Galea v Bagtrans Pty Limited [2010] NSWCA 350

New South Wales Court of Appeal

CITATION: Galea v Bagtrans Pty Limited [2010] NSWCA 350

HEARING DATE(S): 13 October 2010

JUDGMENT DATE: 15 December 2010

JUDGMENT OF: Allsop P at 1; Hodgson JA at 9; Macfarlan JA at 88

(1) Appeal allowed. (2) Orders below set aside. (3) Verdict and judgment for Mr Galea against Bagtrans and Adecco for damages to be assessed. DECISION: (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.]

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.