RACQ Insurance Limited v Foster

This was an appeal against quantum in an action for damages for personal injuries sustained during a motor vehicle accident. The respondent, a bus driver injured whilst driving in the course of her employment, had been awarded damages of $539,765 plus costs. At first instance, damages were assessed under the Civil Liability Act 2003, not the common law, on the basis that her injury was insufficiently connected to the “exigencies of [her] employment”. The Court of Appeal upheld the primary judge’s finding.

Gotterson, Morrison and Philippides JJA

3 October 2018

Given the commentary in the reasons regarding which regime applied, particularly concerning the nexus between employment and the occurrence of accidents, the decision will be of interest to personal injuries practitioners. The key point was whether s 5(1)(b) of the CLA applied to exclude an assessment of damages under the CLA so that the assessment should have been at common law.

The respondent argued that, in circumstances where her injuries had arisen in the course of her employment as a “worker”, the only issue was whether her employment was “a significant contributing factor” to her injuries. She argued that it followed that it had been, since her job entailed her driving a bus along a route on public roads, thus exposing her to the negligence of other drivers. As such, she contended the injuries were ones for which compensation was payable under the Workers Compensation and Rehabilitation Act 2003, such that the CLA did not apply. In short, the injuries occurred because she was required to be driving on the road and thereby was exposed to that breach. [73].

The application of the CLA

Section 5(1)(b) of the CLA excludes the application of the CLA where “compensation is payable” for an “injury” under the WCRA. Section 5 provides that the Act does not apply in relation to deciding liability or awards of damages for personal injury if the harm resulting from the breach of duty is or includes an injury for which compensation is payable under the WCRA, other than an injury to which ss 34(1)(c) or 35 of that Act applies. Prior to its amendment in 2007 s 5 had formerly provided that the Act did not apply in relation to any civil claim for damages for personal injury if the harm resulting from the breach of duty owed to the claimant was, or included, an injury as defined under the WCRA, other than an injury to which ss 34(l)(c) or 35 of that Act applied.

The primary judge’s determination

Referring to the prior authorities of Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519; King v Parsons [2006] 2 Qd R 122 and Farnham v Pruden [2017] 1 Qd R 128, her Honour’s view was that in order to satisfy the requirement of s 32 of the WCRA, the exigencies of the employment must “contribute in some significant way to the occurrence of the injury caused by the breach of duty of the person (not the employer) against whom the claim is made”. [70]. A mere connection between the time and place of the accident and employment will not suffice to satisfy the test for injury under s 32. [72].  Further, any circumstances that might be properly regarded as “the exigencies of the employment of the worker by the employer” ought to be specifically pleaded. [72].

The Court of Appeal endorsed her Honour’s approach, confirming that Newberry and King remain the definitive authorities as to the meaning of s 32, as it was correctly determined to be in Farnham. [84]. The Court clarified that pursuant to s 5(1)(b), the focus is upon whether damages for personal injury arise from negligence causing harm being an injury for which compensation is payable under the WCRA. [83]. The Court also noted that s 35(2) of the WCRA specifically accommodates scenarios where a worker is travelling to and from work by specifying that employment need not be a “significant contributing factor” to give rise to a compensable injury. [86]. It stressed that merely occurring at work, or in the course of work, an injury does not meet the requirement that work must be a significant contributory cause. Further, adopting Justice Keane’s dicta in Newberry (at [45]), the Court gave particular emphasis to the point that its reasoning as to the application of s 5(1)(b) should not be taken to thwart the availability of compensation under the WCRA. [85]. They are two separate regimes.

In finding that her Honour had correctly determined that the assessment of damages fell to be determined pursuant to the CLA, the court dismissed both appeals, [92] noting that concepts of fault and causation “remain pertinent to the consideration of liability and assessment of damages for personal injuries in terms of whether or not the CLA applies by virtue of s 5(1)(b) of the CLA”. [88].

A de Jersey