Doumit v Jabbs Excavations Pty Ltd

[2009] NSWCA 360

New South Wales

Court of Appeal

CITATION:	Doumit v Jabbs Excavations Pty Ltd [2009] NSWCA 360
HEARING DATE(S):	28/09/09
JUDGMENT DATE:	6 November 2009
JUDGMENT OF:	Ipp JA at [1]; Young JA at [17]; Handley AJA at [112]
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	TORTS - Negligence - workplace incident- bulldozer reversed over worker- whether safe system of work- whether bulldozer driver negligent- whether contributory negligence on part of injured worker- challenge to trial judge's findings. - TORTS - Negligence- road accident- whether bulldozer is a "motor vehicle" for the purposes of the Motor Accidents Compensation Act 1999- by majority it is not- Whether bulldozer is a vehicle determines whether duty of care is of employer to employee or of driver to pedestrian- operation of motor accidents legislative scheme and worker's compensation scheme. - WORDS AND PHRASES- "motor vehicle"- "vehicle".
LEGISLATION CITED:	Motor Accidents Act 1988 Motor Accidents Compensation Act 1999, s 3 Motor Car Act 1903 (3 Edw 7, c.36) Motor Vehicles (Third Party Insurance) Act 1942, ss 5, 38A Road Transport (General) Act 2005, s 3 Traffic Act 1909 Traffic Legislation Amendment Act 1997, Sch 4
CATEGORY:	Principal judgment
CASES CITED:	Bransgrove v Archer [1926] NZLR 254 Browne v Dunn (1984) 6 R 67 Clark v Fehlberg [1968] Tas SR 190 (NC) 11 Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 Fawcett v BHP By-Products Pty Ltd [1960] HCA 59; 104 CLR 80 Grygorcewicz v Broken Hill Proprietary Co Ltd [1963] NSWR 1205 Hirst v Government Insurance Office of NSW [1963] SR (NSW) 1007 Holliday v Henry [1974] RTR 101 Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672 Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 McLean v Tedman [1984] HCA 60; 155 CLR 306 Sugar City v Bennett and White (Calgary) Ltd [1950] 3 DLR 81 Swinton v The China Mutual Steam Navigation Co Ltd [1951] HCA 54; 83 CLR 553 Talbot-Butt v Holloway (1990) 12 MVR 70 The Commonwealth v Baume [1905] HCA 11; 2 CLR 405 The King v Berchet (1690) 1 Shower KB 106; 89 ER 480
PARTIES:	Fadi Doumit (Appellant) Jabbs Excavations Pty Ltd (Respondent)
FILE NUMBER(S):	CA 40070/09
COUNSEL:	Dr A S Morrison SC and A D Campbell (Appellant) M L Williams SC and J Jobson (Respondent)
SOLICITORS:	Gerard Malouf & Partners (Appellant) McCulloch & Buggy (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 3482/06
LOWER COURT JUDICIAL OFFICER:	S J Gibb DCJ
LOWER COURT DATE OF DECISION:	18/12/08

CA 40070/09
IPP JA
YOUNG JA
HANDLEY AJA


Friday 6 November 2009

DOUMIT V JABBS EXCAVATIONS PTY LTD

Judgment

1 IPP JA: I have had the benefit of reading the reasons to be published by Young JA and Handley AJA.

2 I agree with Young JA that the trial judge was not in error in finding that:

(a) The respondent provided a safe system of work; and
(b) There was no act of casual negligence on the part of the driver of the excavator (Mr Joseph Keirouz).

3 To the appellant’s knowledge, the system of work provided by the respondent involved:

(a) The excavator emitting a beeping noise while it was being operated;
(b) The appellant being required to keep a specified distance from the excavator while it was being operated; and
(c) The appellant being required to remain at the specified distance from the working excavator until he was told by the excavator operator that it was safe to go near.

4 The trial judge accepted that this system of work was safe and I am not persuaded that she was wrong.

5 The casual act of negligence on the part of Mr Keirouz (for which the respondent was said to be vicariously liable) was failing to keep a proper lookout and negligently driving the excavator so that it collided with the appellant.

