When is an excavator a motor vehicle?
May 29, 2012
Andy’s Earth Works Pty Ltd v Verey  NSWCA 32
Is an excavator a ‘motor vehicle’?
On 1 November 2006, the respondent Mr Verey was injured on a worksite when he was riding in a bucket attached to the arm of an excavator, which was dropped to the ground. The respondent made a claim against his employer, claiming damages should be assessed under the Motor Accidents Compensation Act 1999 (MACA). To succeed in that contention, he had to establish that the excavator was a ‘motor vehicle’ as defined in section 3 of the MACA within the meaning of the Road Transport (General) Act 2005 (RTA).
The RTA 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.
The excavator in question was a vehicle with a cabin capable of rotation. The cabin rested on a base which was connected to two long parallel endless tracks. The movement of these tracks caused the vehicle to move.
The trial judge, Puckeridge J, considered the excavator was propelled by a motor and gained its locomotion from the rear wheels which had cogs or teeth on the ring. His Honour determined that the excavator was a ‘vehicle on wheels’ and therefore a ‘motor vehicle’ as defined in the MACA.
On appeal, the appellant relied on the judgment of Doumit v Jabbs Excavations Pty Ltd  NSWCA 360 (Doumit). In that case, the Court of Appeal had determined that the excavator was not a motor vehicle as the rollers, not wheels, caused the tracks of the excavator to move.
The Court of Appeal allowed the appeal and made the following findings:
- The tracks on the excavator were elongated, stretching for a considerable length between the widely separated front and rear wheels, with rollers and other parts of the excavator between them. The track did not assume the shape of the wheels
- Neither the front nor rear wheels appeared to have borne any significant part of the weight of the excavator. The principal weight of the excavator appeared to be rested on the rollers, which in turn rested upon the tracks on the ground
- The front and rear wheels were described as wheels but the excavator was not ‘on’ them, as the expert evidence indicated that the weight of the vehicle did not rest on the wheels
- The track, because of their length and shape, could not be regarded as wheels
- The trial judge erred in his decision as the relevant question was not whether the excavator ‘gained its locomotion from the rear wheels’, but should be whether it was ‘on’ its wheels.
Following the decision of Doumit, the Road Transport (General Amendment (Tracked Vehicles) Regulation 2011 was brought in which prescribes the definition of ‘vehicle’ as ‘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.’
The amendment to the Act came into effect on 3 March 2011 and it was not given retrospective operation. Therefore, it did not apply to the appellant’s case, or to any injuries arising prior to that date.
Authored by Elaine Poon, Lawyer, Sydney.
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