Galea v Bagtrans Pty Limited

Galea v Bagtrans Pty Limited - [2010] NSWCA 350 - NSWCA 2010 case summary — Zoe

[54]

Jones v Dunkel 2 The drawing of any "Jones v Dunkel inference", that is that the uncalled evidence or missing material would not have assisted the party's case (Jones v Dunkel at 308, 312 and 320-321) arises from the unexplained failure by a party to give evidence or call witnesses or to tender documents or other evidence or produce material to an expert witness: J D Heydon, Cross on Evidence (2010, 8th Aust Ed, LexisNexis Butterworths) at 40. The absence of the evidence is part of the rational weighing of evidence in the case. The basis of the rule is "plain common sense": Jones v Dunkel at 320-321 (per Windeyer J). It is not an admission to found a fact such as the destruction of evidence or the many acts that might found an admission: Cross on Evidence (8th Aust Ed) at 1177-1181. The rule is to be understood as part of the adversary system in which parties are not obliged to call witnesses. It is the engrafting on to that of a principle concerned with proof of facts and fact finding: Payne v Parker [1976] 1 NSWLR 191 at 194 (Hutley JA), authorising a process of reasoning: Payne v Parker at 200 (Glass JA). It cannot be used to draw a positive inference if the evidence does not otherwise admit of a rationally drawn inference; rather, evidence may (not must: Cafe v Australian Portland Cement Pty Ltd [1965] NSWR 1364; 83 WN (Pt 1) (NSW) 280 at 287) be accepted and inferences drawn more readily. That process is one of fact finding in the trial not readily capable of dissection between parties, for, ex hypothesi, there is evidence available already upon which the inference can be drawn against all. Jones v Dunkel, itself, was a case with two defendants: the owner and the driver of the diesel truck. They were jointly represented. The driver did not give evidence. No point was made of the greater confidence in the drawing of inferences against one party only. It is not an easy distinction to make: drawing an inference, on this hypothesis, that is available against A, and drawing the same inference "more confidently" against B. Such subtlety and complexity should not be introduced into fact finding, with or without a jury. 3 Here, for the reasons given by Hodgson JA there was sufficient evidence to conclude that Mr Galea's evidence about the seat in November 2003 should be accepted, that the seat had not been repaired before 14 May 2004, that the seat was defective and that Pat told him that the seat had been fixed (when it had not been). These conclusions were open to be drawn by inference even without taking into account the failure of Bagtrans to call Pat or to give any evidence directed to maintenance and repair. Conclusions of fact, however, are made upon the evidence as a whole and "all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted": Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 971. 4 The decision whether or not to make use of the inference in Jones v Dunkel in a multiparty case might be affected by the fairness of drawing inferences more confidently and by the relationships of the parties at the trial.

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Adecco's breach of duty 5 The resolution of Adecco's position requires the application of well-known principle. No submission was put that Adecco was not the employer; no attempt was made to say that Bagtrans was the employer pro hac vice. Adecco would be perfectly able to structure its affairs and legal relationships to carry on business as a procurer of employees for others to employ. It did not do so. Mr Galea was its employee. It therefore was, and at all times remained, subject to a non-delegable duty to exercise reasonable care to provide and maintain its employee with a safe place of work, a safe system of work and safe plant and equipment: Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672 and TNT Australia Pty Limited v Christie [2003] NSWCA 47; 65 NSWLR 1. I respectfully agree with the reasons of Mason P in TNT. The non-delegability of that duty means that the employer is liable for any breach of the duty whoever was retained by Adecco to perform it. This is reflected in the Civil Liability Act 2002 (NSW), s 5Q, in the comment of Gummow J in Scott v Davis [2000] HCA 52; 204 CLR 333 at 417 [248] that a non-delegable duty involves the imposition of strict liability upon the defendant (that is for breach of the duty by others) and in the comments of Gleeson CJ in Leichhardt Municipal Council v Montgomery [2007] HCA 6; 230 CLR 22 at 27-28 [6]-[8]. 