6 The appellant agreed that prior to the accident, Mr Keirouz was giving him “plenty of warning” by causing the excavator to beep as it was operating (Black 52). Mr Sleiman, a co-worker, testified that, three minutes before the accident, he and the appellant were working together about seven metres from the excavator. At the time, the excavator was reversing, having picked up some metal. According to Mr Sleiman, while he was looking at the excavator (the appellant having left him and moved to another position), he heard a scream, turned around and saw the appellant’s right foot going under the right hand side of the excavator track (Black 101 – 102). It is not clear from Mr Sleiman’s evidence precisely where the appellant was, in relation to the excavator, when the accident occurred. That is, it is not clear whether the appellant was directly to the rear of the excavator or alongside the excavator (and, if alongside, precisely where along the side of the excavator). The appellant’s evidence in this regard does not assist as her Honour did not accept the veracity of that evidence.

7 According to the appellant, his right foot was injured by the excavator. For the right hand side of the excavator to have passed over the appellant’s right foot while it was reversing, the appellant would have had to have his back or right side to the excavator.

8 On the evidence that I have set out, it is to be inferred that the appellant had walked away from Mr Sleiman, had moved towards the excavator and the excavator had struck his foot while he, the appellant, was not looking. The excavator was moving at about 2 km per hour at the time. The inference is that the appellant was not taking care for his own safety.

9 Mr Keirouz testified that his vision to the rear of the excavator was restricted. He said he could only see the “back side along the - tracks and not straight behind the – the machine, along the side only with the mirrors.” (Black 88). He could not recall whether he saw the appellant before the excavator ran over him or whether he looked to see where the appellant was as he was reversing (Black 95). Mr Keirouz said that he normally looked to see where he was reversing and there was no reason to believe that he did not look where he was going at the time that the accident occurred (Red 66). Her Honour accepted this evidence.

10 The trial judge rejected the submission that, had Mr Keirouz looked in the rear-view mirror, he must have seen the appellant (Red 65-66). In the absence of clear evidence as to precisely where the appellant was when the excavator ran over his foot, it cannot be said that her Honour erred in coming to the conclusion that Mr Keirouz was not negligent.

11 I would dismiss the appeal for the reasons I have expressed.

12 I agree with what Handley AJA has written concerning the question that arises as to whether the excavator was a motor vehicle within the meaning of s 3 of the Road Transport (General) Act 2005. I would add the following comments.

Section 3 provides:


“‘Vehicle means:

(a) any description of vehicle on wheels (including a light rail vehicle) but not including any other vehicle used on a railway or tramway, or

(b) any other vehicle prescribed by the regulations.”

13 The respondent contended that the excavator did not move on wheels but on revolving runners.

14 The only evidence on this issue was that of Mr Beshara Kairouz, a director of the respondent. The evidence in question was given in cross-examination and is as follows:

“Q. The machine is propelled forward or back by the wheels at the side of the machine.
A. There’s no wheels on the side of the machine. There’s – there’s a drive motor.

Q. Yes, and the drive motor doesn’t turn the track, it turns wheels.
A. Yep. It’s not wheels, it’s like – what you call it? I– I – don’t – it’s the – I can’t recall. It’s the – it’s something with steel with, like, control the change to turn.

Q. Well, I’m talking about it moving forward and back.
A. Yeah, moving forward and back.

Q. And it’s driven, is it not, by a wheel. The wheel revolves and pushes it forward.
A. No wheels, no wheels control.

HALL: May I approach the witness?

HER HONOUR: No

HALL: May the witness be shown exhibit AJ?

Q. Will you not agree that at the front and back of the track is a round circular device?
A: Yeah, that’s the driver motor.

Q. And that drives it forward and back.
A. Yep.

Q. The tracks rest on top of it, don’t they?
A. Yeah, but there’s nothing at the front, only at the back.

Q. Well, there’s a wheel at the front for the track to go round.
A. Yeah, there’s – yeah, there is, like – sometimes you –

Q. It’s a kind of wheel at the front.

HER HONOUR: Well, why don’t we let the –

WITNESS: It’s a kind of steel wheel. It’s not a wheel, actual wheel, it’s steel round things that the machine rolls on it.

…

Q. But it is nevertheless round; it’s round –
A. It’s a round.

Q. And it goes round and drags the tracks either forward or back?
A. Yeah.

Q. And there are also rollers and along the length of the track –
A. Rollers, steel rollers, yep.

Q. – and those rollers are round and they revolve?
A. Yep.”

15 On my understanding of this evidence rollers, and not wheels, caused the tracks of the excavator to move.

16 I agree with the orders proposed by Young JA.

: This is an appeal from a decision from Gibb DCJ who found a verdict for the defendant in a personal injury claim brought by the plaintiff.

The plaintiff/appellant suffered injury on 23 January 2004 at a demolition site at 334 Bay Street Botany.

