The concept of 'driving' has been considered in a number of previous cases from the various CTP jurisdictions throughout Australia. The High Court decision of Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89 is widely regarded as the leading authority on the meaning of 'driving'. In that matter, the High Court considered whether injuries suffered as a result of a motor vehicle accident were caused by the driving of a motor vehicle within the meaning of the relevant West Australian legislation. That requirement was modified by a further provision that the injury shall not be taken to have been caused by a vehicle if it is not a consequence of the driving of that vehicle or the vehicle running out of control.

In Container Handlers, the High Court found that in the context of the West Australian legislation, 'driving' has a wide meaning and refers to a consequence of the operation and control of the direction and speed of the vehicle, which includes while a driver is in the course of putting it into, keeping it in, or bringing its motion to a conclusion. The Court also held that it extends to activities conducted by the driver in directing the course of the vehicle movement by operating the controls (such as preparing to start, starting, accelerating, braking, giving appropriate signals, operating a horn and lights appropriately, stopping and turning the engine off).

O’Connor v Motor Accidents (Compensation) Commission [2017] NTSC 36

The concept of 'driving' was recently further considered by the Motor Accidents (Compensation) Tribunal (the Tribunal) of the Northern Territory in O’Connor v Motor Accidents (Compensation) Commission. A no-fault CTP compensation scheme operates in the NT for injuries arising out of motor vehicle accidents and certain common law rights have been abolished. Despite being a no-fault CTP scheme, the applicable legislation provides for the exclusion from entitlement to certain benefits of those who fall into identified classes of drivers, including unlicensed drivers.

Mrs O’Connor was seriously injured when a vehicle driven by a drunk driver collided with her while she was seated on a stationary motorcycle on the edge of a public road in Alice Springs. The Commission determined that Mrs O’Connor was not entitled to certain compensation on the ground that the relevant accident occurred whilst she was unlicensed and 'driving' the motorcycle on which she had been seated. While Mrs O’Connor acknowledged that she did not hold a licence to ride the motorcycle, she argued that she was not 'driving' it at the relevant time.

The relevant facts leading to the accident were as follows. Mrs O’Connor stopped the motorcycle just off the roadway. She placed the motorcycle in neutral, put her feet on the ground and spoke with her husband. The engine of the motorcycle continued running. Mrs O’Connor then manoeuvred the motorcycle onto the bitumen by using her feet. She did not use the engine or the gears but the left indicator and rear brake light were on throughout. At the time of the accident, Mrs O’Connor was seated on the motorcycle with her two feet on the ground and her left hand either resting on the petrol tank or on her leg. The motorcycle was in neutral and Mrs O’Connor’s right hand was on the handlebar with the front brake engaged.

As 'driving' was not defined in the applicable NT legislation, the Tribunal held that the term should bear its ordinary, everyday meaning. The Tribunal also noted that the NT legislation also did not contain a further modifying provision such as that contained in the West Australian legislation (and considered by the High Court in Container Handlers).

The Tribunal found that the circumstances of the matter lead to a clear conclusion that, at the time of the accident, Mrs O’Connor was not driving the motorcycle. The Tribunal found that the driving which Mrs O’Connor had undertaken at an earlier time had been interrupted when she stopped the motorcycle by the side of the road. This was not a momentary interruption but, rather, the episode of driving came to an end for a time.

The Tribunal found that the break lasted five or more minutes and did not involve any activity that could be described as 'driving'. Furthermore, the use of the left indicator during that time strongly suggested she was not driving or intending to drive. Mrs O’Connor was not causing the motorcycle to move and she was not guiding or directing its movement.

The Tribunal said that in order to resume driving Mrs O’Connor would have been required to turn off the left indicator, activate the right indicator and then to have engaged first gear and accelerated in order to place the motorcycle in motion. As Mrs O’Connor did none of those things – nor anything preparatory to doing any of them – the Tribunal found that the conclusion that she was not driving at the relevant time accorded with the natural meaning of the words used in the exclusionary provision.

Implications for you

The decision in O’Connor arose from a no-fault CTP scheme where the Commission had the burden of proving that an exclusion applied. Further, as the Commission alleged that Mrs O’Connor committed an offence (being the offence of driving unlicensed), clear and cogent evidence was required in order to discharge that burden of proof.

The Tribunal applied a much narrower meaning to the term 'driving' than the High Court in Container Handlers. Subject to the applicable legislative framework, we suggest that the result might be different if the same factual matrix arose in a common law CTP jurisdiction where the injured person was required to prove that the relevant injury occurred as the result of the 'driving' of a motor vehicle. In our view, 'driving' is likely to be given a wider meaning.

This decision highlights that each 'driving' case must be considered in light of the particular legislative framework that applies in the relevant CTP jurisdiction and it will usually be a question of fact and degree as to whether an injury occurred as the result of the 'driving' of a motor vehicle.