6 Of course, in examining whether an employer has breached the duty, notions of reasonableness as to what the employer can control are relevant. However, care should be taken not to confuse the assessment of whether an employer has personally exercised reasonable care with whether reasonable care was exercised. Here, the employer placed Mr Galea with Bagtrans, in effect, to work for Bagtrans. The place of work, the system of work and the plant and equipment for work for Mr Galea's employment with Adecco were those of Bagtrans. Thus, Adecco's non-delegable duty was breached if Bagtrans failed to exercise care in their provision. It is not to the point to say that Adecco could not control how Bagtrans maintained its equipment or what system it had for the repair of truck seats. Adecco placed Mr Galea at Bagtrans for his employment with it, Adecco. The plant and equipment (the seat on the truck) were not maintained with due care and the system of work and the plant and equipment were unsafe. That Adecco might not be personally at fault (which Hodgson JA's reasons show is not the case) is not to the point: TNT at 10-16 [45]-[70]. This breach will include the negligent maintenance of equipment. Maintenance of equipment is part of the duty to exercise care in providing safe equipment. The duty cannot be delegated. 7 In Wilsons and Clyde Local Co v English [1938] AC 57 at 80-81 Lord Wright drew the clearly available analogy with the carrier's duty under Art III r 1 of the Hague Rules (incorporated into the Carriage of Goods by Sea Act 1924 (UK)) to exercise due diligence to make the ship seaworthy. The non-delegability of that duty was made clear in Riverstone Meat Co Pty Ltd v Lancashire Shipping Co (The 'Muncaster Castle') [1961] AC 807. That duty begins when the ship comes into the carrier's control. It will not cover defects in design or construction that could not be discovered by the exercise of due diligence: W Angliss and Company (Australia) Pty Ltd v Peninsular and Oriental Steam Navigation Company [1927] 2 KB 456 and The 'Muncaster Castle' at 841, 867, 872 and 877. However, the carrier cannot absolve itself from liability merely by contracting out maintenance of the ship to apparently competent contractors. Nor can an employer such as Adecco absolve itself by requiring the employee to work in, or by placing the employee at, the business of another person. That other person's place and system will become the place and system of the employment in respect of which Adecco has the non-delegable duty. This duty includes maintenance of equipment: Davie v New Merton Board Mills Ltd [1959] AC 604 at 617-618, 624-625, 628-629, 642, 646 and 647 and TNT at 13-14 [55]-[58]. 8 It may be that the misleading of Mr Galea by Pat's misrepresentation would not fall within the scope of the non-delegable duty. On the facts here, it can, however, be seen as indicative of an inadequate system of maintenance. One would not assume or infer that Pat said what he did knowing that the seat had not been fixed. His mistake assists in the inference that Bagtrans had an inadequate system of keeping track of repairs and maintenance. 9 HODGSON JA: This appeal arises from proceedings in which the appellant Mr Galea had sued a truck owner (Bagtrans) and his own employer (Adecco) for damages for personal injuries alleged to have been suffered as a result of Mr Galea driving the truck on 14 May 2004; and in which Bagtrans and Adecco put on cross-claims against each other seeking indemnity or contribution. The third respondent Allianz, the insurer of Bagtrans under the Motor Accidents Compensation Act 1999, was on its own application joined as a third defendant to Mr Galea's claim. 10 On 12 October 2009, O'Toole DCJ gave reasons for judgment, and ordered that there be verdict and judgment for Bagtrans, Adecco and Allianz against Mr Galea, ordered Mr Galea to pay their costs, and dismissed both cross-claims. 11 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.

