BARRY.NILSSON. Lawyers

Newberry v Suncorp Metway Insurance Ltd (2006) QCA 48

The Facts

Mr Newberry issued proceedings out of the Mackay Supreme Court Registry claiming damages for injuries he suffered in a motor vehicle accident on 8 October 2002. Mr Newberry worked for a delivery company. His brother was driving the delivery truck. Mr Newberry claimed that the collision occurred because the other vehicle was travelling on the wrong side of the road. Mr Newberry brought a claim against the driver of the other vehicle. Suncorp was the CTP insurer of the other vehicle. No claim was made against his employer.

The Issue

Mr Newberry at first instance had sought a declaration by the court as to whether the Civil Liability Act 2003 (Qld) ('CLA') applied to his claim. The CLA restricts a person's entitlement to damages. His interest lay in establishing that the CLA did not apply, in which case his claim for damages would not be limited by the provisions of the CLA.

The court was required to consider section 5(b), CLA and section 32, Worker's Compensation and Rehabilitation Act 2003 (Qld) ('WCRA').

Section 5(b) CLA
'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 WCRA, other than an injury to which sections 34(1)(c) or 35 of that Act applies'

Section 32 WCRA (defines injury)
'An injury is a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
''

The primary judge held that Mr Newberry's injury fell within section 32, WCRA and in reaching that conclusion held that Mr Newberry's employment was a significant contributing factor to the occurrence of his injury. The judge therefore held that the CLA did not apply to the claim. Suncorp appealed.

The Appeal

Suncorp's appeal was upheld. Justice Keane gave the leading judgment. He saw the primary judge's error to have been focusing upon the claimant's injury, rather than the claimant's claim, in deciding whether the CLA applied. His Honour said that section 5(b) CLA is concerned with the claim, not the injury.

His Honour said that it is necessary to consider whether the claim addresses the requirements of s32 WCRA ie. that the injury is one where employment is a significant contributing factor. To succeed in his claim Mr Newberry had to prove that the other vehicle was travelling on the wrong side of the road. There was no allegation in his claim that his employment was a significant contributing factor. The court unanimously held that the CLA was therefore not excluded by section 5(b) CLA.

Comment

1.    The result may have been different if, for example, there was an allegation made by Mr Newberry that the employer's delivery system required the driver to take his eyes off the road from time to time, and the accident happened when the driver's attention was diverted. Such a case would probably be caught by section 5(b) CLA, because in the context of the claim, the system of work may be seen to have been a significant contributing factor.

2.    If you focus on the injury, as the primary judge did, then employment would be a significant contributing factor to the injury because the only reason Mr Newberry was in the van was because of his employment. Mr Newberry's employment was not however a significant contributing factor to the claim.

3.    Justice Keane said that the CLA will be excluded where:-

• A personal injury claim is made against a non employer; and
• The claimant asserts that employment activities also significantly contributed to the cause of the injury.

What if no such assertion is made by the claimant' A claimant may stand to benefit from not raising employment issues so as to exclude the CLA. It is therefore in a respondent's interests to have its investigators look at the employment issue, even if no allegation is made by the claimant. If the claimant's employment is put in issue by the respondent that should be sufficient.

4.    Our experience is that a high percentage of workplace claims involve allegations against an employer. Generally in such a case the CLA will not apply. Such a position seems inherently unfair to the general insurer of the non employer, as WorkCover, in the same claim, will be entitled to the costs and damages concessions afforded to it by the workers compensation legislation.

For further information on this topic, please contact, Robert Samut.