CLA or common law damages for driving during the course employment?

Foster v Carter & Anor [2017] QSC 135

The plaintiff was injured driving a bus in the course of her employment when the first defendant’s vehicle collided with the rear of the bus. Liability was admitted.

Quantum was in dispute and whether it was to be assessed at common law or under the Civil Liability Act 2003 (CLA).

Her Honour found the CLA did apply. The plaintiff argued that employment was a factually significant factor because she was a bus driver and that was the reason she was driving the bus. The defendant argued that there was no evidence that “the exigencies or activities of the plaintiff’s employment made a significant contribution to the occurrence of the injury”.

Section 5(1)(b) of the CLA provides:

“(1) This 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-

(a) …

(b) an injury for which compensation is payable under the Workers’ Compensation and Rehabilitation Act 2003other than an injury to which section 34(1)(c) or 35 of that Act applies.”

[60] Section 5(2) then provides that for the purpose of subsection (b), it is immaterial where the compensation for the injury is actually claimed under the relevant Workers’ Compensation Act or whether the entitlement to seek damages for the injury is regulated under that Act.

[61] Section 5 of the CLA has been in that form with effect from 6 November 2006, as a result of the amendment made in s 8(3) of the Criminal Code and Civil Liability Amendment Act 2007. Prior to the amendment made by that Act, s 5 of the CLA relevantly provided:

“This Act does 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 is or includes –

(a) …

(b) an injury as defined under the Workers’ Compensation and Rehabilitation Act 2003, other than an injury to which section 34(1)(c) or 35 of that Act applies.”

Mullins J considered Newberry v Suncorp Metway Insurance Limited [2006] QCA 48[2006] 1 Qd R 519; King v Parsons [2006] QCA 49[2006] 2 Qd R 122 and Farnham v Pruden [2016] QCA 18[2017] 1 Qd R 128. Her Honour and concluded:

[69] The plaintiff was only driving the bus as it approached the roundabout where the accident occurred, because of her employment. Connection between the time and place of the accident and employment is not sufficient, however, to satisfy the test for an injury pursuant to s 32 of the WCRA. The plaintiff’s statement of claim is a classic pleading for a claim for personal injuries sustained in a motor vehicle accident. It is pleaded that the plaintiff was driving the subject bus at the time of the accident, but there is no pleading of any circumstances that can be characterised as “the exigencies of the employment of the worker by the employer”. The fact that the plaintiff was in receipt of workers’ compensation benefits after the accident does not determine the question of whether the injury to the plaintiff fell within s 32 of the WCRA. Consistent with the approach taken to the current version of s 5 of the CLA in Farnham, I conclude that the CLA applies to the plaintiff’s claim for damages.

Accordingly, damages were limited by the CLA.

David Cormack – Brisbane Barrister & Mediator

Appeal by the second defendant dismissed as well as the cross-appeal by the plaintiff:

RACQ Insurance Limited v Foster [2018] QCA 252

See the discussion on s.5 of the CLA at paragraph [62] – [90].




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