18 The appellant was employed by the respondent as a labourer. The respondent was working on the site as an earthmoving contractor to Hanna & Hone Pty Ltd. The Hanna company was also sued, but the proceedings were discontinued against it.

19 On the day in question, the appellant was working with another man, Mr Sleiman picking up debris off the ground which was being cleared by a bulldozer driven by a Mr Joseph Keirouz.

20 The men had commenced working on the site that day at about 7am. At about 9am, the appellant was struck by the bulldozer as it was reversing and severely injured.

21 The proceedings before the primary judge involved a number of issues. The principal factual issue was where was the appellant in relation to Mr Sleiman when he was struck. Other issues were:

(i) whether the bulldozer should be classed as a “motor vehicle” within the meaning of the Motor Accidents Compensation Act 1999 (the “ MAC Act ”) and the Road Transport (General) Act 2005 (the “RTG Act” );

(ii) contributory negligence;

(iii) quantum of damages.

22 As to this last matter, the primary judge assessed the damages she would have awarded had the appellant succeeded on liability. Had the case been a motor vehicle accident, the damages were in the range of $396,106.07 to $452,692.65, had this been a work accident $395,362.89.

23 As to contributory negligence, the primary judge said that she would have found 60-65% in a motor vehicle accident claim and “say 20%” in a work accident claim.

24 The appellant’s notice of appeal contains 6 grounds which, in essence, claim the following:

1. The bulldozer driver was at fault;
2. The employer failed in its duty to have a safe system of work;
3. The judge erred in finding contributory negligence;
4. The judge erred in applying Browne v Dunn ;
5. The bulldozer was a motor vehicle.
6. The judge erred in not fixing damages for future care on a commercial basis.

25 On this appeal, Dr A S Morrison SC and Mr A D Campbell appeared for the appellant and Mr M L Williams SC and Mr J Jobson appeared for the respondent.

26 At the time of the accident, the appellant was 34 years of age. He was born in Lebanon where he had completed schooling to Year 12 and had completed one and a half years at law school.

27 However, the appellant speaks little English and his employment in Australia has been as an electrician or in manual work.

28 The appellant commenced work for the respondent on 15 December 2003, that is, some five weeks before the accident.

29 The primary judge was very concerned that she was faced with two very different versions as to where the appellant was in relation to the bulldozer when it struck him.

30 There is no doubt that the bulldozer was going forward and reversing time and time again on the day in question and that, when it was reversing, it emitted a beeping sound. However, it seems that it also emitted a sound when it proceeded in a forward direction, though this is of little moment.

31 It would appear that, having heard sounds emitted from the bulldozer for two hours or so (since 7am), the appellant became immune to these warning sounds.

32 There is also no doubt that the appellant was struck by the edge of the right hand track of the bulldozer which was reversing at the time. When hit, the appellant fell back and the bulldozer, had it continued would have made more serious contact with him, but it moved forward and released his leg.

33 However, it is significant that, although the appellant said that he was to the left of the bulldozer, he was struck on the right leg.

34 It was common ground that the site on which the relevant people were working was one where there had been substantial demolition but the site was still burdened by upright metal poles and concrete. The method being employed to clear the site was that the bulldozer was knocking material down and doing most of the clearing and loading a truck with spoil, but the appellant and his supervisor, Mr Sleiman, were picking up timber and debris in the vicinity of the bulldozer.

35 The respondent’s witnesses gave evidence before the primary judge that there was an induction conference and “toolbox meetings” on site at which the appellant was instructed as to safe working practices when working in the vicinity of the bulldozer. The appellant denied that this was so, but the primary judge accepted that evidence.

36 The bulldozer operator said that at the time of the accident, he was operating in the same way as he had been operating since 7am and along the same path.

37 Mr Sleiman said that he was working near the bulldozer and watching it, most of the time, the appellant was by his side. However, the appellant left him and walked away,

38 The appellant said that he was still beside Mr Sleiman and working with him when he was struck.

39 The primary judge said that she was thus faced with a simple contest of fact, namely, when the appellant was struck was he where he said he was, with Mr Sleiman and working with Mr Sleiman, or was he somewhere else.

40 That somewhere else might well have been right behind the bulldozer. If that were so, the bulldozer operator would have had little or no vision of him.

41 It was put to the appellant that he was behind the bulldozer. He vehemently denied it. However, before us, his counsel conceded that the appellant must have been more or less directly behind the bulldozer though the way he was struck shows that he was slightly to one side.

