Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Andy's Earth Works Pty Ltd v Verey [2012] NSWCA 32
• Hearing dates: 8 December 2011
• Decision date: 08 March 2012
• Before: Beazley JA at [1]; Macfarlan JA at [8]; Whealy JA at [40]

Decision

(1) Leave to appeal granted.

(2) Direct that within fourteen days of the date of this judgment the applicant file and serve a Notice of Appeal in the form of the draft provided to the Court.

(3) Set aside the finding of the primary judge that the excavator referred to in Mr Verey's Statement of Claim was a "motor vehicle" within the meaning of the Motor Accidents Compensation Act 1999.

(4) Judgment for the applicant in the District Court proceedings brought by Mr Verey.

(5) Order Mr Verey to pay the applicant's costs of the proceedings at first instance and on appeal.

(6) Mr Verey to have a certificate under the Suitors' Fund Act 1951, if qualified.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: MOTOR ACCIDENTS COMPENSATION - worker claimed from his employer damages under the Motor Accidents Compensation Act 1999 in respect of injury suffered in the course of his employment whilst a passenger in the bucket of an excavator - whether the excavator was a "motor vehicle" as defined in the Act - whether the excavator was a vehicle "on wheels" within the meaning of the Road Transport (General) Act 2005
• Legislation Cited: Motor Accidents Compensation Act 1999; Road Transport (General) Act 2005; Road Transport (General) Amendment (Tracked Vehicles) Regulation 2011
• Cases Cited: Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86; Doumit v Jabbs Excavations Pty Ltd [2009] NSWCA 360; 54 MVR 332; Fawcett v BHP By-Products Pty Ltd [1960] HCA 59; 104 CLR 80; Grygorcewicz v Broken Hill Proprietary Co Ltd [1963] NSWR 1205; 80 WN (NSW) 828; Nguyen v Nguyen [1990] HCA 9; 169 CLR 245
• Category: Principal judgment
• Parties: Andy's Earth Works Pty Ltd (Appellant); Wayne Leslie Verey (Respondent)
• Representation: Counsel: K Rewell SC/G Smith (Appellant); P Maiden SC/J Cairn (Respondent); Solicitors: Mersal & Associates Pty Ltd (Appellant); Herbert Weller Solicitor (Respondent)
• File Number(s): CA 2009/337610

Decision under appeal

• Citation: Wayne Leslie Verey v Andy's Earth Works Pty Ltd
• Date of Decision: 2011-04-14 00:00:00
• Before: Puckeridge ADCJ
• File Number(s): DC 2009/337610

Judgment

1 BEAZLEY JA : I have had the advantage of reading in draft the reasons of Macfarlan JA.

2 The central question for consideration was whether the excavator in which the respondent was a passenger at the time of the accident was a motor vehicle. That question in turn focussed upon whether the excavator was a " motor vehicle " within the meaning of the Road Transport (General) Act 2005. That question in turn focussed attention on the meaning of " vehicle " for the purposes of that Act.

3 The relevant statutory provisions are set out in Macfarlan JA's judgment and do not need to be repeated.

4 The legislation is beguiling in its simplicity. A " vehicle " means " any description of vehicle on wheels ". The exclusions in the definition do not apply.

5 As Macfarlan JA has explained, the excavator in this case rested on a base connected to two parallel endless tracks. The tracks rested on the ground. The excavator had wheels, none of which rested on the ground. The back wheels had cogs or teeth which provided the locomotion to the vehicle. The front wheels were " free rolling " in nature.

6 It seems to me that to give effect to the words of the statute, a " vehicle on wheels " does not refer to the means by which locomotion is provided to the vehicle. The structure of the vehicle must be " on wheels ". The excavator was not " on wheels ". It was on tracks. There was no suggestion that the tracks were the outer cladding of a wheel or wheels.

7 It follows that I agree with the reasons of Macfarlan JA and with his orders.

8 MACFARLAN JA : On 19 October 2009 Mr Wayne Verey, the respondent in this Court, commenced proceedings in the District Court claiming damages from his employer Andy's Earth Works Pty Ltd, the applicant. Mr Verey alleged that on 1 November 2006 he was injured at a work site when he was a passenger in a bucket, attached to the arm of an excavator, which was dropped to the ground. The excavator was being driven and operated by an employee of the applicant. Mr Verey brought his action under the Motor Accidents Compensation Act 1999 (the "MACA") alleging that the accident was caused by the negligence of the operator and, vicariously, that of the appellant.

