Schultz, Jeremy --- "Future economic loss claims: clipping the wings of restitutio in integrum" [2017] PrecedentAULA 34; (2017) 140 Precedent 34

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JOURNEY CLAIMS

THE CLA, WORKERS AND MOTOR VEHICLE ACCIDENTS

By Jeremy Wiltshire

In Queensland, the exclusion of the Civil Liability Act 2003 (Qld) (CLA) from motor vehicle ‘journey claims’, and the interplay between the CLA and the workers’ compensation legislation, had seemed relatively uncontroversial for about a decade since the decisions in Newberry v Suncorp Metway Insurance Limited Ltd [2006] QCA 48 (Newberry), and King v Parsons & Anor [2006] QCA 49 (King), and the 2007 legislative amendments which flowed from those cases. However, a series of recent decisions has highlighted some ongoing issues and raised doubts about the efficacy of the legislative amendments.

The apparent intention is that the CLA will not apply where the injured person is engaged in their employment at the time of injury. That objective is activated by linking the exclusion in the CLA to the entitlement to statutory compensation under the Workers’ Compensation and Rehabilitation Act 2003 (WCRA).

Entitlement to compensation under the WCRA requires an ‘injury’ within the meaning in s32: the injury must arise out of or in the course of employment and the employment must be a significant contributing factor to the injury. However, in conferring benefits on workers, the WCRA extends the entitlement to compensation to two situations where employment need not be a significant contributing factor: workers injured on a journey between their home and their place of employment^[1] (‘journey claims’) (s35), and workers temporarily absent from their place of employment during an ordinary recess (s34(1)(c)).

The CLA then, in excluding its own application to claims by workers, carves out those two instances where employment need not contribute to the injury, and provides that the CLA will still apply to journey claims and recess claims.

Journey claims are most commonly motor vehicle accidents (MVAs), and an appropriate examination of the interpretation of the legislation, and of the facts, may be necessary in order to determine whether or not the CLA applies.

NEWBERRY AND KING DECISIONS AND THE LEGISLATIVE RESPONSE

Newberry and King were heard by the Queensland Court of Appeal together in 2006.

In Newberry, the plaintiff was injured in an MVA as a passenger in a delivery van being driven by his brother in the course of their employment delivering smallgoods. It was not a ‘journey claim’, but the contentious issue was whether the CLA applied.

The wording of s5 of the CLA at that time was:

‘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-

...

(b) an injury as defined under the Workers’ Compensation and Rehabilitation Act 2003, other than an injury to which s34(1)(c) or 35 of that Act applies.’

[Emphasis added to highlight differences with current wording]

Keane JA noted that the emphasis in the wording at that time was on the ‘claim’ made (as opposed to the facts ultimately established at trial) and on the breach of duty alleged. Where the breach is alleged to have been committed by a person who is not the employer, the claim will be excluded from the CLA if the injury occurred in circumstances where the claimant’s employment activities nevertheless contributed to the occurrence of the injury in a way that was significant.

On the facts in Newberry, the allegations were against the driver of the other vehicle, not the employer. While the injuries occurred in the course of the plaintiff’s employment, the activities of his employment were not a significant contributing factor to his injury. The fact that he was working was immaterial to the occurrence of the accident. The injuries were caused by the other driver who was driving on the wrong side of the road. The Court of Appeal held that the claim was not for an injury within the definition in the WCRA and the CLA was not excluded.

In King, the plaintiff was a postal delivery worker riding a motorcycle on the footpath while making deliveries, when he was injured in the attempt to avoid a collision with a vehicle reversing from a driveway. The Queensland Court of Appeal held that while the primary claim was against a non-employer, it was an example of a case where the employment was a significant contributing factor. Keane JA said at [10]:

‘In this regard, as his Honour observed, Mr King's employment was more than a fact apt to explain why Mr King was where he was when the first respondent's breach of duty caused his injury. The exigencies of Mr King's employment tend to explain how the first respondent's breach of duty came to cause Mr King's injury, in that the appellant's employment obliged him to ride his motorcycle on the footpath. There, he was, because of his performance of his duties as an employee of APC, particularly vulnerable to a driver in the position of the first respondent while she was reversing down a driveway. This case affords an example of a claim in which the nature of the duty owed by the party against whom the claim is made is such as to oblige that party to guard against the very risks which arose from the activities of the injured worker's employment. The claim thus identifies the contribution of the injured worker's employment to the injury in respect of which he claims damages.’^[2]

Keane JA noted in Newberry that his interpretation avoided, or limited, the prospect of the ‘distinctly odd result’ that just because the plaintiff was employed when he was injured and had a claim against a third party he would recover greater damages than he would have recovered from his employer (and its insurer) if his employer had also been liable or if he had not been working at the time. He could not discern in the legislation an intention to create a ‘privileged class of employees’ whose claims for damages are to be unrestricted in that manner.