42 The primary judge did not accept the appellant’s evidence. She held that the appellant had walked away from Mr Sleiman, he had wandered off heedless of the danger to him of the bulldozer.

43 The judge’s assessment was a result of her finding inconsistencies in the appellant’s evidence and being impressed with the straightforward and forthright evidence of Messrs Sleiman and Keirouz.

44 However, it was clear that, neither Mr Sleiman nor Mr Keirouz actually saw what happened when the appellant was struck.

45 The learned primary judge said at Red 34:

“I make the following findings:
the plaintiff had been working with and opposite Mr Sleiman from about 7am until a few minutes before the accident;
a few minutes before the accident, the plaintiff wandered off, doing so off his own bat, without being in response to direction or instruction issued by Mr Sleiman and in that respect the plaintiff wandered off on some frolic of his own, even if, … the unsourced version in the worker’s compensation documents be right, at some point the plaintiff bent down to collect debris at the rear of the working machine.”

46 It is unfortunate that the word “frolic” was employed as this, to a lawyer, is relevant in a different context and, to a lay person, is a tad offensive. However, the finding is clear enough.

47 Dr Morrison for the appellant puts that in her finding the judge did not take account that only small distances were involved. He put that, even if the appellant was not actually right beside Mr Sleiman, he was only a short distance away and the finding that he had “wandered off” was without evidentiary foundation. This is reinforced by the fact that the judge seems to have accepted that at about the time of the accident the appellant was bending down picking up debris.

48 However, it was significant that at 9am the workers on the site had their morning tea break and it was quite possible that the appellant was moving towards the area where he could sit down and have a break.

49 Counsel submits that there are inherent difficulties in her Honour’s approach. She accepted the version given by the respondent’s witnesses though they did not see the accident and the version she accepted was never squarely put to the appellant.

50 The primary judge appreciated the first point and appears to have taken it into consideration.

51 As to the question as to whether the rule in Browne v Dunn (1894) 6 R 67 was satisfied with respect to the appellant’s version of the accident, I agree with the primary judge that there was sufficient direct challenge of the appellant.

52 She also accepted the second point and dealt with it. She said that, whilst it would have been preferable for the matter to be put more directly to the appellant, she considered that the questions as to whether he was directly behind the bulldozer when the accident occurred sufficiently exposed the issue.

53 However, Dr Morrison’s principal submission was that the primary judge did not direct her mind to all of the evidence. In particular, she did not consider what a strange coincidence it was that the information gathered by the employer for the purposes of a worker’s compensation claim was virtually exactly the same as the appellant’s account of the accident.

54 The worker’s compensation form stated:

“Was picking a piece of timber from behind the machine when the machine started to reverse”

55 Appellant’s counsel says that the appellant probably did not see the bulldozer reversing as he was facing away from it.

56 During oral argument, it was put to Dr Morrison that his submissions were in the realm of speculation. It was based on the scenario that there were two witnesses who did not see what had happened and were not asked questions about it and a hearsay statement in a worker’s compensation report.

57 Dr Morrison’s riposte was that despite the deficiencies in the material, it still needed to be weighed and evaluated.

58 Dr Morrison put that the primary judge seemed to take the now rejected view that an employee who is to work in a dangerous environment and who has been instructed in safe working practices is under a duty to look after himself. Instead, she should have directed her mind to whether the employer had a safe system of work or whether there were casual acts of negligence for which the employer was responsible.

59 Counsel puts that the way the judge dealt with the duties the parties owed each other, she was virtually making contributory negligence a complete defence.

60 It is true that the primary judge does say (Red 34):

“Whatever the reason … the plaintiff just wandered off…he failed to pay any heed to the moving machine, despite its warning beeps and his knowledge of the risk”

61 However, the judge did consider and weigh the worker’s compensation form and said that it was inaccurate and as it seemed not to have been prepared from information derived from persons who witnessed the accident, it had very little weight.

62 Mr Williams says that even the appellant’s own evidence demonstrates over and over again that he knew he was working in a dangerous area and that a system of work was in place but the judge was entitled to find that he just wandered off oblivious to danger.

63 It is expedient to deal with the issues arising on this appeal by first considering the decisions on matters of fact made by the primary judge, and then provide an analysis of the consequences in law of such findings that are endorsed.

64 It should be noted that depending on whether the bulldozer was a “motor vehicle” within the meaning of the RTG Act and thus a motor vehicle under the MAC Act, the case must be examined as involving the duty of an employer to an employee or as one involving the duty of a driver to a pedestrian. I will first deal with the matter as an employer’s duty case and then with the alternative.

