Barry Nilsson Special Counsel Stewart Boland discusses the recent Queensland Court of Appeal decision in RACQ Insurance Limited v Foster, which explored whether a claimant worker’s employment was a major contributing factor to their injury in the context of driving a motor vehicle.
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In Queensland, an injury to a worker is taken to arise out of or in the course of the worker’s employment if they are driving in the course of their employment or on a journey between their home and place of employment. This often leads to concurrent claims arising from motor vehicle accidents under both the relevant WorkCover and CTP legislation.
The Civil Liability Act 2003 (CLA) provides that it does not apply to deciding 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 Workers’ Compensation & Rehabilitation Act 2003 (WCRA) (except for journey or ordinary recess claims). For other claims where the claimant worker is driving in the course of their employment, the employment must be a ‘significant contributing factor’ to the injury for the WCRA to apply. In Farnham v Pruden & Anor [2016] QCA 18 the Court of Appeal held that this requirement means that 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.
This issue can be important because if the WCRA does apply, the claimant worker’s damages in their CTP claim will be assessed at common law. If that Act does not apply, the damages will be assessed according to the CLA.
Whether the claimant worker’s employment was a significant contributing factor to the injury in the context of a motor vehicle accident was again recently considered by the Queensland Court of Appeal in RACQ Insurance Limited v Foster [2018] QCA 252. In that matter, the claimant worker was a bus driver. She argued that the task of driving a bus along a route on public roads exposed her to the negligence of other drivers (including the at fault driver in the subject accident).
The claimant worker further contended that, although her injuries were caused by the breach of duty by the negligent driver, her injuries occurred because she was required to be driving a bus on the road and thereby exposed to that breach. She also argued that, as a bus driver, she was required to be on that bus route at that time as she had been directed to perform that activity at that time and place by her employer. The claimant worker’s argument was that as the requirements of her employment exposed her to a risk of injury, and that risk materialised, her employment was a significant contributing factor to the injury.
The Court of Appeal rejected the claimant worker’s arguments and found that the subject accident and liability could not be said to be one where the exigencies of employment contributed to the occurrence of the accident.
That outcome is to be contrasted with King v Parsons [2006] QCA 49. In that case, the claimant worker was a postman whose duties required him to ride a motorcycle on the footpath, and in danger of colliding with cars reserving out of driveways. The circumstances of that case identified the contribution of the claimant worker’s employment to the injury in respect of which he claimed damages. On that basis, the exigencies of the claimant worker’s employment contributed to the occurrence of the accident and the requirements of the WCRA were satisfied. Accordingly, the CLA did not apply and the damages were assessed at common law.
The mere fact of an injury to a claimant worker occurring while driving in the course of their employment, regardless of the nature of the breach of duty alleged, and against whom it is alleged, is not enough to ground a claim under the WCRA. That would attribute no proper meaning to the requirement that the employment be a significant contributing factor.
The Court of Appeal’s decision in Foster confirms that, for the WCRA to apply, 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.
Stewart Boland is a special counsel in in the Insurance & Health team, having joined the Brisbane office in 2012. Stewart specialises in personal injury and property liability matters, including high-value claims involving catastrophic and workplace injuries. During his time at Barry.Nilsson., Stewart has grown his practice and it now includes claims relating to: Public liability, Product liability, Workers’ compensation, CTP. Stewart also has experience advising on indemnity and coverage issues. He says: ‘I enjoy the fact that I have a very diverse practice. It means that no two claims are ever the same.’ Stewart acts for several of the major Australian-based insurers. He adds: ‘My client base is made up of sophisticated insurers, who all have a thorough understanding of the legal process. This means I am able to truly partner with them in developing a strategy for the management of their claims.’ Stewart has presented a number of papers to clients covering a range of general litigation and insurance-specific topics. Most recently he has spoken on disclosure; contributory negligence and quantum; and the application of the Motor Accident Insurance Act 1994 (Qld). Stewart has a Bachelor of Laws and is a member of the Queensland Law Society. Contact Stewart at stewart.boland@bnlaw.com.au or connect via LinkedIn.
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