However, it appears that that was precisely the intention of the Queensland legislature, and it acted to address the Newberry and King decisions.

In introducing the amendments to s5 of the CLA in 2007 which produced the current wording, the Minister said:

‘The Bill also amends the [CLA] to exclude the application of the Act to all work injuries, apart from recess and journey claims, regardless of whether the injury is caused by an employer, a host employer or a third party. The Government always intended to exclude work-related injuries from the application of the Act so that claims for work-related injuries would be governed by the common law. It was made clear in the second reading speech, that the exclusion was to apply to all work-related injuries, regardless of whether the defendant to an action was an employer or a third party. However, on 3 March 2006 the Court of Appeal, in Newberry v Suncorp-Metway Insurance Limited, interpreted the Act in a way that restricted the intended scope of this exclusion. The decision has the potential to create a disparity in the way common law damages for work-related injuries are calculated. It potentially reduces the entitlements for workers injured by the actions of a third party where the employer is not at fault, such as the driver of a motor vehicle involved in a collision with a claimant, which was the case in Newberry. The Bill aims to restore workers’ rights by redressing the effect of the Newberry decision and reinstating the government’s intention regarding the exclusion from the [CLA].’

Whether those 2007 amendments in fact gave effect to that intention has been brought into doubt by recent Queensland Court of Appeal decisions.

RECENT CASES

The recent decisions were specifically in relation to journey claims but potentially have implications that extend beyond those claims.

Ballandis v Swebbs [2015] QCA 76^[3]

The plaintiff was injured while a passenger in a ute which rolled during a journey home from a work site. The accident was due to the negligence of the driver, Mr Swebbs. The plaintiff’s flatmate, Mr Wright, was also a passenger. The three men were all employed by Mr Thorpe, who supplied the ute and directed them daily as to the varying locations where they were to work.

The trial judge found that the CLA applied because it was a journey claim.

On appeal, the plaintiff contended that s35(1) of the WCRA was not applicable because:

• there was no static workplace and so no particular location the plaintiff could be on a journey home from;

• the employer owned the ute, it was used to ferry the workers and their tools to the varying job sites, it was where the workers met to travel to locations directed by the employer, it was used at the employer’s direction to collect and deliver work materials, and was driven to fulfil the employer’s business activities;

• because the employer gave instructions daily as to where the workers were to go, the plaintiff was under the employer’s control from the time he left his unit; and

• employment was central to the occurrence of the injuries, as but for the plaintiff’s employment he would not have been involved in the accident.

Effectively, the plaintiff argued that while on that journey he was still at work so could not be on a journey home from his place of work.

The Court of Appeal rejected those arguments.

The evidence showed that the plaintiff had in fact finished work for the day:

• the claim form noted that they were travelling home, and the plaintiff and Wright agreed in cross-examination that they were heading home;

• Swebbs was driving because neither the plaintiff nor Wright had a driver’s licence, and Swebbs drove his own car to the plaintiff’s unit in order to drive the ute to the work site and back;

• mostly they drove the ute to Thorpe’s house and then travelled in his ute to the work sites;

• they clocked on when they arrived at the work site and clocked off when they left; and

• the employer provided the ute to Wright so he could get to work, and it was intended that Wright would pay it off over time, and Wright was responsible for paying for petrol and could use the vehicle as he liked outside of work hours.

Additionally, the Court of Appeal noted the following points of interpretation of s35 of the WCRA:

1. Section 35 is a deeming provision: it provides that an injury on a journey between the place of employment and the worker’s home is taken to arise out of or in the course of the worker’s employment. So it operates even where the injury does not actually arise out of employment and even outside work hours. Consequently, it applies irrespective of the degree of control exercised by the employer over the means or manner by which the worker gets home.