65 This was one of those cases where there was no direct evidence as to what happened. The difficulties were exacerbated by the fact that the appellant was not too sure about the facts (partly because he seems to have been bending down facing away from the bulldozer at the time). Those difficulties, however, do not absolve a court from endeavouring to find facts if possible. If the court is unable to do that then the residual negative legal principle applies, the plaintiff has failed to discharge the burden of proof and there is a verdict for the defendant.

66 There was some evidentiary material in the instant case from which facts could be found. That material was to a degree rather unsatisfactory, but that just meant that the judge had to do the best she could with it.

67 The assessment was, essentially, that on the balance of probabilities, the appellant had left the side of Mr Sleiman and had moved away (possibly to commence his morning tea break). The probabilities were that the appellant had forgotten that he was in a position of peril because the bulldozer was still operating. The appellant, possibly, was bent down to pick something up with his back to the bulldozer, positioned more or less directly behind the bulldozer, the operator of the bulldozer had little vision of people directly behind his machine and hit the appellant.

68 That view of the accident was supported by some evidence and was within the mandate of the primary judge to so find.

69 What are the consequences of this factual finding?

70 Dr Morrison says that there has been a failure to provide a safe system of work.

71 No-one queries that an employer has a duty to employees to devise, provide and enforce a safe system of work. The employer is bound to take reasonable care to avoid injury to its employee that may occur even through inattention or mismanagement on the part of the employee; see eg Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672; McLean v Tedman [1984] HCA 60 ; 155 CLR 306 at 312.

72 The fact that the workplace is a dangerous one does not mean any diminution of the duty. Indeed, “those who engage in inherently dangerous operations must take precautions not required of persons engaged in routine activities”: Swinton v The China Mutual Steam Navigation Co Ltd [1951] HCA 54; 83 CLR 553 at 567, quoted with approval by Mason J in Kondis at 680.

73 The primary judge referred to a series of statements from the leading authorities on employers’ duties qua a safe system of work. There is no doubt that she had these principles in mind and sought to apply them to the fact situation in the instant case.

74 Dr Morrison complains that, in so doing, the primary judge seemed to have taken the view that an employee working in an obviously dangerous work environment, and who had been instructed as to the dangers, needed to look after himself.

75 With respect, her Honour did not go that far. It is true that one can read that flavour into some of her Honour’s reasoning, but a full reading shows that she was focussing on the content of the duty.

76 At Red 47, her Honour quoted from the judgment of Hayne J in Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 at 98 [276] in which his Honour quoted the classic test and emphasised the obligation of an employer to take reasonable care.

77 The primary judge then said:

“It does not follow that an employee (or pedestrian) may suspend his sensory and critical faculties and wander at large on a construction site, paying no heed to patent danger, ignoring warning sounds and signs (here a moving bulldozer) and ignoring instructions (and his own knowledge of the need) to stay clear of the machine as it works.”

78 She said at Red 54:

“It seems intuitively difficult to maintain the position that a worksite system should preclude operation of machinery in part or in whole whenever a manual worker not involved in the actual operation of the machine eludes surveillance or walks alone on the worksite.”

79 The judge then concluded that there had been warnings, the appellant understood the warnings, the bulldozer operator had, to common knowledge, restricted vision to the rear, there was to be an exclusion zone from the spot where the bulldozer was working (the extent of this zone was in dispute, though the most common view was 7 metres), the bulldozer emitted warning sounds when reversing. On these facts, the primary judge found that there was no failure to take reasonable care of the employee with respect to the system of work.

80 Insofar as the appellant relied on an act of casual negligence, the same result must follow.

81 I do not consider that her Honour’s fact-finding exercise miscarried.

82 As to the claim that this case was one of a motor vehicle hitting a pedestrian, albeit on a construction site, much the same examination of her Honour’s treatment of the facts, mutatis mutandis, would produce the same result.

83 However, there is the threshold question as to whether the bulldozer was a “motor vehicle”.

84 Section 3 of the MAC Act defines “motor vehicle” as meaning a motor vehicle or trailer within the meaning of the RTG Act. Section 3 of the RTG Act provides:

“’Vehicle’ means:
(a) any description of vehicle on wheels (including a light rail vehicle) but not including any other vehicle used on a railway or tramway, or
(b) any other vehicle prescribed by the regulations.”

There is nothing relevantly prescribed by the regulations.

