Australia: When Will The Civil Liability Act Apply To Claims Involving A Worker?

Two recent decisions of the Queensland Court of Appeal clarify how recent tort reforms will affect those injured in a car accident in the course of their employment. CTP reforms, including the damages scale prescribed by the Civil Liability Act 2003 (Qld), will apply except where the claimant’s employment has more than a coincidental involvement with the circumstances of the claim.

Newberry v Suncorp [2006] QCA 48 and King v Parsons & Suncorp [2006] QCA 49 were heard together by the Court of Appeal as they were single judge decisions with conflicting interpretations of the relevant legislation. Justice Keane, delivering the leading judgment in each case, concluded that both trial judges were wrong and adopted a middle ground position.

The Civil Liability Act 2003 (Qld) (CLA) imposes various widespread reforms on claims for personal injury including refinements of the duty of care and a prescribed scale of values for general damages. It does not however seek to infringe upon WorkCover claims and pursuant to section 5(b) will not apply to claims for personal injury resulting from a breach of duty owed to the claimant if the resultant harm includes an injury as defined under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA). Section 32 of the WCRA defines injury as ‘personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury’. The application of the CLA is easy to resolve where there is an alleged breach of duty by the employer. In such a case there is no doubt that the circumstances of employment are significant. The situation is less clear when the employer is not to blame yet injury has occurred while at work.

The facts of Newberry demonstrate the problem. Mr Newberry was the passenger in a truck delivering smallgoods when a vehicle travelling in the opposite direction strayed onto the incorrect side of the road causing a collision. It is true Mr Newberry was on the road because of his work, but the requirements of his job had little to do with causing the accident. Justice Keane placed less emphasis on the word ‘injury’ and more emphasis on the word ‘claim’ in the relevant section of the CLA.

It is clear the legislation deals with claims of legal liability and the reference to employment being a significant contributing factor to the injury must be construed in this context. To avoid the CLA the claimant’s employment activities must contribute to the occurrence of the injury in a significant way. There must be some potency in the relationship between the breach of duty and the employment activities. The claim must be one where the employment and its significant contribution to the occurrence of the injury are a material ingredient of the claim made against that person. Mr Newberry’s employment was not significant in this sense.

By contrast, the facts in King did show a significant connection between employment and the injury. King was an Australia Post mailman delivering post by riding his motorcycle on the footpath when Mrs Parsons reversed towards him out of her driveway causing him to take injurious evasive action. His employment was relevant to the claim because it was a significant contributing factor to the injury. It explained why he was on the footpath and it was because of this work requirement that Mrs Parsons’ breach of duty came to cause him injury. Mrs Parsons was obliged to guard against the risks which arose from the activities of the injured worker’s employment.

As it turns out King escaped the WCRA definition of injury for another reason altogether, namely Australia Post is a federal employer governed by the applicable Commonwealth workers’ compensation legislation. However, the case remains a good illustration of circumstances in which a claim might fall between the CLA and the WCRA.

Although regard must be had to what is claimed against the various parties when determining what legislation will apply, opportunistic claimants cannot simply allege that their accident occurred in the course of their employment to avoid the CLA. As Justice Keane points out, such an allegation in Newberry would have been struck out as immaterial and embarrassing to the claim. Therefore the critical test would appear to be whether a court will strike out as immaterial, any pleading that the accident occurred in the course of the claimant’s employment.

The result of these decisions is that accidents where employment is nothing more than a coincidental circumstance will be governed by the CLA. Where the circumstances or exigencies of employment can be said to have some significant bearing on the claim then the CLA will not apply. This leaves liability and damages governed by the law as it was prior to the CLA except where the WCRA applies as between the worker and employer.

The effect of these decisions is far reaching, and can apply equally to occupiers liability claims as it does to CTP claims, should the claimant happen to be working when injured. To take a notorious example, a milk delivery person tripping on a hose left out on a customer’s lawn (see Jaenke v Hinton [1995] QCA 484) would likely escape the CLA. Real estate agents, gas inspectors, gardeners, domestic plumbers, travelling salespersons, furniture removalists… the list is endless. These workers venture far and wide in the course of their working day potentially negating the effect of the CLA if it can be shown their employment had more than an incidental role to play in causing an injury.

Insurers and self-insureds beware! You can expect an increase in allegations from claimants that their employment had a significant bearing on the cause of injury, and therefore the compensation restrictions of the CLA do not apply. Careful consideration of whether this allegation is justified will be required in each case. Some allegations will be borderline and the potential grey area between Newberry and King is broad. No doubt we will see more judgments further refining this issue in the future.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.