NEW SOUTH WALES COURT OF APPEAL
CITATION:
Galea v Bagtrans Pty Limited [2010] NSWCA 350
FILE NUMBER(S):
2010/11041
HEARING DATE(S):
13 October 2010
JUDGMENT DATE:
15 December 2010
PARTIES:
John Francis GALEA (appellant)
BAGTRANS PTY LIMITED (ACN 078 742 588) (first respondent)
ADECCO INDUSTRIAL PTY LIMITED (second respondent)
ALLIANZ AUSTRALIAN INSURANCE LIMITED (third respondent)
JUDGMENT OF:
Allsop P Hodgson JA Macfarlan JA
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
2463/2006
LOWER COURT JUDICIAL OFFICER:
O'Toole DCJ
LOWER COURT DATE OF DECISION:
12 October 2009
COUNSEL:
S NORTON SC/ E WELSH (appellant)
R CAVANAGH SC (first respondent)
D KELLY (second respondent)
K REWELL SC/ P NOLAN (third respondent)
SOLICITORS:
Brydens Law Office (appellant)
HWL Ebsworth Lawyers (first respondent)
Gillis Delaney Lawyers (second respondent)
Moray & Agnew Solicitors (third respondent)
CATCHWORDS:
PROCEDURE – Appeal – Whether errors in the reasoning of the primary judge justified appellate intervention.
TORT – Negligence – Non-delegable duty of employer – Labour hire company – Truck driver hired out to truck owner – Negligence of truck owner resulting in defective seat – Injury to truck driver caused thereby – Whether employer vicariously liable.
TORT – Motor accident – Injury caused by truck jolting on potholes – Whether this a “motor accident” within the Motor Accidents Compensation Act 1999.
EVIDENCE – Jones v Dunkel inference from failure to call witnesses – Whether available only against the party who did not call the witnesses, or generally against all parties.
LEGISLATION CITED:
Carriage of Goods by Sea Act 1924 (UK)
Civil Liability Act 2002 (NSW), s 5Q
Motor Accidents Act 1988
Motor Accidents Compensation Act 1999
CATEGORY:
Principal judgment
CASES CITED:
Australian Breeders Co-operative Society Ltd v Jones [1997] FCA 1405; (1997) 150 ALR 488
Bankstown Foundry Pty Limited v Braistina [1986] HCA 20; (1986) 160 CLR 301
Blatch v Archer (1774) 1 Cowp 63; 98 ER 969
Cafe v Australian Portland Cement Pty Ltd [1965] NSWR 1364; 83 WN (Pt 1) (NSW) 280
Clyde Local Co v English [1938] AC 57
Commercial Union Co of Australia Limited v Ferrcom Pty Ltd (1991) 22 NSWLR 383
Davie v New Merton Board Mills Ltd [1959] AC 604
DIB Group Pty Ltd t/as Hill & Co v Cole [2009] NSWCA 210
Earle v Castlemaine District Community Hospital [1974] VR 722
Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672
Leichhardt Municipal Council v Montgomery [2007] HCA 6; 230 CLR 22
Northumberland Insurance Co Ltd (in liq) v Alexander (1988) 13 ACLR 170
Owen v State of New South Wales [2004] NSWCA 165
Payne v Parker [1976] 1 NSWLR 191
Pollard v Baulderstone Hornibrook Engineering Pty Limited [2008] NSWCA 99
Riverstone Meat Co Pty Ltd v Lancashire Shipping Co (The ‘Muncaster Castle’) [1961] AC 807
Scott v Davis [2000] HCA 52; 204 CLR 333
Stevens v Brodribb Sawmilling Co Pty…
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- AGLC
- Galea v Bagtrans Pty Ltd [2010] NSWCA 350
- Case
- [2010] NSWCA 350
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the primary judge erred in finding that neither Bagtrans nor Adecco breached their duty of care to Mr Galea, and whether the primary judge erred in failing to find that Mr Galea's injury arose from a motor accident within the meaning of the *Motor Accidents Compensation Act 1999* (NSW). Further issues included whether the primary judge applied the correct test of causation and whether she adequately considered Mr Galea's claims for economic loss and domestic assistance. Bagtrans, by way of a notice of contention, also raised the issue of indemnity from Allianz if it were found liable.
The Court of Appeal allowed the appeal, setting aside the orders of the primary judge. The Court found that the primary judge had erred in her findings. Specifically, the Court determined that Bagtrans owed Mr Galea a non-delegable duty of care as an employer, and that this duty extended to ensuring the safety of the vehicle provided. The Court also found that the evidence supported a finding that the truck's seat was defective and that this defect caused Mr Galea's injury, thereby establishing a breach of duty by Bagtrans and Adecco. The Court further held that the injury constituted a "motor accident" for the purposes of the Act.
Consequently, the Court of Appeal entered a verdict and judgment for Mr Galea against Bagtrans and Adecco for damages to be assessed. The Court also declared Allianz liable to indemnify Bagtrans under the compulsory third party policy and directed the parties to submit proposed minutes regarding the assessment of damages. Bagtrans, Adecco, and Allianz were ordered to pay Mr Galea's costs of the appeal.
Orders
Orders of the court
(1) Appeal allowed.
(2) Orders below set aside.
(3) Verdict and judgment for Mr Galea against Bagtrans and Adecco for damages to be assessed.
(4) Declare that Allianz is liable to indemnify Bagtrans under the terms of the compulsory third party policy covering the Mack vehicle.
(5) Direct that the parties on or before 15 February 2011 submit proposed short minutes to deal with the question of damages.
(6) Bagtrans, Adecco and Allianz to pay Mr Galea’s costs of the appeal.
(7) Other questions of costs reserved.
[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
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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