85 There was evidence as to how the bulldozer progressed across the ground from its operator, though that was hardly given in a scientific manner. It would appear that the part of the bulldozer that is in contact with the ground is a continuance belt of tracks. That belt revolves in either a forward or reverse direction because within the tracks there is at least one disk which permits the tracks to move forward or back. The director of the respondent company (who had operated the machine), Mr Beshara Kairouz, gave this evidence:

“Q. Will you not agree that at the front and back of the track is a round circular device?
A. Yeah, that’s the driver motor.
Q. And that drives it forward and back?
A. Yep.
Q. The tracks rest on top of it don’t they?
A. Yeah, but there is nothing at the front, only at the back.
Q. Well there’s a wheel at the front for the track to go round?
A. Yeah, there’s – yeah, there is, like – sometimes you -
Q. It’s a kind of wheel at the front?
…
A. It’s a kind of steel wheel. It’s not a wheel, actual wheel, it’s steel round things that the machine rolls on it.
Q. Yes and there’s another one at the back?
A. The one at the back it’s different it’s one with …. It’s different than the front … it’s got like [not transcribable] so it controls the chain to move in back and forward.
Q. But it’s nevertheless round; its round?
A. It’s around.
Q. And it goes round and drags the tracks either forward or back?
A. Yeah.
Q. And there are also rollers and along the length of the track …?
A. Rollers, steel rollers, yep.
Q. And those rollers are round and they revolve?
A. Yep.
A. And the weight of the machine is actually borne primarily by those moving parts which just move it forward and back along the track?
A. Yeah, that’s the hydraulic pump.
Q. Yes. You see, you can if you want to disconnect a link in the track and lay them out and then roll the machine off the track or along the track that has been laid out flat and for the purposes of maintenance, can’t you?
A. Yes.”

86 It appears from this evidence that the motor provides power to revolving rollers which then cause the tracks to move.

87 It is put that this means, inter alia, that the vehicle is not “on” wheels because even if one takes the rollers as being wheels, the wheels do not make contact with the road.

88 I am not impressed with this argument. There is, as one would expect, little authority on the point. However, in Holliday v Henry [1974] RTR 101, the English Court of Appeal had to deal with the argument that a vehicle was not being used “on a public road” because there were, interposed between the wheels and the surface of the road, roller skates. The magistrates held that that argument was correct. The prosecutor appealed and the appeal was allowed. Lord Widgery CJ, with whom Ashworth and Milford Stevenson JJ said at 103 that the defendant, who was not legally represented before the magistrates “was a man of ingenuity … [and] was making the point that you could not say the vehicle was on the road if the roller skates were interposed between the road and the vehicle so that the vehicle was on roller skates.” The Lord Chief Justice continued:

“He was a man who could be commended for his ingenuity … . I can only believe that the justices thought that the word ‘on’ … meant literally ‘on’ in the sense that nothing must be interposed between the road and the wheels. The argument taken to its logical extent would seem to be that, if one put a piece of newspaper under each wheel, the vehicle would be no longer on the road and no longer liable to an excise licence. Unfortunately for the defendant that would not do. It is perfectly clear that it was on the road for present purposes at the time of the alleged offence …”.

89 Next it is put that it seems to have been assumed by the community that a bulldozer is a motor vehicle. There is reference in Mr Britts’ books that a bulldozer is taken to be a motor vehicle but the learned author observes that this is based on a Tasmanian decision, Clark v Fehlberg [1968] Tas SR 190 (NC) 11, but the relevant Tasmanian Act used the words “designed to move … on one or more wheels or revolving runners”. The case is thus not that much assistance in the present case.

90 In Grygorcewicz v Broken Hill Proprietary Co Ltd [1963] NSWR 1205, Asprey AJ, as his Honour then was, had to deal with a case of a mechanical loader. This machine was powered by diesel engine and ran on continuous metal tracks similar to those of a military tank. His Honour had to construe s 38A of the Motor Vehicles (Third Party Insurance) Act 1942, as amended in 1951 which defined a motor vehicle as a vehicle propelled by any means other than human or animal power, but did not include any vehicle used on a railway or tramway.

91 The judge held that the loader was a motor vehicle because it was powered by diesel and although he approved decisions to the effect that a vehicle is a contrivance on which passengers or goods are transported (see Bransgrove v Archer [1926] NZLR 254 at 255 and Sugar City v Bennett and White (Calgary) Ltd [1950] 3 DLR 81, 93) he held that the loader:

“can and does transport goods or materials in the shape of the materials which it picks up in the bucket”. (p 1208).

