Case review – what is a transport accident for the purposes of a TAC claim?

In this article, we explore an interesting case where a driver’s TAC claim ultimately failed. The original claim was lodged some years ago and denied by TAC. The claimant appealed that decision to the Victorian Civil and Administrative Tribunal (“VCAT”) and was unsuccessful. Still not satisfied with the decision, he appealed to the Supreme Court of Victoria… and failed again. The Court determined that the claimant may have suffered an injury while driving, but the act of driving the motor vehicle itself was not the cause of the injury – a subtle but very important point.

In 2016, Ronald Van Der Wolf lost his driver’s licence for drink driving. The Court made orders that he be allowed to return to driving in July 2017 on the basis that any vehicle he drove be fitted with an interlock system – designed to prevent him from driving with alcohol in his system.

This meant that to start the car engine, Mr Van Der Wolf had to pass a breath alcohol test, and had to pass retests at random times while the engine was running.

On 1 September 2017, Ronald Van Der Wolf was driving on the Maroondah Highway when the interlock system requested a retest. Because of heavy traffic, he did not complete the retest within the required 5-minute timeframe, causing the system alarm to sound for about 45 seconds until he successfully retested.

He alleged that the sudden and very loud alarm caused him hearing loss, tinnitus, and psychological distress.

He made a TAC claim for benefits on the basis that he had suffered injuries “directly caused by the driving of a motor vehicle”.

The TAC made a decision denying the claim.

This was in part on the basis that it was Mr Van Der Wolf’s failure to retest using the interlock system, rather than the driving of the vehicle, which were the cause of any injuries suffered.

Mr Van Der Wolf had 12 months to appeal that decision.

Mr Van Der Wolf appealed the decision to the Victorian Civil and Administrative Tribunal, which in 2022 rejected his claim by making an order affirming the TAC’s decision and finding:

[T]hat 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.

Mr Van Der Wolf then appealed VCAT’s decision to the Supreme Court of Victoria.

The Transport Accident Act (“the Act”) creates a compensation system for people who are injured or die as a result of transport accidents. 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’.

The terms ‘injury’ and ‘transport accident’ are both defined in the Act, 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;

The central issue in the case on appeal to the Supreme Court was whether the sounding of the alarm was directly caused by the driving of the vehicle.

Mr Van Der Wolf argued that the interlock system test was a precondition for driving the vehicle (akin to putting the vehicle into gear) and that as a result, it was an essential and integral part of driving the vehicle.

The TAC argued, relying on expert evidence, that the alarm would have sounded whether Mr Van Der Wolf’s vehicle was moving or stationary, and that the failure to retest did not alter the driving of the vehicle in any way.

The Court agreed with the TAC and VCAT, finding that the sounding of the alarm (and any injuries caused by the alarm) were not directly caused by the driving of the vehicle.

Mr Van Der Wolf’s lawyers posed the question:

‘If the sounding of the device was not directly caused by the driving of the vehicle, how otherwise was it caused?’

The Court made clear that the alarm sounded because Mr Van Der Wolf failed to complete the retest within five minutes while his engine was on and he was driving, but that the alarm would have sounded if he was stationary, and that the injuries were therefore not caused directly by the vehicle being driven.

Mr Van Der Wolf may have been injured while driving, but not because of the driving of his car.

He was unsuccessful in his appeal as a result of the Supreme Court decision.

You can read the full decision of Van Der Wolf v Transport Accident Commission [2024] VSC 296 (5 June 2024) here