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Outline of facts 12 I will commence with an outline of facts either not in dispute or accepted by the primary judge and not challenged on appeal. 13 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. 14 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. 15 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]). 16 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. 17 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]). 18 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]). 19 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. 20 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. 21 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

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In my opinion, there is no material inconsistency here, and on the contrary, there is very substantial consistency. The difference between "bounced on 13 May" and a "motor accident" on 14 May is immaterial: Mr Galea's task commenced in the evening of 13 May and the bouncing incident, which was alleged to be a motor accident within the meaning of the relevant legislation, occurred not long after 2am on 14 May. The reference in Dr Phang's notes of 17 May to "no direct trauma" is consistent with Mr Galea's evidence that he felt no pain in the neck at the time, and is by no means inconsistent with the conclusion that the neck injury was caused by the bouncing. The primary judge's finding of inconsistency is particularly unsatisfactory in circumstances where no suggestion of this inconsistency was put to Mr Galea or otherwise raised in the case. 39 A further error is the assertion of inconsistency in Mr Galea's case arising from a history recorded in Exhibit R of having to drive the Mack truck "without repair of the seat for five or six months" (judgment [330]). This was a history recorded by a Dr Ellis (Blue 143). Dr Ellis did not give evidence, and it was not put in cross-examination of Mr Galea that he had actually given this history to Dr Ellis, or that he had driven the Mack truck between the three or so occasions he gave evidence about in around November 2003, and the driving on 14 May 2004. In those circumstances, in my opinion it was not open to the primary judge to treat the history recorded by Dr Ellis adversely to Mr Galea. 40 A further error lies in the assertions (judgment [473] - [474]) that Mr Galea did not complain of a neck injury on 17 May 2004, and on that day Dr Phang did not diagnose a neck injury. In my opinion it is clear from Dr Phang's notes that Mr Galea complained of a sore neck, that Dr Phang advised a neck brace and that he arranged for an x-ray of the neck. This error by the primary judge leads to a further error in par [540] in the assertion that Mr Galea did not associate his sore neck with his driving the Mack truck until October 2004. This disregards Dr Phang's record of a sore neck associated with "truck driver - bounced on 13 May", and gives an unreasonable interpretation to Dr Ng's record of neck pain since 13 May (in circumstances where there was no neck pain prior to the driving which commenced on 13 May, three cracks in the neck felt soon after 2am on 14 May, albeit then without pain, and pain felt in the neck on waking on 15 May), again in circumstances where no alleged inconsistency was put to Mr Galea. 41 A further error was a finding (judgment [402]) that Mr White's evidence concerning the seat undermined Mr Galea's evidence that there was exactly the same defect as in November 2003. The defect in November 2003 identified by Mr Galea was that sitting on the seat was like sitting on cement. Mr White identified a different problem with the seat, namely that it was loose and unstable; but he also said it was "very rigid", "there was a lot of jarring", and "he could feel every bump on the road", all these descriptions being consistent with the problem identified by Mr Galea in November 2003 and complained about in May 2004. 42 A finding which may not be such a clear error, but which in my opinion is not adequately supported by evidence, is a finding that Bagtrans systematically identified and rectified defects in other components of the Mack truck. There was evidence that some such defects were identified and rectified; but it is notable that Bagtrans' records did not refer to the defect reported by Mr Galea in November 2003 and thus do not support a finding that there was anything like a reliable system of dealing with all defects reported. 43 In my opinion, these errors, particularly in combination, were material in relation to the primary judge's findings (1) to (7) above, and they vitiate these findings; and as a result, this Court should either come to its own view on these matters or order a new trial. In my opinion, this Court can and should come to its own view on these matters. 44 In my opinion, particularly in the absence of any evidence to the contrary from Bagtrans, there is no reason why the Court should not accept the evidence of Mr Galea that in November 2003, the seat of the Mack truck was like sitting on cement or something, and that his complaint to Bagtrans was to this effect. 