[1]

Newberry v. Suncorp Metway Insurance Ltd [2005] QSC 210 (29 July 2005)

[2]

Newberry v Suncorp Metway Insurance Ltd [2005] QSC 210

[3]

1)

Declare that the applicant's employment was a significant contributing factor to any injury suffered on the Bruce Highway between Bowen and Proserpine on 8 October, 2004.

2)

Declare that the provisions of the Civil Liability Act 2003 do not apply to any claim made by the applicant for damages in relation to that injury.

[4]

STATUTES - STATUTORY CONSTRUCTION - INTERPRETATION - whether Civil Liability Act 2003 applies to civil claim for damages - where claim made for personal injuries arising out of or in the course of employment

[5]

WORKERS' COMPENSATION - CONSTRUCTION OF STATUTE - COURSE OF EMPLOYMENT - where employment is a contributing factor - whether employment constitutes a significant contributing factor

[6]

Favelle Mort Ltd v Murray [1976] HCA 13; (1975-1976) 133 CLR 580 at 584, cited.

[7]

Mercer v ANZ Banking Group Ltd [2000] NSWCA 138, 31 May 2000, applied.

[8]

Civil Liability Act 2003 (Qld), s. 5

[9]

Motor Accidents Insurance Act 1994 (Qld), ss. 5 and 37

[10]

Personal Injuries Proceedings Act 2002 (Qld), s. 6

[11]

Workers' Compensation Act 1987 (NSW), s. 9A

[12]

Workers' Compensation and Rehabilitation Act 2003 (Qld), ss. 32, 34, 35, 10 and 108

[13]

[1] Craig Owen Newberry worked as a casual truck driver for Dodds Agencies. That firm delivered small goods from Bowen to the Airlie Beach and Proserpine areas.

[14]

[2] On Friday, 8 October 2004 Mr Newberry was to make the delivery run as a driver/assistant. After an early breakfast, he assisted his brother to load the truck. He then left the depot with his brother, Jason, who also worked for Dodds. Jason Newberry was driving. As they were headed south on the Bruce Highway near Haygully truck stop, Mr Newberry saw the lights of another vehicle coming towards them on the wrong side of the road. A head on collision occurred in which both the driver and passenger of the other vehicle were killed. Mr Newberry was injured.

[15]

[3] The short issue for determination before me is whether the Civil Liability Act 2003 ("the CLA") applies to Mr Newberry's proposed civil claim for damages.

[16]

[4] Section 5(b) of the CLA provides:

[17]

"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 -

[18]

(b) an injury as defined under the Workers' Compensation and Rehabilitation Act 2003, other than an injury to which sections 34(1)(c) or 35 of that Act applies."

[19]

[5] For present purposes, the relevant provision of the Workers' Compensation and Rehabilitation Act 2003 (the "WCRA") is s. 32 which provides as follows -

[20]

"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 ..."

[21]

[6] Neither s. 34(1)(c) nor s. 35 of the WCRA applies to the facts of Mr Newberry's claim.

[22]

[7] Mr Newberry has given the respondent a notice of claim under s 37 of the Motor Accident Insurance Act 1994 (the "MAIA"). There is no dispute that the MAIA rather than the WCRA governs the proposed claim. Section 10(2) of the WCRA excludes from the definition of "damages" amounts for which insurance is provided under other legislation. In this case Mr Newberry's claim is covered by s 5(1) of the MAIA. Again, it is not disputed that the MAIA governs the resolution of Mr Newberry's claim. Despite this Mr Newberry's claim may be significantly larger if the injury is an "injury" as defined under the WCRA with the consequence that the CLA does not limit the availability or quantum of general and other damages.

[23]

[8] It was not disputed that the injury suffered by Mr Newberry was suffered in the course of his employment. The argument focussed on whether that employment was a significant contributing factor to the injury.

[24]

[9] Mr Newberry lodged a WorkCover application on 14 October, 2004. That application was accepted. It was submitted by counsel for the applicant that the acceptance of this claim was an acknowledgement by WorkCover that the employment was a significant contributing factor to the injury, since by s 108 of the WCRA, workers are entitled to compensation only in relation to an "injury" as defined.

[25]

[10] I agree that the acceptance of the claim by WorkCover does amount to an acknowledgment by that body of the significance of the employment to the injury. However, WorkCover is not a party to these proceedings and WorkCover's acceptance of the claim does not bind the respondent.

