21 March 2012 - Updated 20 November 2012

On 8 March 2012, the New South Wales Court of Appeal in the matter of Andy's Earthworks Pty Ltd v Verey¹ once again confirmed that but for the recent regulation introduced in March 2011, for the purposes of the Motor Accident Compensation Act 1999 (MACA), an excavator is not a motor vehicle. This firm acted for the appellant in this matter.

The facts are simple enough. The appellant is engaged in the business of demolition and earthworks. The respondent claimed to be an employee of the appellant who suffered injury as a result of sitting in a bucket attached to the arm of an excavator that subsequently disengaged from the arm. The respondent alleged to have suffered injury and made a claim under MACA.

The question of whether an excavator is a motor vehicle was the issue at hand. The appellant relied on the previous and recent Court of Appeal judgment of Doumitt v Jabbs Excavations Pty Ltd² handed down on 9 November 2009 and argued that the excavator was not a motor vehicle since it was a tracked vehicle and not on wheels.

In a 2:1 judgment the Court of Appeal held that an excavator was not a motor vehicle for the purposes of MACA. Handley AJA at 119 held:

The 1997 amendment narrowed the definition and, given the decisions that tracked  vehicles were within the earlier definition of motor vehicle, the presumptive intention  of Parliament was to exclude such vehicles from the new definition because they are  not “on wheels”. The only category of motor vehicle not covered by the new  definition is a vehicle on tracks such as a bulldozer or a mechanical loader.

The District Court distinguished Doumit with the case at hand and held that the excavator was a motor vehicle. On appeal the Court of Appeal in a 3:0 judgment reaffirmed Doumit and held that the excavator in question (and by extension every machine on tracks) was not a motor vehicle pursuant to the MACA definition. Beazley J at 6 held:

The structure of the vehicle must be "on wheels". The excavator was not on wheels.  It was on tracks.

Mcfarlan JA at 32 held:

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.

The respondent appealed to the High Court of Australia. On Friday 16 November 2012 Haydon and Gageler JJ refused the application for special leave to appeal thereby leaving the common law unchanged.

In March 2011 the New South Wales parliament passed regulation³ overriding the Court of Appeal judgment and has now prescribed tracked vehicles as a motor vehicles for the purposes of MACA. Consequently Green Slip insurance for excavators, bulldozers and all other tracked equipment is essential regardless of whether the machine is road registered.

¹ Road Transport (General) Amendment (Tracked Vehicles) Regulation 2011.
² [2009] NSWCA 360.
³ [2012] NSWCA 32.