JA & BM Bowden & Sons Pty Limited v Doughty

JA & BM Bowden & Sons Pty Limited (the appellant) appealed to the New South Wales Court of Appeal against a judgment entered in favour of Mr Doughty (the respondent) following a tractor rollover incident. The respondent, an employee of the appellant, sustained injuries when the tractor he was operating rolled over. The appellant had instructed the respondent to keep the rollover protection device lowered, which the respondent complied with. The respondent's claim for damages was based on the appellant's alleged negligence in giving this instruction.

The primary legal issue before the Court of Appeal was whether the respondent's injury constituted an "injury" within the meaning of the *Motor Accidents Compensation Act 1999* (NSW). This question turned on whether the fault of the appellant, in instructing the respondent to lower the rollover protection device, constituted fault in the "use or operation" of the tractor, as required by the Act for a claim to be covered.

By majority, the Court of Appeal held that the instruction to lower the rollover protection device, while negligent, did not amount to fault in the "use or operation" of the tractor. The Court reasoned that the "use or operation" of the tractor referred to the driving or mechanical functioning of the vehicle itself, not the antecedent decision-making process regarding safety equipment. Therefore, the injury sustained by the respondent did not fall within the scope of the *Motor Accidents Compensation Act 1999*.

Consequently, the appeal was allowed. The original verdict and judgment for the respondent were set aside, and a reduced judgment of $278,628 was entered in his favour. The respondent was ordered to pay the appellant's costs of the appeal and was granted a certificate under the Suitors Fund Act, provided he otherwise qualified.