Andy's Earth Works Pty Ltd v Verey

Andy's Earth Works Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of the primary judge who had found that an excavator was a "motor vehicle" for the purposes of the *Motor Accidents Compensation Act 1999* (NSW). The dispute arose from a claim for damages by Mr Verey, an employee of Andy's Earth Works, who suffered injury while a passenger in the bucket of an excavator during the course of his employment.

The central legal issues before the Court of Appeal were whether the excavator, in the circumstances of its use, constituted a "motor vehicle" as defined by the *Motor Accidents Compensation Act 1999*, and whether it qualified as a vehicle "on wheels" under the *Road Transport (General) Act 2005* (NSW).

The Court of Appeal reasoned that the definition of "motor vehicle" in the *Motor Accidents Compensation Act 1999* required the vehicle to be designed or used primarily for the carriage of persons or goods on roads. The Court found that an excavator, by its design and primary function, was not intended for use on roads for the carriage of persons or goods. Furthermore, the Court determined that while the excavator possessed wheels, its use in the context of the incident did not satisfy the requirement of being a vehicle "on wheels" in the sense contemplated by the *Road Transport (General) Act 2005* for the purposes of road transport legislation.

Consequently, the Court of Appeal set aside the primary judge's finding that the excavator was a "motor vehicle" under the *Motor Accidents Compensation Act 1999*. The Court entered judgment for the applicant, Andy's Earth Works Pty Ltd, in the District Court proceedings and ordered Mr Verey to pay the applicant's costs at first instance and on appeal.