Galea v Bagtrans Pty Ltd

Case [2010] NSWCA 350

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…

Continue reading Galea v Bagtrans Pty Ltd

Sign in free to access the full text

Details
AGLC
Galea v Bagtrans Pty Ltd [2010] NSWCA 350
Case
[2010] NSWCA 350
Decision Date

CaseChat Overview and Summary

The case of *Galea v Bagtrans Pty Ltd* involved an appeal to the Court of Appeal of New South Wales concerning a claim for damages for personal injury. The appellant, Mr Galea, a truck driver employed by Adecco, a labour hire company, and hired out to Bagtrans, alleged he suffered injury due to a defective seat in a truck he was driving for Bagtrans. He sought judgment against both Bagtrans and Adecco, and also against Allianz, the insurer of the truck.

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

Mr Galea appeals against that decision, joining as respondents Bagtrans, Adecco and Allianz, seeking judgment in favour of Mr Galea and remission to the District Court for a re-trial. Outline of facts I will commence with an outline of facts either not in dispute or accepted by the primary judge and not challenged on appeal. Mr Galea was born in 1964. Between 1982 and 1992 he was employed as a truck driver and labourer by Telecom. He had a period of unemployment between 1992 and 1995. From 1995 to the date of the accident he was employed by Adecco, a labour hire company. He was hired out by Adecco to drive for a number of different organisations, and he commenced driving for Bagtrans in the latter part of 2003. The work with Bagtrans involved him driving from Sydney to Tarcutta, and there exchanging either prime movers or entire trucks with a driver who had come from Victoria, and then returning to Sydney. During the course of this work, Mr Galea came across a Mack prime mover which had a defect that caused Mr Galea discomfort when driving it. In about November 2003, Mr Galea complained about this to Roy and Pat, who worked for Bagtrans; and at the direction of Roy Mr Galea obtained a defect book and made a complaint in it concerning the truck (judgment [396] – [397]). On Thursday 13 May 2004, Mr Galea was told by Pat to drive a truck to Tarcutta and there exchange it for a Mack truck to be brought back to Blacktown. Mr Galea asked Pat which Mack truck it was, and Pat said it was the same one; and Mr Galea asked Pat if the seat had been fixed, and Pat said “Yes” (judgment [409]). Mr Galea drove to Tarcutta between 5pm on 13 May and 2am on 14 May (judgment [319]), where he collected the Mack truck from a Mr White. Mr White had driven the Mack truck from Campbellfield in Victoria, having been told by a Bagtrans employee or agent Sue that the Mack truck’s seat was to be repaired in New South Wales (judgment [410]). Between 2am and 5am on 14 May, Mr Galea drove the truck from Tarcutta as far as Yass. A defect in the truck’s seat caused Mr Galea discomfort driving the truck (judgment [381]). Mr Galea contacted Bagtrans from Yass, and was telephoned there by Pat. Mr Galea told Pat he would not drive the truck the rest of the way to Sydney. Roy came to Yass and drove the truck away. Mr Galea did not accept an offer from Roy of a lift back to Sydney on that truck, but got a lift with another truck that he signalled on the freeway. When Mr Galea got back to Sydney, he informed Bagtrans and Adecco that he would not drive Bagtrans vehicles any more. The Mack truck was fitted with a new driver’s seat after being brought back to Sydney. On 17 May 2004 Mr Galea consulted his GP Dr Phang, whose notes of that day (Blue 1) record (as best I can decipher): 17 May 2004 [?] No past sports injury Truck-driver bounced on 13/5/04 no direct trauma Complains of cracks at posterior neck on ROM (range of movement) No neuro deficit arms/fingers ? ? ? tender range of movement [because] sore Reflex right/left [?] – fingers 1. Voltaren 2. Neck x-ray 3. Brace.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In cross-examination, it was put to Mr Galea by counsel for Bagtrans that Bagtrans did not have a form recording his complaint in November 2003, and that he had not complained to Roy. However, Roy was not called to give evidence, and there was in evidence a letter from lawyers for Bagtrans asserting that a Truck Safe Repair Request Booklet had been taken from Bagtrans by an investigator retained by QBE Workers Compensation (NSW) Limited and had not been returned to Bagtrans (Blue 11). Decision of primary judge The primary judge gave a very lengthy and very detailed judgment, containing however much repetition, in which she made the following findings relevant to this appeal: (1)that she was not satisfied the complaint in November 2007 concerned the Mack truck’s seat rather than some other features of the truck (judgment [376] – [378], [396] – [398]); (2)that Bagtrans’ drivers used the Mack truck’s seat uneventfully between December 2003 and 13 May 2004, and Bagtrans systematically identified and rectified defects in other components of the truck (judgment [393], [403], [408], [557]); (3)that she was not satisfied that Bagtrans failed to rectify the defect reported in November 2003 (judgment [398]); (4)that she was not persuaded that the Mack truck or its seat was defective on 13 May 2004 (judgment [409], [560]); (5)that accordingly, she was not satisfied that Bagtrans or Adecco breached its duty of care; (6)that she was not persuaded that Mr Galea was injured during and as a result of a motor accident on 14 May 2004 (judgment [538]); (7)that any jolting or jarring motion caused by a defect in the Mack truck’s seat was inconsequential (judgment [538], [555], [562]); and (8)that even if Mr Galea did suffer an injury which was the result of and caused during a motor accident on 14 May 2004, she was not persuaded that a relevant injury necessitated the cervical surgery. Issues on appeal The appellant relies on the following grounds of appeal: 1The trial judge erred in failing to find breach of duty of care by the First Respondent. 2The trial judge erred in failing to find breach of duty of care by the Second Respondent. 3The trial judge erred in failing to find that the fault of the First Respondent arose as a result of a defect in the relevant vehicle so as to give rise to a liability under the Motor Accidents Compensation Act. 4The trial judge failed to apply the correct test of causation. 5The trial judge erred in law in finding that the Appellants complaints of injury were unrelated to the subject accident. 6The trial Judge erred in failing to consider whether the Appellant suffered a reduction of his earning capacity. 7The trial judge failed to give adequate reasons for rejecting the Appellants claim for economic loss. 8The trial judge failed to give adequate reasons for rejecting the Appellants claim for domestic assistance Bagtrans put on a Notice of Contention relying on the following ground: 1.The Trial Judge should have found that, in the event that Bagtrans was negligent and liable to the Appellant, the claim was a motor accidents claim and Bagtrans was entitled to be indemnified by Allianz Australia Insurance Limited under the terms of the Compulsory Third Party Policy covering the vehicle.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.