45 In my opinion, in circumstances where there is no record of anything being done to the seat between November 2003 and May 2004, where the seat was in fact replaced immediately after the truck was brought to Sydney on 14 May 2004, where Mr Galea described the problem as exactly the same as in November 2003, where Mr White identified problems including a problem similar to that identified by Mr Galea, and where Bagtrans led no relevant evidence apart from records of a few complaints about and repairs to the truck, it should be inferred that the problem identified by Mr Galea in November 2003 was not rectified prior to 14 May 2004, and that this was because Bagtrans had not acted effectively to have the problem rectified. These inferences are supported by Jones v Dunkel [1959] HCA 8; (1958-1959) 101 CLR 298. The circumstances that it may be inferred that other drivers used the truck in that period, and that Bagtrans produced no record of any complaint by them, is some indication to the contrary; but in my opinion it is insufficient to outweigh the considerations I have identified. The circumstance referred to by the primary judge, and relied on by the respondents, that no expert evidence was called by Mr Galea, is in my view of little weight: the faulty seat was replaced, there was no suggestion that it was ever available for inspection, and it was Bagtrans rather than Mr Galea who might have been able to lead expert evidence about its condition. 46 In my opinion, in the absence of any evidence from Pat and of any explanation for his not giving evidence, there is no reason for not accepting Mr Galea's evidence that Pat told him that the Mack truck seat had been fixed. 47 In my opinion, Mr Galea's evidence of three jolts causing cracks in his neck, and neck pain felt the following morning (15 May), should be accepted; and it is clear that on 17 May he consulted Dr Phang complaining of a sore neck, which he associated with the bouncing in his truck, clearly in my opinion referring to the jolts of which he gave evidence. 48 There was no significant submission by the respondents that, if so much were to be established, this Court should not find some injury caused to Mr Galea by reason of the defective seat, and by the truck's bouncing on potholes during the five to ten kilometres of potholed road described by Mr Galea. In my opinion, having regard to the lack of relevant symptoms prior to the incident, the early onset of symptoms after the incident, and the medical evidence, particularly that of Dr Conrad, this Court should make that finding. The evidence of Dr Reid and Dr Maxwell (medical experts called for the respondents) in my opinion goes more to the extent and the consequences of any such injury, than to the question whether there was any injury at all: Dr Reid put the contribution of the incident to Mr Galea's condition at no more than one-tenth (Blue 212); and Dr Maxwell said his pre-existing condition was "primarily" responsible for his subsequent symptoms and his operation (Blue 228). The questions of what precisely caused the injury, and of the seriousness and consequences of the injury, are other matters; and I will return to the former when I consider whether the case is governed by the Motor Accidents Compensation Act, and to the latter if and when I consider the question of damages. 49 On the findings I have made, in my opinion Bagtrans did breach its duty of care to Mr Galea, in failing to attend within reasonable time to correcting a potentially dangerous defect to which its attention had been drawn, and in giving Mr Galea the incorrect information that the seat had been fixed; and these breaches of duty did cause injury to Mr Galea. Thus the cause of action in negligence was made out against Bagtrans.

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(3) If so, how should liability be apportioned? 51 As regards (1), in considering the liability of Bagtrans, I have found in favour of Mr Galea on a number of issues partly because neither Pat nor Roy nor other evidence from Bagtrans was called. The inference that the problem with the seat remained the same in May 2004 as it had been in November 2003 was assisted by the absence of evidence from Bagtrans. Mr Kelly for Adecco submitted that this reasoning did not operate against Adecco. 52 Mr Kelly advanced no authority for this submission, but it finds some support in the case of Australian Breeders Co-operative Society Ltd v Jones [1997] FCA 1405; (1997) 150 ALR 488. In that case, numerous investors sued, among others, the Australian Breeders Co-operative Society (ABCOS) and Mortgage Acceptance Nominees Ltd (MANL), for causing them to invest in a thoroughbred horse-breeding venture. MANL was the financier of the venture, and ABCOS provided a valuation of the bloodstock to MANL for the purpose of MANL's decision whether to finance the venture. 