9 As it was essential to the success of Mr Verey's proceedings that the Court find that the excavator was a "motor vehicle" as defined in s 3 of the MACA , the primary judge, Puckeridge ADCJ, at the request of the parties, considered and determined whether that was the case as a separate issue in the proceedings.

10 The primary judge concluded that the excavator was indeed a "motor vehicle" as defined in the MACA. However, for reasons that I give below, I have reached the contrary conclusion. As a result the applicant should be granted leave to appeal and his appeal against the decision of the primary judge should be allowed.

LEGLISLATIVE PROVISIONS

11 The relevant legislative provisions in force at the date of Mr Verey's accident were as follows.

12 The MACA included the following restrictions on its operation.

"3A General restrictions on application of Act

(1) This Act (including any third-party policy under this Act) applies only in respect of the death of or injury to a person that is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle and only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during:

(a) the driving of the vehicle, or

(b) a collision, or action taken to avoid a collision, with the vehicle, or

(c) the vehicle's running out of control.

... " (emphasis added).

13 "Motor vehicle" was defined in s 3 of the MACA as follows:

" motor vehicle means a motor vehicle or trailer within the meaning of the Road Transport (General) Act 2005 .

The Road Transport (General) Act 2005 defines a motor vehicle to mean a vehicle (within the meaning of that Act) that is built to be propelled by a motor that forms part of the vehicle. That Act defines vehicle to mean any description of vehicle on wheels (including a light rail vehicle) but not including other vehicles used on railways or tramways."

14 The definitions of "motor vehicle" and "vehicle" contained in s 3 of the Road Transport (General) Act 2005 (the "RTG Act") were as follows:

" motor vehicle means a vehicle that is built to be propelled by a motor that forms part of the vehicle."

" vehicle means:

(a) any description of vehicle on wheels (including a light rail vehicle) but not including any other vehicle used on a railway or tramway, or

(b) any other vehicle prescribed by the regulations."

15 There was no regulation in effect as at 1 November 2006 prescribing excavators or tracked vehicles as "vehicles" for the purposes of the RTG Act.

16 Following the decision of this Court in Doumit v Jabbs Excavations Pty Ltd [2009] NSWCA 360; 54 MVR 332, the Road Transport (General) Amendment (Tracked Vehicles) Regulation 2011 was made under the RTG Act prescribing for the purposes of the definition of "vehicle" in s 3 of that Act: "any description of tracked vehicle (such as a bulldozer), or any description of a vehicle that moves on revolving runners inside endless tracks that is not used exclusively on a railway or tramway".

17 The Explanatory Note to this Regulation included the following:

"The object of this Regulation is to prescribe tracked vehicles (such as bulldozers and tractors) and vehicles on runners inside endless tracks within the meaning of the Road Transport (General) Act 2005. The Act currently only applies to vehicles on wheels."

18 The Regulation commenced on 3 March 2011. As it was not given retrospective operation, it does not apply in respect of Mr Verey's accident.

THE EXCAVATOR

19 The excavator in question was a vehicle with a cabin capable of rotation. A moveable arm with a bucket on the end extended from the cabin. The cabin rested on a base which was connected to two long parallel endless tracks which rested on the ground. The movement of the tracks caused the vehicle to move. The technical specifications for an excavator of this type were not before the primary judge but were tendered by consent on appeal. These specifications stated that "[t]he crawler tracks ... are supported by 7 lower rollers, 1 upper roller" (Exhibit A p 10).

20 The rollers referred to were elongated metal cylinders without axles, situated, at least in the case of the lower rollers, immediately on top of that part of the track that was in contact with the ground. Before this Court, neither party contended that the rollers were "wheels" for the purposes of the definition of "motor vehicle".

21 Mr Colin Wingrove, an expert witness whose report Mr Verey tendered at the hearing at first instance, gave the following uncontroversial evidence concerning the function of the rollers:

"The rollers ... do nothing to facilitate the locomotion of the vehicle. The rollers only keep the contour of the track in a level situation with reference to the ground and apply guidance of the track between the front wheel and the rear wheel on either side of the excavator" (Report dated 21 December 2010 [10]).

