Farnham v Pruden & Anor [2016] QCA 18

Further to my earlier post the Court of Appeal has followed its decision in Ballandis v Swebbs & Anor [2015] QCA 76. It is now abundantly clear that by reason of s 5(1)(b) of the
Civil Liability Act
 2003 (CLA), in circumstances where a “journey claim” arises under s 35(1) or where employment is not a “significant contributing factor” under the  Workers’ Compensation and Rehabilitation Act 2003 (WCRA), the CLA will apply to the assessment of damages.

President McMurdo put it this way:

[4] One benefit of modern technology is that employees commonly work remotely from their places of employment, often from their homes. This decision and another recent decision, Ballandis v Swebbs & Anor[1], means that workers who have commenced their employment by working at home and who are then injured in a motor vehicle accident whilst driving to another part of their workplace cannot claim common law damages. They are instead subject to the more limited scheme of damages applicable under the Civil Liability Act 2003 (Qld). This is the unequivocal effect of the legislative scheme established by the Civil Liability Act 2003 (Qld) s 5(1)(b) and the Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 32s 34s 35(1) and the definition of “place of employment” in Schedule 6…

The facts of the case were uncontentious. The plaintiff/ appellant worked as community visitor for the Commissioner of Children, Young People and Child Guardian. She would visit a child at their home in her vehicle. On the date of the plaintiff’s accident, she had left her home in her vehicle, but before arriving at the home of the child, the first defendant collided with the rear of her vehicle.

The plaintiff alleged that her home was her place of employment, because she worked from home between child visits. The trial judge rejected this, as well as Morrison JA, (with whom President McMurdo and Gotterson JA agreed) by reference to the plaintiff’s taxation records and the statutory principle of incorporating the definition into the interpretative section under consideration (McHugh J in Kelly v The Queen[25] ).

His Honour Morrison JA dealt at length with the correctness of the decisions of Newberry v Suncorp Metway Insurance Limited [2006] 1 Qd R 519[2006] QCA 48 and King v Parsons [2006] 2 Qd R 122[2006] QCA 49. His Honour followed Newberry v Suncorp Metway Insurance Limited.

Whilst not required to consider the remaining appeal issues, his Honour did and upheld the trial decision in every respect. In so doing his Honour found the evidence of Dr Oelricks did not offend against the requirements in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705;[2001] NSWCA 305 because:

[87] In my view, it was open to the learned trial judge to accept the evidence of Dr Oelrichs, and in particular the opinions given in the second report and the note signed by her. This was evidence from an expert, based on a more complete set of medical records and a recent assessment. The expert gave an explanation why her opinion had altered, identifying the new information she had. There was nothing inherently improbable about the opinions expressed, which were tested in cross-examination. Contrary to the submission made, the evidence of Dr Oelrichs did not offend against the requirements set out in Makita (Australia) Pty Ltd v Sprowles.[95] No part of those requirements confines an expert’s opportunity to state the facts or assumption upon which the opinion is based to the written report itself, and just as a written report can be tested in cross-examination so can it be amplified or supplemented. Any deficit in the second report itself was adequately explained in oral evidence.

As to lost earning capacity, his Honour found the trial judge’s assessment correct:

[99] The ultimate finding, again unimpeachable given the matters referred to above, was in these terms:[102]

“Because of the findings that I have made concerning the non-accident stressors in [Ms Farnham’s] life, no discount should apply on Malec v JC Hutton principles (for the reasons that there has been insufficient evidence to cross the threshold discussed in Medlin: see Allianz Australia Insurance Ltd McCarthy at [49]). As analysed, the liability has not been proved to be a contributing cause, either direct or indirect, to that intervening decision to resign – and therefore, the consequences of attempts of return to work afterwards – or any ongoing inability to obtain work after January 2013.”

The threshold in Purkess v Crittenden (1965) 114 CLR 164[1965] HCA 34 had been overcome by the defendants.

Leave for appeal was refused with costs.

David Cormack – Brisbane Barrister & Mediator


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