[26]

[11] Neither counsel has been able to refer me to any authority directly relevant to the present issue. That issue is when employment is a significant contributing factor to an injury.

[27]

[12] For the respondent it was submitted that in this case the employment was merely a co-incidence and did not itself contribute to the injury. Certainly, it was a significant contributing factor. It was submitted further that it could not have been intended that a claim such as this where the employer is not, in any sense, liable would fall outside the WCRA and at the same time avoid the operation of the CLA.

[28]

[13] An argument, not unlike the first limb of the argument advanced here on behalf of the respondent, was rejected by the High court in Favelle Mort Ltd v Murray[1]. In that case the injured worker had contracted a virus causing meningo-encephalitis_._ The precise time or place where the virus had been contracted was not known but it had occurred while the worker was on a visit to a foreign country to service his employer's cranes which were stationed there.

[29]

[14] The relevant statutory provision[2] defined "injury" as including "a disease which is contracted by the worker in the course of his employment whether at or away from his place of employment and to which the employment was a contributing factor".

[30]

"If the only basis upon which an award of compensation could be made in favour of the respondent is the satisfaction of the extension by par. (a) of the definition of "injury" in s. 6(1) of the Act, the matter for decision is whether his employment contributed to the contraction by the respondent of meningo-encephalitis. Clearly, it cannot be said that the nature of anything the respondent was required to do by his employment contributed to cause his morbid physical condition. But it is also quite clear that it is not necessary that this should be so in order that it may be concluded that the employment contributed to the contraction of that condition. There was quite clearly a moment, although not discernible or capable of precise or even approximate identification, when the virus attacked the respondent and entered his body. That, rather than the first manifestation of the meningo-encephalitis, must be regarded as the relevant contraction of the disease, if the case is to be treated as within the extension of the definition of "injury". Not only was he at that time in the course of his employment, but he was at the place where he was endangered by the virus because his employment required him to be there. It is quite immaterial that any member of the public, if at that same place at the same time or for that matter anywhere in the vicinity, might have been similarly attacked by the virus with comparable results. It is sufficient, in my opinion, that the virus attacked the respondent at that place and time. For him, it was for that reason a place of danger or, if you will, of special danger; a place at which he must be in fulfilment of his employment."

[31]

[16] Of course, the High Court in that case were considering only whether the employment was a contributing factor. It was not asked to consider whether it was a significant contributing factor.

[32]

[17] In Mercer v ANZ Banking Group Ltd[3] the New South Wales Court of Appeal considered a provision of the Workers' Compensation Act 1987 (NSW)[4] which limited compensation in respect of an injury to cases where "the employment concerned was a substantial contributing factor to the injury." In doing so, Mason P., with whom the other members of the Court agreed acknowledged that the introduction of the word "substantial" might make a difference.

[33]

"Here the word "substantial" qualifies "contributing factor". Obviously it is the extent of the causal link which is at issue. Judge Bishop recognised this. At 273 [29] of his judgment he held that the meaning to be adopted was that 'substantial' meant 'more than minimal, large or great'. In my view this was the correct approach, remembering that the word is used in a relative sense, recognising that other causative factors may be present. Section 9A does not require that the employment must be 'the' substantial contributing cause, nor does it attempt to exclude predisposition or susceptibility to a particular condition."

[34]

[19] In Mercer, the fact that the appellant suffered a knee injury lifting something at work was sufficient to make the employment a "substantial contributing factor" notwithstanding the fact that the appellant's condition was such that the injury may have occurred if she had attempted to lift a similar weight in circumstances divorced from the employment.

[35]

[20] Although s. 9A of the New South Wales legislation enumerates matters to be considered in deciding whether employment is a substantial contributing factor, those matters are matters that would be likely to be considered in any event. The presence of the list does not reduce the relevance of the decision to the present debate. For my part, I can see no material difference between the use of the adjective "substantial" and the adjective "significant".

[36]

[21] In this case and applying the reasoning of Barwick CJ in Mercer, Mr Newberry was at the place where he suffered the injury because of his employment. There is no reason to believe that were he not employed on that morning Mr Newberry would have been on the Bruce Highway or that he would have been involved in a car accident. Mr Newberry's presence on the Bruce Highway at the critical time and place was no mere co-incidence. He was there because his employment required him to assist with the delivery of goods from Bowen to Proserpine and that required him to use the highway. By putting him in what was, for him, a place of danger, the employment contributed to the injury. In this case, because Mr Newberry would not have been exposed to the danger but for the employment, the employment was a "significant" contributing factor.