22 Mr Wingrove also gave the following uncontentious evidence concerning the two rear wheels that were situated within the track on each side of the excavator and that appear to have had a height approximately equivalent to the difference between the upper and lower levels of the track:

"The rear wheel has 'cogs or teeth' and these provide the mechanism by which locomotion is given to the excavator" (Report [7]).

"The excavator ... gains its locomotion via the rear wheel on either side of the vehicle. Torque applied to the rear wheels on either side of the vehicle is translated into movement of a steel track that makes contact with the ground ... " (Report [12]).

23 Within the tracks on each side at the front of the excavator was a further wheel of similar size to those at the rear. Mr Wingrove described the front wheels as providing "no driving force" and "free rolling" in nature (Report [7]).

THE DICTIONARY DEFINITIONS OF "WHEEL"

24 The primary judge noted that the Concise Oxford Dictionary defined a "wheel" as:

"A circular frame or disk arranged to revolve on an axle and used to facilitate the motion of a vehicle, or for various mechanical purposes".

25 His Honour also noted that the Webster Dictionary included the following meaning of "wheel":

"... a circular framework, often with cogs or teeth on the rim, used to transmit or modify force and motion in machinery or a mechanical contrivance".

THE JUDGMENT AT FIRST INSTANCE

26 The primary judge expressed his conclusion in the following manner:

"On the evidence before this court, the excavator vehicle was propelled by a motor that formed part of it and gained its locomotion from the rear wheels which had cogs or teeth on the ring. On this evidence which is evidence factually different from that which Ipp J was referring to in [ Doumit v Jabbs Excavations Pty Ltd [2009] NSWCA 360], I have come to the conclusion that the excavator vehicle was a vehicle on wheels" (Judgment p 6).

THE JUDGMENT IN DOUMIT v JABBS EXCAVATIONS PTY LTD

27 In Doumit this Court considered whether an excavator was a "motor vehicle" within the meaning of s 3 of the RTG Act. By majority (per Ipp JA and Handley AJA, Young JA dissenting) the Court held that it was not.

28 Handley AJA (with whom Ipp JA relevantly agreed) examined the history of the legislation in question and concluded that the legislature's adoption in 1997 of a definition of a "vehicle" as "any description of vehicle on wheels" should be presumed to have been intended to exclude "a vehicle on tracks such as a bulldozer or a mechanical loader" because such a vehicle is not "on wheels" ( Doumit [119]). His Honour pointed out that the decisions in Fawcett v BHP By-Products Pty Ltd [1960] HCA 59; 104 CLR 80 and Grygorcewicz v Broken Hill Proprietary Co Ltd [1963] NSWR 1205; 80 WN (NSW) 828 holding that track vehicles were "motor vehicles" were based upon broader definitions focusing on the type of fuel used rather than the method of traction ( Doumit [116] - [119]). His Honour also noted that "[t]he distinction between wheeled and tracked vehicles is of course well recogni[s]ed in military circles" (Judgment [118]).

29 In addition to concurring with the judgment of Handley AJA ([12]), Ipp JA added some observations, including the following. His Honour referred to the evidence of a director of the respondent in that case and concluded:

"On my understanding of this evidence rollers, and not wheels, caused the tracks of the excavator to move" ([15]).

30 This is not the effect of the evidence in the present case concerning the excavator in the bucket of which Mr Verey was a passenger. The evidence here indicated that the rear wheels, and not the rollers or the front wheels, caused the tracks of the excavator to move and thus provided the locomotion of the vehicle. It is possible that Ipp JA misunderstood the evidence in Doumit but whether or not he did is not presently relevant.

31 In his dissenting judgment, Young JA expressed his conclusions as follows:

"103 The obvious purpose of the RTG Act was to govern the behaviour of machines (other than railway engines and the like) that proceeded along public roads. It would be most odd (especially remembering the history that this legislation in England which was copied in NSW commenced with modifying the use of locomotives on public roads), if it applied to every conceivable type of conveyance of passenger or goods save and except those which had tracks. It seems to me that despite the fact that such an interpretation makes the words 'on wheels' almost surplusage, it seems to me the better construction in accordance with the purpose of the statute is to construe the words 'on wheels' either as 'on wheels or equivalent' or alternatively, as meaning in which wheels contribute to its locomotion.

