Patrick Stevedores No 1 Pty Ltd v Kilkelly

[2004] NSWCA 237

NSW Court of Appeal

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Interrogate

Catchwords

1. Motor Accidents
2. › Definition of motor vehicle
3. › Vehicle propelled by means other than human or animal power
4. › Exclusion for vehicle used on railway or tramway
5. › Whether portainer running on rails at container wharf was 'used on a railway or tramway'
6. › Meaning of 'railway' and 'tramway' as transport systems
7. › Motor Accidents Act 1988 (NSW), s 3(1), s 69(1)
1. Damages
2. › Personal injury
3. › Non-economic loss
4. › Assessment of severity as percentage of most extreme case
5. › Whether trial judge erred in finding myoclonic jerks caused by workplace accident
6. › Competing medical evidence
7. › Motor Accidents Act 1988 (NSW), Pt 6
1. Damages
2. › Personal injury
3. › Economic loss
4. › Past and future economic loss
5. › Attribution of loss between two separate accidents
6. › Broad approach to assessment
1. Practice and Procedure
2. › Costs
3. › Bullock order
4. › Separate proceedings against two defendants for separate accidents
5. › Plaintiff succeeding against both defendants
6. › Whether Bullock order properly made
7. › Principles governing Bullock orders

Quick Take

A vehicle running on rails is not 'used on a railway or tramway' within the exclusion in the s 3(1) definition of 'motor vehicle' in the Motor Accidents Act 1988 (NSW) unless it runs on the rails of a transport system on which passenger or goods trains or trams run. Bullock orders are not available where a plaintiff brings separate proceedings against two defendants for separate accidents and succeeds against both, even where the unsuccessful defendant's defence involved attributing the plaintiff's condition to the other accident.