Andy's Earth Works Pty Ltd v Verey  NSWCA
New South Wales Court of Appeal 1
Accidents prior to 3 March 2011 involving tracked vehicles
cannot give rise to claims under the Motor Accidents
Compensation Act 1999 (the Act).
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 Ltd2(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
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
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
1Macfarlan JA, Beazley JA, and Whealy JA 2 NSWCA 360
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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