92 The High Court considered the question as to whether a loader was a motor vehicle under the Third Party Insurance Act in Fawcett v BHP By-Products Pty Ltd [1960] HCA 59; 104 CLR 80. The judges, particularly Menzies and Windeyer JJ, had no difficulty in saying that such a contrivance was a motor vehicle and would commonly be regarded as such. They took this attitude even though they agreed that the essential nature of a vehicle was something which conveyed people or goods.

93 I have done brief research on the origin of the present definition, but have not found a satisfactory answer.

94 The Traffic Act 1909 was the first in this State to deal with motor vehicles on public roads. It in turn had its genesis in the English Act of 1903, which, when one looks at the Motor Car Act, 1903 (3 Edw 7, c.36), was an Act to dispense the drivers of motor cars with the more stringent requirements of the locomotives on public roads legislation. This is doubtless the reason why various statutes have always exempted vehicles on railways and tramways, the word “tramways” presumably meaning tramways like the former Silverton Tramway or Yass Tramway rather than meaning suburban trams on public roads, a type of vehicle now known as a light rail vehicle.

95 The principal argument for excluding bulldozers from being motor vehicles is that the legislature has introduced the words “on wheels” apparently deliberately. In discussion during oral argument, there was speculation as to what other sort of vehicles there could be apart from vehicles on wheels. The only two examples that can be thought of were vehicles on skies passing across ice or snow and the modern magnetic levitation vehicles, which are mainly part of a railway system where they do exist.

96 The argument is that the legislature deliberately has inserted the words “on wheels” departing from earlier definitions and that courts should not fail to give some meaning and effect to every word in the statute and not consider any word as superfluous. This is a long-standing rule of statutory interpretation. It was so stated by Griffith CJ in The Commonwealth v Baume [1905] HCA 11; 2 CLR 405 at 414, his Honour tracing it back to The King v Berchet (1690) 1 Shower KB 106 at 108; 89 ER 480 at 481. In that case the Full Court of the King’s Bench said:

“Now it is a known rule in the interpretation of statutes, that such a sense is to be made upon the whole, as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction, they may all be made useful and pertinent.”

The rule is still regularly applied, a modern instance is by this Court in Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 at 114.

97 There was some argument below as to whether the circular disks or rollers which rotate so as to move the tracks could be said to be wheels. There was discussion of the fact that a bulldozer moves forward on tracks which describe an elliptical rather than a circular orbit.

98 I do not consider that it is necessary to enter into this discussion. The plain fact of the matter is that the bulldozer moves across the ground, not on wheels, but on tracks.

99 Uninstructed by authority, I would have thought there is something to be said for the proposition that a bulldozer is not a vehicle at all, let alone a motor vehicle. However, the cases to which I have already referred and in addition, the decision of this Court in Hirst v Government Insurance Office of NSW [1963] SR (NSW) 1007 (a case where a crane was held to be a motor vehicle), to my mind mean that I cannot take that view.

100 There was some discussion as to what vehicles are customarily registered. The Court was told that with respect to bulldozers they are normally transported to the site and are not registered. However, the reason for this may be that it is more economical to do so, rather than it is unnecessary for them to be registered. Evidently, we were told, vehicles operating on ice or snow not on wheels are ordinarily registered. However, a light rail vehicle or a city or suburban tram, although on wheels, is not ordinarily seen bearing a number plate.

101 However, it is clear that a machine can be a motor vehicle even if there is no requirement to register it, such as a machine operating on private land, so that looking to see what is registered and what isn’t, in practice, is not a sure guide to what is a vehicle.

102 It is to be observed from the cases which I have cited, that the Court is commanded to construe the current type of statute not in a narrow or pedantic way. See particularly Fawcett’s case at 87 and 91.

103 The obvious purpose of the RTG Act was to govern the behaviour of machines (other than railway engines and the like) that proceeded along public roads. It would be most odd (especially remembering the history that this legislation in England which was copied in NSW commenced with modifying the use of locomotives on public roads), if it applied to every conceivable type of conveyance of passenger or goods save and except those which had tracks. It seems to me that despite the fact that such an interpretation makes the words “on wheels” almost surplusage, it seems to me the better construction in accordance with the purpose of the statute is to construe the words “on wheels” either as “on wheels or equivalent” or alternatively, as meaning in which wheels contribute to its locomotion.

