Koutroulis v Transport Accident Commission [2011] VSC 159 caught my interest for two reasons.

The first was because it dealt with an unfortunate accident involving on a bus. Being on the bus is often used as a management metaphor for being a team player, although that’s not what Jim Collins (the author of the metaphor) meant when he wrote it.

The second and more pertinent for legal purposes is that the case considered afresh the meaning of “driving” when interpreting legislation.

A passenger bus stopped at a bus stop. Mrs Koutrolis got off at the front door. Her 7-year-old son — not very practiced at getting off buses — followed. She reached in to help her boy down. The bus driver intended to close the back door, but mistakenly hit the wrong button, and closed the door on Mrs Koutrolis’ arm. She was injured.

Ultimately, that injury was declared by VCAT to be a transport accident under the Transport Accident Act 1986, which prevented Mrs Koutroulis from suing for common law damages rather than receiving compensation under the transport accident scheme. Mrs Koutroulis appealed that finding.

Kaye J considered it was not a transport accident, reversing VCAT’s decision. That involved considering a transport accident, defined in the Transport Accident Act 1986 s 3(1) as:

an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram

His Honour reviewed several of the leading authorities on driving, including Tink v Francis; Hughes v McFarlane; Harris v Broadbent [1983] 2 VR 17.

After reviewing the cases, His Honour concluded that driving concerned the propulsion or movement of a vehicle.

[32] For the purposes of this appeal, a number of simple propositions may be derived from the authorities, to which I have just referred. In particular, it is accepted that the core meaning of “driving” consists of the propulsion or movement of a vehicle. Thus, the driving of a vehicle includes those steps undertaken by the driver which concern the propulsion or movement of the vehicle. Further, the decision of the Full Court in relation to Mrs Bizewski, in Transport Accident Commission v Treloar [1992] 1 VR 477, demonstrates that the concept of “driving” does not conclude at the point at which there is a cessation of propulsion or movement of the vehicle. It includes, at the least, those activities which are necessarily related to the completion of the propulsion or movement, such as engaging the correct gear and braking mechanism, and turning off the ignition. In addition, as the examples given by Mr Solomon in his argument demonstrate, a vehicle may be understood to be driven, notwithstanding that it is temporarily stationary in the course of a journey. Equally, it would follow that it would be inaccurate to maintain that driving does not commence until the moment at which the vehicle begins to move. There are steps, antecedent to movement or propulsion, which are so necessarily connected with it, that they are, in ordinary parlance, understood to be part of the driving of the vehicle.

[33] On the other hand, in its ordinary and natural meaning, “driving” is not understood to include all the steps which are antecedent to the movement or propulsion of the vehicle; nor is it understood to include all the steps which a driver may take in respect of the vehicle, after propulsion or movement has ceased. In particular, in its ordinary meaning, driving does not include steps, which, in time, precede the movement of the vehicle, and which are no more than preparatory to it. In order that a step, which is antecedent to the propulsion or movement of the vehicle, be properly characterised as part of the driving of the vehicle, it must be a step “which is sufficiently closely connected with the driving of the vehicle in a mechanical or functional sense as distinct from a temporal sense”.

[34] There is, however, no “bright line” which, in ordinary discourse, clearly demarcates those activities, which are commonly understood to be included in the driving of a vehicle, and those activities which would be more properly described as being preparatory or antecedent to that function. Thus, there may be room for disagreement between reasonable minds in respect of some of the steps, which necessarily precede the movement or propulsion of the vehicle. However, that will not always be the case. It is possible to postulate a number of steps, which may precede the commencement of the movement or propulsion of a vehicle, but which could not be properly understood to be part of the driving.

This doesn’t lay down a binding rule that a vehicle must be moving under direction or control by a person for it to be driving. And this particular case was in the context of determining a transport accident case, rather attributing criminal liability.

But it does provide some further guidance about conduct that might fall within the scope of driving under the Road Safety Act and Road Rules.

Of course, many driving offences operate more broadly. For example, as discussed here (in DPP v Farmer), drink-driving offences apply to a person driving or in charge of a motor vehicle. Using a mobile phone is an offence when driving or in a stationary vehicle that isn’t parked.

But a great many offences do occur only when driving, and so may warrant closer examination in some cases.