53 Wilcox and Lindgren JJ, with whom Lee J relevantly agreed, said (at 527-528): Counsel for ABCOS make the point that nobody connected with MANL gave evidence; accordingly there is no direct evidence as to the causative role of the ABCOS valuation. Referring to Jones v Dunkel (1959) 101 CLR 298, they say the inference should be drawn that the evidence of Lock, or other relevant MANL officers, would not have advanced MANL's case. Perhaps that is so, but the principle in Jones v Dunkel has no relevance to the investors' case against ABCOS. The discussion in Jones v Dunkel concerned the failure of a party to give evidence. No doubt the principle extends to the failure of a party to call as a witness a non-party who is associated with the party and available to give evidence. But that extension does not apply to this case. The MANL officers were not in the investors' camp: MANL and the investors were presenting opposing cases to the court. The MANL officers were as available to ABCOS as to the investors. As between the investors and ABCOS, no particular inference should be drawn from the fact they were not called; cf Northumberland Insurance Co Ltd (in liq) v Alexander (1988) 13 ACLR 170 (CA(NSW)). The issue of reliance should be determined, as it was by Davies J, by reference to such evidence as was available; that is, the documents. The documents clearly suggest MANL would not have settled the transaction - which therefore would not have proceeded at all - but for the ABCOS valuation of $1,565,000. 54 The reference to Northumberland Insurance Co Ltd (in liq) v Alexander (1988) 13 ACLR 170 is a reference to the proposition that the rule in Jones v Dunkel has no clear application to a case where both parties have failed to call evidence from people who had direct knowledge of relevant facts and who were available to give evidence. Priestley JA, with whom Samuels and Mahoney JJA agreed, said (at 177) that Jones v Dunkel had no clear application because "[a]ny argument from it seems to me to have been as relevant to the plaintiff at the hearing as to the defendants". 55 By analogy to Australian Breeders, it could be said in this case that Roy and Pat were not in Galea's camp or in Adecco's camp, but were as available to Galea as to Adecco. As between Galea and Adecco, no particular inference should be drawn from the fact that they were not called. 56 I do not accept Mr Kelly's submission. It is true that, in hearings involving a number of parties, it is possible (albeit most undesirable) that conflicting findings of fact may be made as regards different parties, because different evidence is admissible against them. In particular, if there is a fact which party A wishes to prove against party B and party C, and B has made an admission of that fact but C has not, then it is entirely possible that a court will find, in the same proceedings and as a result of the same hearing, the fact proved against B but not against C. However, in my opinion the application of Jones v Dunkel should not bring about this type of anomaly. 57 In Jones v Dunkel, Windeyer J quoted (at 320-321) Wigmore On Evidence (3rd ed, 1940, vol. 2, s. 285, p. 162): The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted.

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Windeyer J thought that such a rule is "plain commonsense" (at 321). 58 Similarly, in Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336 at 343, Kirby P (with whom Mahoney and Clarke JJA agreed) said: The rule in Jones v Dunkel is one of commonsense reasoning. It provides that an unexplained failure by a party to call a witness may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the case of the party who might be expected to call the witness. It is important to note that this is a facility. It is not an obligation in the reasoning of the decision-maker: cf Café v Australian Portland Cement Pty Ltd (1965) 83 WN (Pt 1) (NSW) 280 at 287; [1965] NSWR 1364 at 1370. 59 In Payne v Parker [1976] 1 NSWLR 191 at 201-202, Glass JA said that if a witness is equally available to both parties, for example, a police officer, then generally speaking a Jones v Dunkel inference is not available. However, Glass JA referred to judicial authority that this is not necessarily so. In Earle v Castlemaine District Community Hospital [1974] VR 722, Little J said (at 728-729): [I]t would, in my opinion, be erroneous to lay down any general rule that in cases where it could be fairly said the witness was equally available to both parties, the inference under discussion cannot be drawn against a particular party. Circumstances attending cases are infinite in their variety, and the question must depend upon the facts and circumstances of a particular case. Reference in this connexion may be made to Tozer Kemsley and Millbourn (A'asia) Pty. Ltd. v Collier's Interstate Transport Service Ltd. (1956) 94 CLR 384; [1956] ALR 271. In that case it is stated at (CLR) p. 397; (ALR) p. 278, that at the trial "the principal concern of each party appears to have been to wage a battle of tactics and to force the other to call Duncan, Power and Cann or one or more of them rather than to seek to elicit the whole truth. In the end the plaintiff called Watt alone, and the defendant called no-one, not even Dalton". It may be added that Watt was an accountant in the employment of the plaintiff, and Dalton was the manager of a branch store of the defendant. Duncan, Power and Cann were, it appears from the report, persons independent of either party, and it would seem they were equally available as witnesses to both parties. At (CLR) p. 403; (ALR) p. 282 Fullagar J, said: "In the second place, the election of the defendant to call no evidence has, to my mind, more than ordinary significance in this case. That it may have significance is well established: see e.g. May v O'Sullivan (1955) 92 CLR 654; [1955] ALR 671. The silence of one party cannot, of course, fill the place of actual evidence on an issue, but it may serve to resolve a doubt or an ambiguity, especially where the facts are peculiarly within the knowledge of the silent party."

