Australia: Keeping track of tracked vehicles
Curwoods Case Note

Judgment date: 8 March 2012

Andy's Earth Works Pty Ltd v Verey [2012] NSWCA 32

New South Wales Court of Appeal ¹

In Brief

Accidents prior to 3 March 2011 involving tracked vehicles cannot give rise to claims under the Motor Accidents Compensation Act 1999 (the Act).

Background

On 1 November 2006, the plaintiff was injured while a passenger in an excavator on a worksite. The excavator ran on tracks. The plaintiff commenced proceedings against the CTP insurer for the excavator under the Act. The accident predated the amendment to the Road Transport (General) Act 2005 (effective from 3 March 2011) which included tracked vehicles in the definition of vehicle, which does not have retrospective operation. Prior to these amendments the Court of Appeal had determined in Doumit v Jabbs Excavations Pty Ltd ² (Doumit) that a tracked vehicle did not fall within the definition of vehicle.

The plaintiff adduced evidence that the excavator gained its locomotion when torque applied to the rear wheels was translated into movement over steel tracks. Rollers in the tracks did not provide locomotion to the excavator but maintained the contour of and guided the track during movement. The defendant adduced expert evidence that in the construction industry a distinction is commonly made between vehicles with wheels and vehicles on tracks.

The trial judge determined that the excavator was a vehicle on wheels and therefore indemnified under the earlier definition of motor vehicle in the Act. He distinguished this case from Doumit as the court in that matter had limited evidence regarding the mechanisms of locomotion of the tracked vehicle and was therefore not in a position to make similar findings.

Court of Appeal

The defendant appealed the trial judge's decision.

The Court of Appeal allowed the appeal, following the decision of Doumit in distinguishing the tracks from wheels. Primarily, it was found that the excavator could not be said to be "on wheels" in accordance with the definition under the Act because the wheels did not bear any significant part of the weight of the excavator. Further, the tracks which bore the weight of the excavator were separate and distinct from the wheels.

Implications

This case is important as it reinforces the rule in Doumit that an accident involving a tracked vehicle prior to 3 March 2011 is not a "motor vehicle" within the meaning of that phrase as defined in the Act. A CTP Insurer will not be required to indemnify an insured for accidents involving tracked vehicles prior to 3 March 2011 under the third party policy set out in s 10 of the Act.

The amendments to the Act which include tracked vehicles in the CTP scheme came into effect on 3 March 2011 but have no retrospective operation.

Footnotes

¹Macfarlan JA, Beazley JA, and Whealy JA
²[2009] NSWCA 360

Ranked No 1 - Australia's fastest growing law firm' (Legal Partnership Survey, The Australian July 2010)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.