RG & KM Whitehead Pty Ltd v Lowe

Case [2013] NSWCA 117

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: RG & KM Whitehead Pty Ltd v Lowe [2013] NSWCA 117
Hearing dates:11 April 2013
Decision date: 14 May 2013
Before: Barrett JA at [1];
Tobias AJA at [2];
Preston CJ of LEC at [67]
Decision:

1. Appeal allowed.

2. Set aside the verdict and judgment for the respondent made by Robison DCJ on 22 March 2012 and in lieu thereof enter a verdict and judgment for the appellant.

3. The respondent to pay the appellant's costs of the proceedings at first instance and of the appeal but to have with respect to the latter a certificate under the Suitors Fund Act 1951, if otherwise qualified.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: TORTS - negligence - motor vehicle accident - whether respondent's injury caused by fault of appellant within the provisions of the Motor Accidents Compensation Act 1999 (NSW) - whether primary judge failed to categorise accident as "work accident" or "motor vehicle accident" - whether appellant at fault for failing to implement safe system of work - whether injury occurred in driving of front end loader per ss 3 and 3A of Act
Legislation Cited: Motor Accidents Compensation Act 1999
Workers Compensation Act 1987
Cases Cited: Insurance Commission of Western Australia v Container Handlers Pty Ltd [2004] HCA 24; (2004) 218 CLR 89
JA & BM Bowden & Sons Pty Limited v Doughty [2009] NSWCA 82; (2009) 52 MVR 552
Motor Accident Commission v ANI Corp Ltd (1997) 26 MVR 57
Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11; (2006) 228 CLR 529
Portlock v Baulderstone Hornibrook Engineering Pty Limited & Ors [2005] NSWSC 775; (2005) 44 MVR 147
QBE Insurance (Australia) Ltd v Smith [2005] NSWCA 130; (2005) 43 MVR 407
Suncorp Metway Insurance Limited v Sichter [2010] QSC 164; [2011] 2 Qd R 89
Category:Principal judgment
Parties: RG & KM Whitehead Pty Ltd (Appellant)
Anthony Lowe (Defendant)
Representation: Counsel:
G J Parker SC (Appellant)
P M Morris SC and R Harrington (Respondent)
Solicitors:
Turks Legal (Appellant)
Stacks the Law Firm (Respondent)
File Number(s):CA 2012/106484
 Decision under appeal 
Date of Decision:
2012-03-22 00:00:00
Before:
Robison DCJ
File Number(s):
DC 2010/381372

Judgment

  1. BARRETT JA: I agree with Tobias AJA. I merely add an observation on the s 3A(1)(a) issue. The "driving" of a motor vehicle does not end or become suspended when the vehicle stops at a traffic light or pauses at a toll gate (QBE Insurance (Australia) Ltd v Smith [2005] NSWCA 130; (2005) 43 MVR 407 at [36] per…

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AGLC
RG & KM Whitehead Pty Ltd v Lowe [2013] NSWCA 117
Case
[2013] NSWCA 117
Decision Date

CaseChat Overview and Summary

RG & KM Whitehead Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a decision of Robison DCJ in the District Court. The dispute concerned a claim for damages for personal injury arising from a motor vehicle accident, where the respondent alleged the appellant was at fault.

The primary legal issues before the Court of Appeal were whether the injury sustained by the respondent was caused by the fault of the appellant within the meaning of the *Motor Accidents Compensation Act 1999* (NSW). Specifically, the court considered whether the accident should have been categorised as a "work accident" or a "motor vehicle accident" under the Act, and whether the appellant was at fault for failing to implement a safe system of work. A further issue was whether the injury occurred in the driving of a front-end loader, as contemplated by sections 3 and 3A of the Act.

The Court of Appeal found that the primary judge had erred in her categorisation of the accident and the application of the relevant provisions of the *Motor Accidents Compensation Act 1999* (NSW). The court reasoned that the circumstances of the incident did not fall within the scope of the Act as it applied to the driving of a motor vehicle. Consequently, the appeal was allowed, the verdict and judgment for the respondent were set aside, and judgment was entered for the appellant. The respondent was ordered to pay the appellant's costs of the proceedings at first instance and of the appeal, with a certificate for the appeal costs under the *Suitors Fund Act 1951* if qualified.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the verdict and judgment for the respondent made by Robison DCJ on 22 March 2012 and in lieu thereof enter a verdict and judgment for the appellant.

3. The respondent to pay the appellant's costs of the proceedings at first instance and of the appeal but to have with respect to the latter a certificate under the Suitors Fund Act 1951, if otherwise qualified.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PRESTON CJ

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Ratio Decidendi

Legal Principle Established

Established by: PRESTON CJ

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