Patrick Stevedores No 1 Pty Ltd v Kilkelly

The appeal and cross-appeal concerned a personal injury claim brought by Mr Kilkelly against Patrick Stevedores No 1 Pty Ltd. Mr Kilkelly was injured while working on a portainer, a piece of crane-like equipment used for unloading containers. The dispute involved the correct legislative framework for assessing damages, specifically whether the *Motor Accidents Act* or the *Workers Compensation Act* applied, and also raised issues regarding the assessment of damages and costs orders. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issues before the court were whether the portainer constituted a "motor vehicle" for the purposes of the *Motor Accidents Act*, and whether it was "used on a railway or tramway" within the meaning of that Act. Additionally, the court had to determine whether there was an error in the assessment of damages for non-economic and economic loss, and whether the original costs orders, including a *Bullock* order, were properly made and whether a subsequent attempt to vary those orders was valid.

The Court of Appeal held that the portainer was not a motor vehicle within the meaning of the *Motor Accidents Act* because it was not designed for use on public roads. Furthermore, it was not "used on a railway or tramway" as it operated on rails that were not part of a transport system for trains or trams. The court found no error in the assessment of damages. Regarding costs, the court determined that the *Bullock* order had not been properly made and that there were no grounds to vary the original costs orders.

In CA 40444/00, the court granted leave to cross-appeal, set aside an earlier order regarding costs, and ordered that the defendant pay the plaintiff's costs, dismissing the appeal and cross-appeal otherwise. In CA 40552/03, leave to appeal was granted, the appeal was allowed, and the previous orders made on 4 June 2003 were set aside. The appellant was ordered to pay 70 per cent of the respondent's combined costs of the appeal and application for leave to appeal.