should be noted that this is not a complete right of recovery and is pursued in accordance with the formula set out under section 138 of the Accident Compensation Act 1985, and within the necessary limitations prescribed by section 94, pertaining to owner, driver, operator etc.

8 Diane Hynes v Peter Hynes [2007] VSCA 7 In this case the plaintiff was injured when her husband released the radiator cap of his vehicle and hot water escaped striking the plaintiff and causing injuries, including burns on her back, left shoulder, left side of her face and scalp, resulting in residual scarring and disfi gurement and psychological upset. Given the facts of the case, the injury to the plaintiff, was not considered to have been directly caused by the driving of a motor vehicle and therefore was not a transport accident, as that term is defi ned in section 3 of the Transport Accident Act. It was however, considered that injury to the plaintiff was caused by or arose out of the use of a motor vehicle. Leisa Glass Solicitor Wisewould Mahony Lawyers 419 Collins Street Melbourne VIC 3000 p f leisa.glass@wisemah.com.au