2. The vehicle used in the journey did not meet the definition of ‘place of employment’ in Schedule 6 of the WCRA. Morrison JA (with whom Fraser JA and Gotterson JA agreed) said at [21]:

‘A vehicle used to drive home after work, even if it is provided by the employer, would not be “premises” or “works”, nor would it readily fit within “place”, which seems to refer to a location. It might be “plant” but that contention confronts the requirement for “control or management” by the employer, which was absent here. Similarly it confronts the additional requirement, “in ... or in connection with which the worker was working when the worker sustained the injury”. Mr Ballandis was not working when he sustained the injury.’

3. The provision of the vehicle by the employer did not, of itself, make employment a significant contributing factor. Beyond providing the vehicle, the employer had nothing to do with where the workers went after work.

4. The conclusion that the workers were still at their place of employment during the journey would mean that s35 WCRA would apply only to a ‘journey’ between the parked car and the unit.

5. That conclusion would attribute a degree of control over the employees by the employer which he did not exercise.

6. The case was distinguishable from each of Newberry and King.

The conclusion in Ballandis is largely consistent with the apparent intention of the legislation. On the facts, the Court of Appeal concluded that in fact Mr Ballandis had finished work and was simply on a journey home and so the CLA applied.

The case of Farnham v Pruden took that interpretation of s35(1) a step further.

Farnham v Pruden [2016] QCA 18; (2016) 74 MVR 262^[4]

The plaintiff was a support worker employed by a government commission. She was injured while driving from her home to visit a foster home as part of her work. She argued that s35 of the WCRA did not apply because she did some of her work from home and so she was not on a journey between her home and her place of employment, but between one place of employment and another.

The plaintiff owned her home, and used her own computer at home to log on to the employer’s computer system and obtain the resources required for site visits. She would then perform the site visits, return home and log on to the computer system again to record the visits and perform other administrative tasks. She was employed as a casual and was paid for her time working at home and for her travel time, and she was paid a mileage rate for using her own car. On the morning of the accident, she had been working at home before commencing the journey to the foster home.

The trial judge and the Court of Appeal rejected the argument that s35 of the WCRA did not apply. The Court acknowledged that its interpretation may not reflect the intention of the legislature but observed that the legislative intention can only be relevant to statutory interpretation where there is ambiguity. Here, in the Court’s view, the meaning was clear, having regard to the defined terms, which must be read into the substantive enactment.^[5]

Importing the relevant definitions into s35(1)(a) expands it from:

‘... on a journey between the worker’s home and place of employment;’

to:

‘... on a journey between the worker’s usual place of residence and the premises ... or place for the time being occupied by, or under the control or management of, the employer by whom the worker concerned is employed.’

The Court observed that the plaintiff’s usual place of residence did not lose its character as her home merely because she did some work there. It was still her usual place of residence therefore it was still her ‘home’ within the definition.

Similarly, the fact she did some work at home did not turn it into a ‘place of employment’ under the Act. The plaintiff’s home was not at any time occupied by or under the control or management of the employer. Not even the space where her computer was. The fact that she was paid for time spent working at home might mean that during that time she was under the control or management of the employer, but it did not mean that her home was.

Payment for her travel time between her home and work had no bearing on the nature of that journey. Section 35 does not specify that it applies only to journeys outside of work hours; on its face it applies to any journey between the worker’s home and the worker’s place of employment. That conclusion was also reached in Ballandis.^[6]

While the conclusion that it was a ‘journey claim’ meant the CLA did not apply to the claim, the Court of Appeal nonetheless considered the arguments as to whether, if it was not a journey claim, the CLA would still apply because the claim was not for an ‘injury’ within the definition in s32 of the WCRA.

The wording to s5 of the CLA effected by the 2007 amendments, designed to deal with the Newberry decision, changed as follows:

(a) changed the focus from looking at the ‘claim’ made to looking at the harm suffered; and

(b) removed the reference to the definition of injury in the WCRA and replacing it with a reference to an injury for which compensation is payable.

Nevertheless, eligibility for compensation under the WCRA still requires meeting the definition in s32. That is, injury arising out of or in the course of employment where employment is a significant contributing factor.

The Court of Appeal in Farnham rejected an argument that Newberry and King were wrongly decided and, in effect, held that they are still relevant. It remains the case that the employment itself must contribute to the injury or the CLA will not be excluded.

On the facts in Farnham, even if had not been a ‘journey claim’ the CLA would not have been excluded because employment did not contribute to the MVA, and so there was not an ‘injury’ for which the plaintiff was entitled to compensation.

