Andy's Earth Works Pty Ltd v Verey

LEGLISLATIVE PROVISIONS 11The relevant legislative provisions in force at the date of Mr Verey's accident were as follows. 12The 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." 14The 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." 15There was no regulation in effect as at 1 November 2006 prescribing excavators or tracked vehicles as "vehicles" for the purposes of the RTG Act. 16Following 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". 17The 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." 18The 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 19The 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). 20The 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". 21Mr 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]). 22Mr 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]). 23Within 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" 24The 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". 25His 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 26The 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 27In 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. 28Handley 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]). 29In 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]). 30This 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. 31In 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 32The 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. 33Whilst 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. 34Contact 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. 35However 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. 36Secondly 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". 37The 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. 38The 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 39For 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. 40WHEALY JA : I agree with Macfarlan JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 March 2012