Background – Mr Van Der Wolf’s Claim
In 2016, following a drink driving conviction, Mr Van Der Wolf was required to have an alcohol interlock device installed in his vehicle.
The interlock was designed to stop a driver from driving the vehicle with alcohol in their system. To start the engine, Mr Van Der Wolf had to pass a breath test, followed by two random retests after the engine was running. The retests had to be completed within five minutes of the request. If the driver failed to do so, the vehicle’s alarm and hazard lights would activate, though the engine would keep running.
On 1 September 2017, Mr Van Der Wolf was driving his van and was prompted by the interlock to perform a retest. He parked his van in a side street to complete the retest but failed to do so in the required five minutes. The van’s alarm sounded for approximately 45 seconds until he successfully completed the retest.
Mr Van Der Wolf alleged that because of the incredibly loud volume of the alarm, he suffered hearing loss, tinnitus and developed an associated psychological reaction. He lodged a TAC claim for benefits for injuries ‘directly caused by the driving of a motor vehicle’.
What happened next?
The TAC did not accept that Mr Van Der Wolf’s injuries were directly caused by the driving of a motor vehicle, and his claim was denied.
Mr Van Der Wolf disputed TAC’s decision at the Victorian Civil and Administrative Tribunal (VCAT), however the Tribunal agreed with the TAC. Mr Van Der Wolf then appealed the Tribunal’s decision, but the appeal was dismissed.
Mr Van Der Wolf persisted, and the case was eventually heard before the Supreme Court of Victoria, Court of Appeal.
The Supreme Court’s Decision
The central issue in Mr Van Der Wolf’s case was whether his injuries were directly caused by the driving of a motor vehicle.
Under the Transport Accident Act (‘the Act’) a transport accident is defined as ‘an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram;’
Mr Van Der Wolf claimed that the interlock interfered with his ability to drive the vehicle and that the alarm activated only because he was driving and wanted to keep driving.
The TAC argued, relying on expert evidence, that the operation of the interlock was not connected to the actual driving of the vehicle. The alarm would have sounded regardless of whether the vehicle was in motion or stationary. Whilst the operation of the interlock device was undoubtedly associated with the use of Mr Van Der Wolf’s vehicle, the TAC maintained that it was not otherwise connected to the act of driving itself. The TAC asserted that the alarm was activated by Mr Van Der Wolf’s failure to complete the retest, not by the driving of the vehicle.
The Court conducted a thorough analysis of the operation of the interlock and reached the conclusion that for an incident to satisfy the definition of a transport accident under the Act, there must be direct connection between the injury and the ‘movement or propulsion’ of the vehicle. A close connection with the use of the vehicle is not enough – the injury must result from the act of driving the vehicle.
The Court agreed with the TAC and VCAT and held that Mr Van Der Wolf’s injuries were not caused by the driving, movement or propulsion of the vehicle. Instead, they were caused by Mr Van Der Wolf’s failure to complete the retest in the required time. It was held that the function of the interlock had no connection with the driving of the vehicle, and that the alarm would have sounded regardless of whether Mr Van Der Wolf was driving or had control of the vehicle.
The Court found that Mr Van Der Wolf’s injuries may have arisen out of the use of the vehicle, however, were not caused by the driving of the vehicle.
Mr Van Der Wolf’s appeal was dismissed.
Key Takeaways: Causation Matters
This case clarifies that the Court requires a direct connection between the driving of the vehicle – that is, the propulsion, movement or control of the vehicle - and the incident which causes the injury. Simply being in the vehicle or using the vehicle at the time of injury is not enough.
How we can help
Navigating the rules around what classifies as ‘driving’ for the purposes of a TAC claim can be complex. Our team at Robinson Gill Lawyers is uniquely positioned to help you through the process, understand your entitlements and support you in pursuing the compensation you deserve.
This article was written by Rhythm Kahal.
How can I learn more?
Rhythm is a dedicated, approachable and empathetic lawyer in our Injury Law Team.
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