Margaret McMurdo P, in agreeing with the reasons of Morrison JA (with whom Gotterson JA also agreed), added the comment at [4] that:

‘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, 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 [CLA]. This is the unequivocal effect of the legislative scheme established by the [CLA] s5(1)(b) and the [WCRA] s32, s34, s35(1) and the definition of “place of employment” in Schedule 6. This result, however, may not have been the intent of the legislature discernible when amending the [CLA] in 2007, apparently in response to this Court’s decision in Newberry v Suncorp Metway Insurance Ltd. See the observations of the then [Minister] in the Second Reading Speech of the Criminal Code and Civil Liability Amendment Bill 2007 (Qld) and the Explanatory Notes to that Bill.’

It remains to be seen whether the legislature will again seek to remedy the court’s interpretations and attempt to reinstate a system where any worker injured in the course of their employment with a claim against a third party is entitled to have their action determined at common law, even if employment was not a contributing factor, unless it is a journey claim or a recess claim.

While that would be good for some injured workers, and might bring some clarity, it is now hard to see the justification for that state of affairs since the 2010 amendments to the WCRA which effectively mirror the CLA limitations (with some exceptions). That would, and has, to date, created a real ‘privileged class of employees’ injured in MVAs while at work who, by having an entitlement to unfettered common law damages, are better off than normal motorists with a claim under the CLA, and better off than if their claim had been against their employer.

The broader concern, as things currently stand, is as to whether these decisions, and Farnham in particular, mean that WorkCover is required to apply closer scrutiny to whether claims for statutory compensation by workers injured in MVAs meet the definition in s32 of the WCRA. At present, a worker injured in an MVA during work time is routinely granted statutory benefits. If it is necessary to consider whether employment was a significant contributing factor to the injury, then many workers may be left without a statutory claim. That would create a completely inequitable situation where a worker injured in an MVA before or after work may be better off than if the injury had happened after they had started work, because employment need not be a significant contributing factor to a journey claim under s35.

Kerle v BM Alliance Coal Operations & Ors [2016] QSC 304

A further issue in assessing journey claims arose in the recent decision of Kerle v BM Alliance.

The plaintiff was injured after apparently falling asleep on the 430km drive home after four consecutive night shifts at a mine. He successfully sued his employer, the host employer and the operator of the mine for breaches of their respective duties which contributed to his driving in a fatigued state.

The Court also accepted the plaintiff’s argument that the CLA did not apply to his claims against the host employer and the mine operator – the non-employer parties – notwithstanding the fact that the injury occurred on a journey between the plaintiff’s place of employment and his home.

Section 35 of the WCRA refers to an ‘event’ which happens while the worker is on a relevant journey. Section 31 defines ‘event’ as ‘anything that results in injury ... to the worker’.

The allegations against the host employer and the mine operator related to acts and omissions in respect of the plaintiff’s workplace which resulted in him driving in a fatigued state. Relevantly then, the ‘event’ which caused the injury did not happen on the journey; it happened in the workplace. Accordingly, s35 was not engaged. Section 32 of the WCRA was engaged, as his employment was a significant contributing factor to the injury.

It is relevant, then, to consider where and how the relevant event which caused the injury occurred, rather than just the geographical location where the injury was sustained.

CONCLUSIONS

Whether or not the CLA applies to claims by workers injured in MVAs may require careful consideration of the legislation, and of the facts. It is not clear from the decision in Farnham what emphasis was given in argument to how the change of wording to s5 of the CLA in the 2007 amendments affects the application of the Newberry decision. However, on the face of the Farnham decision the principles outlined in Newberry must still be considered in determining the application of the CLA. Hopefully, it will not have an adverse impact on the eligibility of workers injured in MVAs to statutory compensation.

Jeremy Wiltshire is a member of the Queensland Bar who specialises in insurance and personal injury law including motor vehicle accidents and workers’ compensation claims. He is a regular presenter at ALA events in Queensland. PHONE [phone] EMAIL [e-mail].

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^[1] As well as a number of other journeys listed in s35.

^[2] Ultimately, in fact, Mr King’s claim was not excluded from the CLA because the Australian Postal Corporation was a statutory corporation not covered by the WCRA.

^[3] (Ballandis).

^[4] (Farnham).

^[5] Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 at [84], [103].

^[6] At [19].