104 Accordingly, in my view, a bulldozer is a motor vehicle.

105 Before leaving this topic I should make the comment that it is a reflection on our law that courts and litigants have to go to the trouble and expense of making these fine distinctions as a consequence of legislation producing vastly different results depending on whether something is a motor vehicle accident or work accident or an accident in neither of those categories. In the instant case, omitting considerations of contributory negligence, the plaintiff’s damages were assessed by the primary judge at $1,131,732.00 if the accident were a motor vehicle accident, and only $494,204.00 if it was a work accident.

106 However, the ultimate result does not matter in this particular case because even if the case is looked at as one of a motor vehicle striking a pedestrian, in the circumstances which I have already related, there is no breach of any duty of the driver of the vehicle.

107 The evidence clearly was that the driver had no vision directly behind his vehicle, there was no way he could have seen a person directly behind the vehicle, he was operating in circumstances where his workmates had been given clear instructions to keep clear of his vehicle, and it was not reasonably foreseeable that a person would depart from instructions and stand in the blind spot.

108 Dr Morrison reminds us of what Handley JA said in Talbot-Butt v Holloway (1990) 12 MVR 70 at 88:

“The evaluation and assessment of the culpability of the plaintiff and the defendant must take proper account of the fact that … the plaintiff’s conduct posed no danger to anyone but herself, while the defendant who was driving (the vehicle) … was in charge of a machine that was capable of doing great damage to any human being who got in its way.”

109 However one cannot solve these problems by such general statements alone. The Court must analyse the precise facts of each case as I have done when considering the case on safe system of work.

110 As the verdict for the defendant must be affirmed, there is little purpose in dealing with the other grounds of appeal relating to contributory negligence or in the fixing of damages for future care on a commercial basis.

111 The upshot is that in my view the appeal should be dismissed with costs.

112 HANDLEY AJA: In this appeal I have had the advantage of reading the reasons for judgment of Ipp JA and Young JA in draft. I agree with their reasons for dismissing the appeal on the facts, but with respect, I am unable to agree with Young JA that the bulldozer, a tracked vehicle, was a motor vehicle as defined in section 3 of the Motor Accidents Compensation Act 1999 (the 1999 Act). This incorporated by reference the definition of motor vehicle in the Traffic Act 1909 as amended and later the same definition in the Road Transport (General) Act 2005.

113 The definitions in the 1909 and 2005 Acts, so far as relevant, defined vehicle as meaning “(a) any description of vehicle on wheels”. This may be compared with the definition in earlier legislation providing for compulsory third-party insurance of motor vehicles. Sections 5 (1) and 38A(2) of the Motor Vehicles (Third Party Insurance) Act 1942 (the 1942 Act) defined a motor vehicle as meaning:

“any motor car, motor carriage, motor cycle or other vehicle propelled wholly or partly by any volatile spirit, steam, gas, water or electricity, or by any means other than human or animal power …”

114 This definition was carried into s 3(1) of the Motor Accidents Act 1988 (the 1988 Act) with immaterial changes, and it remained in that Act until the Traffic Legislation Amendment Act 1997 (Act No 115) which in Schedule 4 cl 4.10 [10] adopted the definitions of motor vehicle and vehicle in the Traffic Act 1909. That Act relevantly defined vehicle as “any description of vehicle on wheels”, and motor vehicle as “a vehicle that is built to be propelled by a motor that forms part of the vehicle.”

115 The new definition of motor vehicle adopted in 1997 was incorporated into the 1999 Act and was still in that form when this accident occurred on 23 January 2004.

116 The decisions in Fawcett v BHP By-Products Pty Ltd (1960) 104 CLR 80 and Grygorcewicz v Broken Hill Proprietary Co. Ltd [1963] NSWR 1205 were based on the definition in the 1942 Act and are not directly relevant to the narrower definition introduced in 1997. In the cases on the 1942 Act mechanical loaders which moved on tracks were held to be motor vehicles as then defined. That definition focused on the fuel used by the method of propulsion whereas the new definition dating from 1997 focuses on the method of traction, that is, by wheels.

117 In Grygorcewicz (above) at 1208 Asprey AJ referred to various judicial and other definitions of vehicle and said of the mechanical loader in that case:

“Despite the fact that this machine is driven not by the movement of wheels but by means of endless metal tracks, in the same manner as an Army tank, I am of the opinion that it is a vehicle for the purposes of section 38A.”

118 The distinction between wheeled and tracked vehicles is of course well recognized in military circles.

119 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.

120 In my judgment the bulldozer involved in this accident was not a motor vehicle within the 1999 Act. Subject to that qualification I agree with the reasons of Young JA and the orders he has proposed.

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