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Accordingly, even if it were true that Roy and Pat were equally available to Galea as to Adecco, it does not automatically follow that a Jones v Dunkel inference cannot be drawn against Adecco. 60 In my opinion, in the circumstances of this case it is appropriate that the Jones v Dunkel inference available against Bagtrans is also available against Adecco. Bagtrans and Adecco resist the inference and it is equally adverse to both of them; but the approach advanced by Adecco would permit an adverse inference against Bagtrans but not against itself. This is inappropriate in circumstances where their interests coincide. 61 I do not think the principles considered in cases such as Jones v Dunkel and Commercial Union Co of Australia Limited v Ferrcom Pty Ltd (1991) 22 NSWLR 383 mandate or even authorise the kind of approach advanced by Adecco. The consideration that, if a party has available evidence that would assist it in obtaining a finding favourable to it, then that party can be expected to lead that evidence, is in my opinion one of general application, not one that operates (as does an admission) only against the party in question. It is not as such a rule of law, but rather an application of common sense to fact-finding that is permitted by the law. I do not think this approach involves unfairness to a party which does not itself have the evidence immediately available: parties in the same interest concerning an issue in the case can and often do co-operate and confer, and there is no property in a witness. If one party actually calls evidence that harms the case of another party in the same interest, that is not considered unfair to the latter party; and I do not think inferences drawn because of a failure to call evidence by one party can be considered unfair. It is highly undesirable that there be conflicting findings of fact as regards different parties in the same proceedings, and in my opinion that possibility should be limited to cases where it is unavoidable, as it may be in the case of admissions. 62 The approach favoured by Adecco would require a formal separation of the Jones v Dunkel inferences available in respect of each party, and in my opinion this approach is unduly formal and artificial in civil trials with multiple parties where the interests of those parties can coincide and their claims overlap. In addition, where there are a large number of parties with many cross-claims, the approach would unnecessarily lengthen hearings and judgments. 63 Accordingly, I would not make any different finding of fact as against Adecco from those made against Bagtrans. 64 As regards (2), Adecco contended there was nothing Adecco could reasonably be expected to have done to identify and avoid the risk in question that it did not do; so that it did not breach its duty. Further, any arguable breach of duty by Adecco was not shown to be causative of Mr Galea's loss. Adecco relied on Bankstown Foundry Pty Limited v Braistina [1986] HCA 20; (1986) 160 CLR 301, Pollard v Baulderstone Hornibrook Engineering Pty Limited [2008] NSWCA 99 at [37] - [62], and DIB Group Pty Ltd t/as Hill & Co v Cole [2009] NSWCA 210 at [54] - [55]. 65 An employer has a non-delegable duty to exercise reasonable care to provide employees with a safe place of work, a safe system of work, and safe plant and equipment: Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, TNT Australia Limited v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1. Where an employer entrusts another with the task of providing the employee with the place and/or system of work, and/or with plant and equipment, the employer will generally be vicariously liable for failure by that other person to exercise reasonable care in those matters: Civil Liability Act 2002 s 5Q. 66 The non-delegable duty in respect of plant and equipment does not extend to defects in plant and equipment that an employer obtains from a reputable vendor or manufacturer, where those defects are the product of the manufacturer's or vendor's negligence: Davie v New Merton Board Mills Limited [1959] AC 604, TNT. However, it was held in TNT that the non-delegable duty did extend to the maintenance and repair of plant and equipment: per Mason P at [60] - [62] and per Foster AJA at [174] - [179], although Davies AJA at [150] left the question open. 67 The employer may not be liable for casual acts of negligence by a person entrusted with providing the place of work or system of work or plant and equipment, or an employee of that person, if those casual acts fall outside the scope of the task so entrusted: cf Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 at 32 - 33. Thus, in cases where an employee of a labour hire company is sent to work for a surrogate employer, and is injured due to a failure of an employee of the surrogate employer to keep a proper lookout, the labour hire company may escape liability unless the failure can be linked with some failure of the surrogate to exercise reasonable care in the provision of a safe place or system of work, and safe plant and equipment. 68 In addition to the possibility of being vicariously liable for the negligence of the surrogate employer, a legal employer may also be liable for its own negligence if there are enquiries or instructions that a reasonable person in its position would itself have undertaken or given with a view to protecting the safety of its employee. 