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 APPEAL
40956/99
CLD 12152/91
HANDLEY 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 APPEAL
40956/99
CLD 12152/91
HANDLEY 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Mazzilli

Details

AGLC: R v Mazzilli [2001] NSWCA 117
Case: [2001] NSWCA 117
Decision Date: 23 April 2001

CaseChat Overview and Summary

The appeal in *R v Mazzilli* concerned the application of the *Motor Accidents Act* and whether the use of a cherrypicker to facilitate electricians' access to power lines attracted cover under a compulsory motor accidents policy. The specific dispute revolved around the classification of the cherrypicker's use in the context of the Act.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

R v Mazzilli [2001] NSWCA 117

Most Recent Citation

TM v Karapanos [2011] ACTSC 74

Cases Citing This Decision

R v Krey (No 4) [2021] NSWSC 826
Citation 1

…d to individual treatment aimed at rehabilitation: see R v DAR (unreported, New South Wales Court of Criminal Appeal, 2 October 1997); R v Mazzilli [2001] NSWCA 117. However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themse…
R v MT [2020] ACTSC 339
Citation 2

…d to individual treatment aimed at rehabilitation: see R v DAR (unreported, New South Wales Court of Criminal Appeal, 2 October 1997); R v Mazzilli [2001] NSWCA 117. However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in the circumstances where young offenders conduct th…
FMP Group (Australia) Pty Limited v Coffs Harbour Auto Electrical Pty Limited [2020] NSWDDT 5
Citation 3 (Para 3)

…ight in new cross claims. They submit that there is dicta of Hodgson JA in Bradford Insulation Industries Pty Limited v Babcock Australia Pty Limited [2001] NSWCA 117 that would not support the making of the interim payment.…
R v Alcazar [2017] NSWCCA 51
Citation 4

…d to individual treatment aimed at rehabilitation: see R v DAR (unreported, New South Wales Court of Criminal Appeal, 2 October 1997); R v Mazzilli [2001] NSWCA 117. However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themse…
TM v Karapanos [2011] ACTSC 74
Citation 5

…ard to individual treatment aimed at rehabilitation: see R v DAR (unreported, New South Wales Court of Criminal Appeal, 2 October 1997); R v Mazzilli [2001] NSWCA 117.…
Thorn v Laidlaw [2005] ACTCA 49
Citation 6

…gard to individual treatment aimed at rehabilitation: see R v DAR (unreported New South Wales Court of Criminal Appeal, 2 October, 1997; R v Mazzilli [2001] NSWCA 117.…
R v AN [2005] NSWCCA 239
Citation 7

…ard to individual treatment aimed at rehabilitation: see R v DAR (unreported, New South Wales Court of Criminal Appeal, 2 October 1997); R v Mazzilli [2001] NSWCA 117. However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct them…
Thompson v Kimberly-Clark Australia P/L [2005] NSWSC 172
Citation 8

…174 GLG Australia Pty Ltd v The Nominal Defendant & Ors [2004] NSWCA 116 Pender v Power Coal [2002] NSWSC 925 Prospect County Council v Foster & Anor [2001] NSWCA 117 PARTIES: Rosalina Bastolini Thompson (Plaintiff) Kimberly-Clark Australia Pty Ltd (Defendant) FILE NUMBER(S): SC 20183/2004 COUNSEL: Mr D R Toomey (P…
R v J L C-H [2004] NSWCCA 70
Citation 9 (Para 23)

…rdinate role to the need to have regard to individual treatment aimed at rehabilitation. See R v Dar unreported NSWCCA 2 October 1997; R v Mazzilli [2001] NSWCA 117. However important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themsel…
Emad Trolley Pty Ltd v Shigar [2003] NSWCA 231
Citation 10

…52 In Prospect County Council v Foster (2001) 33 MVR 228; [2001] NSWCA 117 the question arose whether the compulsory third party policy under the Motor Accidents Act 1988 responded to the plaintiff’s claim or whether the plaintiff’s industrial accident fell outside the policy. The covering clause in the policy prov…
Pender v Power Coal [2002] NSWSC 925
Citation 11

…e Aust Limited v Moulding (1995) 22 MVR 325 NRMA Insurance Ltd v New South Wales Grain Corporation (1995) 22 MVR 317 Prospect County Council v Foster [2001] NSWCA 117 Zurich Australian Insurance Ltd v CSR Ltd [2001] NSWCA 261 DECISION: See paras 60 and 61…
R v Adamson [2002] NSWCCA 349
Citation 12 (Para 30)

…d to individual treatment aimed at rehabilitation: see R v DAR (unreported, New South Wales Court of Criminal Appeal, 2 October 1997); R v Mazzilli [2001] NSWCA 117. However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themse…
R v AEM [2002] NSWCCA 58
Citation 13

…ard to individual treatment aimed at rehabilitation: see R v DAR (unreported, New South Wales Court of Criminal Appeal, 2 October 1997); R v Mazzilli [2001] NSWCA 117. However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct them…

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Cases Cited

Prideaux v Director of Public Prosecutions [1987] HCA 51
Citation 1 (Para 31)

…se or operation of the vehicle”. The term “caused by” requires a direct or proximate relationship ( Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 483 at 505). It follows that the indemnity is only triggered when there is a direct and proximate relationship between the death or injury to a person on the one…
Dickinson v Motor Vehicle Insurance Trust [1987] HCA 49
Citation 2 (Para 31)

…he owner or driver of the vehicle in the use or operation of the vehicle”. The term “caused by” requires a direct or proximate relationship ( Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 483 at 505). It follows that the indemnity is only triggered when there is a direct and proximate relationship between the death or injury to a perso…

Legislation Cited

No legislation cited in this judgment.