Court considers circumstances giving rise to an incident for
the purposes of s 3 of the Motor Accidents Compensation Act
Judgment date: 15 December 2010
Galea v Bagtrans Pty Ltd  NSWCA 350
Court of Appeal NSW1
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
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
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
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
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
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
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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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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