[37]

[22] To accept the respondent's submissions in this case would mean that workers would be denied compensation payments in almost all cases where the injury was incurred in travelling to or from work or while travelling in the course of employment. But for the requirement that the worker attend to his employment at a particular place to and from which the worker must travel, there would rarely be any connection between the employment and an injury suffered on route. Despite this, it seems clear from s. 34 and s. 35 of the WCRA that it was contemplated that compensation would be generally available in such cases, even where there is no possible damages claim against the employer. Where the worker is employed as a delivery van driver, or in this case, assistant driver, and the injury occurs in the context of a delivery, the connection between the employment and the injury seems much greater.

[38]

[23] The second limb of the respondent's arguments requires me to conclude that the legislature could not have contemplated a circumstance in which a claim could arise outside the WCRA but to which the CLA did not apply. I am not sure that the evidence supports such a conclusion.

[39]

[24] A clear distinction exists between s. 5(b) of the CLA and s. 6 of the Personal Injuries Proceedings Act 2002 ("PIPA") which provides:

[40]

"(1) This Act applies in relation to all personal injury arising out of

an incident whether happening before, or after 18 June 2002.

[41]

(b) injury as defined under the Workers' Compensation and Rehabilitation Act 2003, but only to the extent that an entitlement to seek damages, as defined under that Act for the injury is regulated by chapter 5 of that Act." (underlining added)

[42]

[25] It is clear from the inclusion of this provision in PIPA that the legislature was aware that cases might arise where a worker suffered an injury under s. 32 of the WCRA but that a subsequent claim for damages might be outside the ambit of that legislation. Interestingly, s. 6(2)(b) of PIPA was inserted by an amended made by s. 80 of the CLA itself. Thus, not only has the legislature plainly demonstrated that, had it wished, it could have limited the exclusion of the CLA in the way now contended for by the respondent, it demonstrated that capacity in the same legislation I am now considering.

[43]

[26] In the second reading speech in support of the Civil Liability Bill 2003, the Attorney General said:

[44]

"The Bill will apply to all cases of negligent conduct, whether it results in personal injury, property damage or economic loss, except for personal injuries that are within the WorkCover Queensland scheme ...

It is important to stress that the government has specifically excluded all work injuries from the application of this bill. This exclusion will apply regardless of whether the defendant to the action is an employer, occupier or other third party. The government will monitor the operation of this Bill after its introduction and the operation of work related claims for the next 12 months before considering this matter further."

[45]

[27] In the circumstances I could not conclude that the exclusion of an "injury" under the WCRA from the operation of the CLA was unintentional. Rather, the decision to exclude "work injuries" appears to have been deliberate and the government seems to have been prepared to wait and see whether anomalous cases such as tis one were of sufficient moment to warrant legislative review.

[46]

[28] Even were I to be persuaded to another view this does not seem to me to be a case where I could justify a departure from the plain meaning of s. 5(b) of the CLA which excludes from its operation every case where the injury meets the definition in the WCRA other than two specified and presently irrelevant exceptions.

[47]

[29] Ordinarily, I would consider it inappropriate to make findings, such as those I have been asked to make, in advance of a trial on the merits. In this case, however, both sides sought a declaration as to the application of the CLA. In the absence of guidance as to the applicable statutory regime it is unlikely the claim can be progressed through the settlement processes required by the legislation. Hence, in this case, the making of a declaration serves a utilitarian purpose.

[48]

[30] Accordingly, I declare that the applicant's employment was a significant contributing factor to any injury suffered on the Bruce Highway between Bowen and Proserpine on 8 October, 2004. I further declare that the provisions of the Civil Liability Act 2003 do not apply to any claim made by the applicant for damages in relation to that injury.

[49]

[1] [1976] HCA 13; (1975-1976) 133 CLR 580.

[50]

[2] Section 6 of the Workers' Compensation Act 1926 (NSW).

[51]

[3] [2000] NSWCA 138, 31 May 2000.

[52]

[4] Workers' Compensation Act 1987 (NSW) s. 9A(1)

_Newberry v Suncorp Metway Insurance Ltd_

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (52 paragraphs)

Newberry v. Suncorp Metway Insurance Ltd [2005] QSC 210 (29 July 2005)

Parties

Legislation Cited (7)