69 In the present case, in my opinion, the provision of a truck and seat which do not endanger the health of the driver is one aspect of the provision to the driver of a safe place and safe system of work; and conformably with TNT, both Bagtrans and Adecco are liable where, due to the negligence of Bagtrans, the seat has not been properly repaired. Accordingly, in my opinion, Adecco is vicariously liable for the negligence of Bagtrans in failing to have the seat repaired. 70 In my opinion also, a reasonable employer would have instructed Mr Galea to report to it, as well as to any surrogate employer, any safety issues that arose in his employment, in order that the employer could do what was open to it to do to attend to such issues. Adecco's failure to do this was a breach of a duty of its own; and in my opinion, this breach also contributed to Mr Galea's injury, because it can be inferred that pressure from Adecco would have probably caused Bagtrans to act. 71 Another contributing cause of Mr Galea's injury was the incorrect information given by Pat that the seat had been fixed; and a question arises whether Adecco is vicariously liable for that act of negligence by Bagtrans. In my opinion, it is. In my opinion, the giving of correct information concerning the safety of equipment is part of the task of providing a safe place and system of work, and safe plant and equipment. 72 Accordingly, Adecco is liable in negligence to Mr Galea, and it is necessary to address question (3), the apportionment of liability. 73 It was submitted for Bagtrans that an apportionment of two-thirds to Bagtrans and one-third to Adecco would be appropriate. That may possibly have been appropriate if the only negligence of Bagtrans was the failure to attend to the repair or replacement of the seat. However, the giving of incorrect information about the fixing of the seat was a serious breach of duty which made a major contribution to the occurrence of the injury; and although I have found Adecco is vicariously liable for that breach of duty, its responsibility for this particular breach should be considered small in comparison with that of Bagtrans. Overall, I would apportion liability 85 per cent to Bagtrans and 15 per cent to Adecco.

[105]

(2) whether the injury was "caused during" the use or operation of the vehicle (arising from the definition of "injury"). 76 It was submitted by Mr Rewell SC for Allianz that, even on the evidence of Dr Conrad, it was not shown that either of these requirements was satisfied. 77 Dr Conrad gave evidence (Black 163 - 164) that the cracking sound heard by Mr Galea was due to the movement of the vertebrae and the tearing of a ligament, and that the disc prolapse caused by that tearing may not have happened until later; and that the tearing of the ligament occurred as a result of force which, it was suggested in the case, resulted from the truck hitting the pothole and the seat not operating as it should have. In cross-examination (Black 178 - 179), Dr Conrad conceded that he could not tell which crack caused the problem, and that all a crack indicates is the movement of one vertebrae over the other, and that there was no way of knowing when the damage (tearing of the ligament) happened on the journey, or whether it was caused by one specific jolt or the general jolting. 78 Mr Rewell relied on Owen v State of New South Wales [2004] NSWCA 165, where it was held that any injury sustained by being jolted about for some two hours while being conveyed in a van, was not an injury sustained in an "accident", so as to engage the provisions of the Motor Accidents Act 1988. 79 Under the Motor Accidents Compensation Act, it is not necessary that there be an "accident": it is sufficient in the alternative that there be an "incident". In my opinion, the evidence of Dr Conrad strongly supports the view that the tearing of a ligament in this case was caused by driving over the five to ten kilometre stretch of potholed road, that is, it may be inferred, over a period of no more than about five to ten minutes. I note also that it was not put to Dr Conrad that it was equally possible that the tearing was caused by one or more of the three crack-causing jolts, or that it was not so caused; and in my opinion his evidence is at least consistent with the view that it is more probable than not that the tearing was caused by one or more of those jolts, rather than by the remainder of the journey over the potholed section of road. 80 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 five to ten minute period. 81 On that conclusion, there were one, two or three incidents causing injury; and the injury was caused during the use and operation of the vehicle. Even if I were wrong on that factual conclusion, in my opinion the jolting of the truck for a five to ten minute period over a five to ten kilometre stretch of potholed road is a sufficiently circumscribed unity to be considered as a whole to be an "incident", so that the two requirements I have identified would still be satisfied on that basis. 82 Accordingly, in my opinion the Motor Accidents Compensation Act does apply, and Allianz is liable to indemnify Bagtrans in accordance with the compulsory third party policy.

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