Attwood Marshall Lawyers Legal Practice Director Jeff Garrett delves into a change in recent legislative amendments to explore a specific legal question: can an excavator be considered a “motor vehicle,” impacting the compensation you can receive if you are involved in an accident?
The dangers of excavation
At construction sites, powered mobile plants like excavators expose workers to significant health and safety risks. The excavator could overturn, or objects could fall onto the operator. The excavator could collide with other workers, site vehicles, or other hazards, such as powerlines. Mechanical failures and detachments can also result in serious injury or fatalities.
Excavation work can, by its nature, involve high-risk construction work. Given this, robust safety protocols and training programmes must be in place on-site to mitigate the chance of accidents.
Even seemingly minor excavator accidents can leave you with a range of injuries like back pain, head trauma or broken bones. These injuries can impact your ability to work, warranting a compensation claim to cover medical expenses and lost wages.
At the other end of the scale, severe excavation accidents can be life-threatening, necessitating immediate hospitalisation and extensive medical interventions. A long road to recovery usually follows, with overwhelming physical, emotional and financial burdens on the injured individual and their family.
As these accidents are likely to happen on a worksite, injured parties will likely pursue workers’ compensation claims to help lighten the financial burden.
But since 2011, individuals involved in excavator accidents also have another route they can pursue for compensation in New South Wales.
That’s due to amendments to the Motor Accidents Compensation Act 1999 and the introduction of the Road Transport (General Amendment (Tracked Vehicles) Regulation 2011 to clarify the definition of “motor vehicle.”
The changes define “vehicle” to include “any description of tracked vehicle (such as a bulldozer), or any vehicle that moves on revolving runners inside endless tracks that is not used exclusively on a railway.”
This means that vehicles on tracks/rollers (such as excavators) are now included under the definition of “motor vehicle.” Understanding these nuances can significantly impact the potential compensation you receive.
Before this amendment, it would have been tough for individuals to pursue motor vehicle accident claims for an excavator accident.
The following 2012 decision, for example, showed the need for a change in law. The injured individual sought to file a motor vehicle accident claim for his excavation accident. After an initial win in the lower courts, he was rejected at the appeal level. The main sticking point was that the recent legislative amendments only affected claims made on or after 3 March 2011. And this incident occurred long before that.
Case study: Andy’s Earth Works v Verey [2012] NSWCA 32
In 2006, a worker was riding in the bucket of an excavator at work when the driver suddenly dropped the bucket down to the earth, causing him to suffer injury. Although the incident occurred on a worksite and involved an excavator, the worker considered the incident to be a motor vehicle accident and sought damages under the Motor Accidents Compensation Act 1999 (“the Act”).
To be successful in his claim, the worker had to establish that the excavator fit within the proper definition of a ‘motor vehicle’ as per section 3 of the Act.
The definition dictated that the vehicle concerned must be propelled by a motor that forms part of the vehicle. It included any self-propelled vehicle on wheels.
The relevant excavator involved a base with long tracks that moved to propel the excavator forward. The trial judge determined that the excavator was a self-propelled vehicle on wheels and, therefore, a vehicle within the definition of the Act.
However, the decision was appealed. On appeal, the appellant relied on Doumit v Jabbs Excavations Pty Ltd [2009] NSWCA 360, in which the Court of Appeal had determined that the excavator was not a motor vehicle as the rollers, not wheels, caused the tracks of the excavator to move.
The Court of Appeal found that the tracks did not assume the shape of wheels. Further, it considered that the excavator’s body did not technically sit ‘on’ them.
As such, the Court of Appeal overturned the trial judgment and ruled that the excavator did not fall within the definition of ‘motor vehicle.’ Therefore, the worker was not entitled to bring a claim for compensation under the Motor Accidents Compensation Act 1999.
If the accident had occurred after 3 March 2011, the claimant may not have been so unlucky.
Attwood Marshall Lawyers – helping injured people get the compensation they deserve
People injured in accidents involving excavators and similar worksite equipment or machinery will often have a viable workers’ compensation claim. Due to these legislative changes, however, these claimants may also have a viable claim for compensation under the Motor Vehicle Compensation Act 1999.
This is important to know because a claimant will often receive greater compensation if they succeed with a motor vehicle compensation claim than with a workers’ compensation claim.
If an unexpected accident has turned your life upside down, it is always best to seek early legal advice and assistance to be supported through the process.
Our Compensation lawyers practice exclusively in personal injury claims and are trained to deal with the complexities of workplace and motor vehicle accident claims. They will be able to advise you on which compensation scheme is best suited to your circumstances and guide you through the claims process each step of the way.
If you have suffered an injury at work, in a motor vehicle accident, or perhaps a combination of both – please contact our Compensation Law Department Manager Tyra Hall on direct line 07 5506 8261, or email thall@attwoodmarshall.com.au, or free call 1800 621 071 for a free, no obligation consultation with our personal injury lawyers on the Gold Coast.
