Smith v Transport Accident Commission

[2005] VSCA 251

Victorian Court of Appeal

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Interrogate

Catchwords

1. Accident Compensation
2. › Transport accident
3. › Motor vehicle
4. › Definition
5. › Whether vehicle 'used on a highway'
6. › Whether use must be at time of accident or normal and repeated use
7. › Transport Accident Act 1986 (Vic), s 3
8. › Road Safety Act 1986 (Vic), s 3(1)
1. Accident Compensation
2. › Transport accident
3. › Motor vehicle
4. › Bulldozer used in logging operations
5. › Use on forest C class roads
6. › Whether normal or repeated use on highway established on the evidence
1. Practice and Procedure
2. › Precedent
3. › Stare decisis
4. › Whether intermediate appellate court should depart from its own previous decision
5. › Long-standing authority relied upon administratively and in litigation
6. › Whether change should come from legislature

Quick Take

The test for whether a vehicle 'is used on a highway' under the Transport Accident Act 1986 (Vic) remains the Serbec test: the question is whether the vehicle is normally or repeatedly used on a highway, not whether it was being used on a highway at the time of the accident. Isolated use on a single occasion is ordinarily insufficient. For off-road vehicles such as bulldozers, all types of use on a highway may be aggregated (including walking between work sites, road maintenance, clearing timber, and emergency use). The Court unanimously signalled that the legislative test is unsatisfactory and requires urgent parliamentary attention.