Australia: Court considers circumstances giving rise to an incident for the purposes of s 3 of the Motor Accidents Compensation Act 1999 - Galea v Bagtrans Pty Ltd [2010] NSWCA 350

Curwoods Case Note
Last Updated: 28 December 2010
Article by Jennifer Casperson

Court considers circumstances giving rise to an incident for the purposes of s 3 of the Motor Accidents Compensation Act 1999

Judgment date: 15 December 2010

Galea v Bagtrans Pty Ltd [2010] NSWCA 350

Court of Appeal NSW1

In Brief

  • When determining whether or not a plaintiff has sustained an "injury" for the purposes of s 3 of the Motor Accidents Compensation Act 1999 (MACA), it is not necessary to show that the injury has been caused by an accident. It is sufficient in the alternative that there be an incident which causes the injury.
  • An injury caused by a sudden jolting of a vehicle on a road is sufficient to satisfy the requirements of s 3 of the MACA, however each matter will turn on its own facts.


The appellant, Mr Galea, was employed by Adecco Industrial Pty Ltd (Adecco) which was a labour hire company. Mr Galea was hired out as a truck driver to Bagtrans Pty Ltd (Bagtrans).

In 2003, in the course of Mr Galea's employment, he drove a Mack truck owned by Bagtrans from Sydney to Tarcutta. The seat of the Mack truck caused Mr Galea discomfort driving and he complained to Bagtrans that the seat was defective.

On 14 May 2004 Mr Galea drove the Mack truck from Tarcutta to Yass. During the journey, the seat again caused Mr Galea discomfort and after driving through a stretch of road with potholes, Mr Galea felt three significant jolts and heard his neck crack. Mr Galea pulled the Mack truck over at a truck stop at Yass, contacted Bagtrans and refused to drive the Mack truck the rest of the way home.

Mr Galea sued Bagtrans and Adecco for damages for personal injuries alleged to have been suffered on 14 May 2004 as a result of driving the Mack truck. The relevant CTP insurer of Bagtrans denied indemnity on the basis that the injuries sustained by Mr Galea were not injuries in accordance with s 3 of the MACA.

The proceedings were heard before her Honour, Judge O'Toole in the District Court who found in favour of Bagtrans, Adecco and the CTP insurer. Mr Galea was ordered to pay the defendant's costs.

Court of Appeal

Mr Galea brought proceedings in the NSW Court of Appeal, appealing against the trial judge's decision.

The majority decision was delivered by Hodgson JA.

Senior Counsel for the CTP insurer, argued that the injury sustained by Mr Galea was neither an accident nor an incident and as a consequence, did not fall under the provisions of s 3 of the MACA.

Justice Hodgson held that the CTP insurer was liable to indemnify Bagtrans under the terms of the Compulsory Third Party Policy covering the Mack truck.

His Honour confirmed that it was not necessary for the purposes of s 3 of the MACA and the definition of "motor accident" that there be an accident. It was sufficient that there be an incident. His Honour held that there was medical evidence that strongly supported the view that the tearing of Mr Galea's ligament was caused by one or more of the three jolts, rather than whilst driving over the 5km to 10km stretch of pot holed road.

Dr Conrad who gave evidence on behalf of the plaintiff in the trial proceedings, stated that the cracking sound heard by Mr Galea was due to the movement of the vertebrae and a subsequent tearing of a ligament. However, Dr Conrad conceded that he was unable to tell when the actual tearing of the ligament occurred, i.e. at some stage during the journey or during one of the three significant jolts felt by Mr Galea.

At paragraph 80, his Honour stated the following:

In my opinion, the common sense conclusion, consistent with Dr Conrad's evidence, is that it is more probable than not that the tearing of the ligament was caused by one or more of the three major jolts which caused the neck to crack and which were sufficiently serious to be specifically noted by Mr Galea, rather than by more general and less severe jolting over the 5 to 10 minute period.

His Honour held that the CTP insurer was liable to indemnify Bagtrans in accordance with the compulsory third party policy.

The court apportioned liability 15% to Adecco and 85% to Bagtrans.


The Court of Appeal has offered limited assistance to parties in determining what is an incident for the purposes of s 3 of the MACA. In circumstances where a plaintiff sustains an injury due to the jolting motion of a vehicle, and it can be shown by medical evidence that the injury was causally related to that jolting motion, then it is likely that the CTP policy will respond. However, each case will turn on its own set of facts.

1 Allsop P; Hodgson JA and Macfarlan JA.

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