104 Accordingly, in my view, a bulldozer is a motor vehicle."

RESOLUTION OF THE PRESENT CASE

32 The decision in Doumit is not in my view distinguishable from the present case. Whilst the additional observations of Ipp JA, if correct, indicate that there is a factual distinction between that case and the present, the reasoning of Handley AJA (with which Ipp JA agreed) did not turn upon that possible factual distinction. In Handley AJA's view the critical points were that the words "on wheels" constituted a significant part of the definition of "vehicle" which needed to be given meaning and that because the vehicle in question moved "on tracks" rather than "on wheels", it was not a "vehicle". That reasoning is applicable to the present case.

33 Whilst not strictly binding, the decision in Doumit , being a previous decision of this Court, should be followed unless the Court as presently constituted is convinced that the earlier decision is wrong (see Nguyen v Nguyen [1990] HCA 9; 169 CLR 245 at 268 - 9; Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 at 99 - 101). I am not so convinced. In fact I consider the decision to be correct.

34 Contact between a vehicle's wheels and the ground may not strictly be necessary for a vehicle to be "on wheels". For example, tyres might not, on one view, be considered to be part of the wheels on ordinary sedan vehicles. Yet clearly such vehicles are regarded in common parlance as vehicles "on wheels". Likewise, if chains were put on the wheels of an ordinary sedan to enable it to be used in snow country, it could not be said that the vehicle ceased to be "on wheels" simply because the vehicle's points of contact with the ground were wholly or partly the snow chains.

35 However I do not consider that the tracks on the excavator involved in the present case could be regarded as equivalent to tyres or snow chains. First, the tyres and snow chains assume the shape of the wheels and are in my view effectively part of the wheels. In contrast, the tracks on the excavator were elongated, stretching for a considerable length (both on their top and bottom layers) between the widely separated front and rear wheels. The rollers and other parts of the excavator were in between them. The track did not in these circumstances assume the shape of the wheels.

36 Secondly neither the front nor rear wheels appear to have borne any significant part of the weight of the excavator. From the photographs that are in evidence it appears that those wheels were situated at each end of the excavator, somewhat higher from the ground than the rollers that were in between them. The principal weight of the excavator thus appears to have rested upon the rollers. The rollers in turn rested upon the tracks, which were in contact with the ground. This appears to be confirmed by the specifications to which I have earlier referred (see [19]), which describe the "crawler tracks" as "supported by 7 lower rollers, 1 upper roller".

37 The front and rear wheels of the excavator are readily described as "wheels" but in my view the excavator was not "on" them, as the evidence did not demonstrate that any significant part of the weight of the vehicle rested on those wheels. Further, as I have noted, the parts of the vehicle that were in contact with the ground (the tracks) could not, because of their length and shape, be regarded as effectively part of the wheels.

38 The primary judge was in my view in error in focusing upon the means by which the excavator was propelled (see [26] above), as the relevant question was not, as the primary judge suggested, whether it "gained its locomotion from the rear wheels", but whether it was "on" its wheels.

CONCLUSION AND ORDERS

39 For the reasons that I have given, the excavator with which this case is concerned was not a vehicle "on wheels" and was not therefore a "motor vehicle" for the purposes of the MACA under the legislation in force at the date of Mr Verey's accident. I accordingly propose the following orders:

(1) Leave to appeal granted.

(2) Direct that within fourteen days of the date of this judgment the applicant file and serve a Notice of Appeal in the form of the draft provided to the Court.

(3) Set aside the finding of the primary judge that the excavator referred to in Mr Verey's Statement of Claim was a "motor vehicle" within the meaning of the Motor Accidents Compensation Act 1999.

(4) Judgment for the applicant in the District Court proceedings brought by Mr Verey.

(5) Order Mr Verey to pay the applicant's costs of the proceedings at first instance and on appeal.

(6) Mr Verey to have a certificate under the Suitors' Fund Act 1951, if qualified.

40 WHEALY JA : I agree with Macfarlan JA.

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Decision last updated: 08 March 2012