NEW SOUTH WALES COURT OF APPEAL
CITATION: PROSPECT COUNTY COUNCIL v FOSTER & ANOR [2001] NSWCA 117
FILE NUMBER(S):
40956/99
HEARING DATE(S): 23 April 2001
JUDGMENT DATE: 23/04/2001
PARTIES:
PROSPECT COUNTY COUNCIL
v Alan James FOSTER and
CIC INSURANCE LIMITED
JUDGMENT OF: Handley JA Davies AJA Ipp AJA
LOWER COURT JURISDICTION: Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S): CLD 12152/91
LOWER COURT JUDICIAL OFFICER: Master Harrison
COUNSEL:
C R R Hoeben SC (Appellant)
P Webb QC/R J Cheyney (First Respondent)
J E Maconachie QC/R J Wright (Second Respondent)
SOLICITORS:
Leigh Virtue & Associates (Appellant)
Connery & Partners (First Respondent)
Abbott Tout (Second Respondent)
CATCHWORDS:
INDUSTRIAL ACCIDENTS - Motor Accidents Act - mere use of cherrypicker to enable electricians to gain access to power lines does not attract cover provided for under compulsory motor accidents policy
LEGISLATION CITED:
Motor Accidents Act
DECISION:
Appeal allowed - orders made
JUDGMENT:
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL40956/99
CLD 12152/91HANDLEY JA
DAVIES AJA
IPP AJA
23 April 2001
PROSPECT COUNTY COUNCIL v ALAN JAMES FOSTER & ANOR
JUDGMENT
INDUSTRIAL ACCIDENTS - Motor Accidents Act - mere use of cherrypicker to enable electricians to gain access to power lines does not attract cover provided for under compulsory motor accidents policy
This appeal arose from a judgment of Master Harrison in favour of the plaintiff who suffered personal injury as a result of an industrial accident which occurred while he was working on electricity wires under the control of the appellant, Prospect Country Council. The County Council appealed and the principal issue was whether its compulsory third party policy under the Motor Accidents Act responded to the plaintiff ’s claim, or whether this industrial accident fell outside the cover provided by the Act.
HELD, allowing appeal: The Master found that the County Council was liable both at common law and for breach of various industrial safety regulations however this did not involve fault in any ordinary sense in the use of the cherrypicker as a motor vehicle. It is not sufficient for the purposes of the Act that the fault of the owner of a motor vehicle should be fault which occurs while the vehicle is being used if it is not fault in the use of the vehicle.
ORDERS
(1) Appeal allowed;
(2) Judgment of Master Harrison set aside, except as to costs;
(3)Substitute judgment for the plaintiff for $2,248,681.90 with effect from 26 November 1999.
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL40956/99
CLD 12152/91HANDLEY JA
DAVIES AJA
IPP AJA
23 April 2001
PROSPECT COUNTY COUNCIL v ALAN JAMES FOSTER & ANOR
JUDGMENT
HANDLEY JA: This is an appeal by the Prospect County Council from the judgment of Master Harrison which was directed to be entered on 26 November 1999 for $2,684,206.80 arising out of what may be termed as an industrial accident occurring while the plaintiff was working on electricity wires under the control of the County Council.
The Master had…
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- AGLC
- R v Mazzilli [2001] NSWCA 117
- Case
- [2001] NSWCA 117
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the cherrypicker, in its specific use for providing access to power lines, constituted a "motor accident" as defined by the *Motor Accidents Act*. This required the court to consider the scope of compulsory motor accidents insurance and whether the circumstances of the cherrypicker's operation fell within its purview.
The court reasoned that the mere use of the cherrypicker to enable electricians to gain access to power lines did not, in itself, constitute a "motor accident" for the purposes of the *Motor Accidents Act*. The Act's coverage is primarily directed at accidents arising from the use of registered motor vehicles on public roads. The court determined that the cherrypicker's function in this instance was more akin to a tool for accessing a work site rather than a vehicle being used in a manner contemplated by the compulsory insurance provisions. Consequently, the appeal was allowed, and the court made orders accordingly.
Orders
Orders of the court
Appeal allowed - orders made
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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