Majid Alaee v Eptec Pty Limited

[2015] HCASL 192

MAJID ALAEE

v

EPTEC PTY LIMITED

[2015] HCASL 192
S47/2015

1. The applicant commenced proceedings in the District Court of New South Wales seeking damages for personal injury suffered in the course of his employment by the respondent. The applicant and a co-worker were working on a mobile elevated work platform, commonly known as a "cherry picker". The applicant's co-worker began manipulating the platform's controls, which caused the platform to shake violently and the applicant to be injured. Section 3A(1) of the Motor Accidents Compensation Act 1999 (NSW) provided, in relevant part, that the Act applied only to an "injury ... caused by the fault of the ... driver of a motor vehicle in the use or operation of the vehicle and only if the ... injury is a result of and is caused ... during: (a) the driving of the vehicle".

2. The District Court (Garling ADCJ) gave judgment in favour of the plaintiff, holding that the plaintiff's injuries were the result of and caused during the 'driving' of a vehicle, being the platform.  The Court of Appeal of the Supreme Court of New South Wales (McColl and Macfarlan JJA and Sackville AJA) allowed an appeal by the respondent, holding that the applicant's injuries were not the result of, or caused during, the 'driving' of a vehicle because the co-worker's manipulation of the platform's controls did not engage its locomotive functions.

3. The applicant now seeks special leave to appeal from the orders of the Court of Appeal and an extension of time in which to make that application.  The application raises no question of principle which would warrant the grant of special leave.  It would therefore be futile to grant an extension of time.  We would refuse special leave to appeal. 

4. Pursuant to r 41.11.1, we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

V.M. Bell
4 November 2015 S.J. Gageler