King v Parsons
[2005] QSC 214
•5 August 2005
SUPREME COURT OF QUEENSLAND
CITATION: King v Parsons & Anor [2005] QSC 214 PARTIES: DESMOND CHARLES KING
(applicant)
v
ELSA ALVINA PARSONS
(first respondent)
SUNCORP METWAY INSURANCE LIMITED
ABN 83 075 695 966
(second respondent)FILE NO/S: BS 5038 of 2005 DIVISION: Trial Division PROCEEDING: Application ORIGINATING Brisbane COURT: DELIVERED ON: 5 August 2005 DELIVERED AT: Brisbane HEARING DATE: 27 July 2005 JUDGE: McMurdo J ORDERS: 1. It will be declared that the Civil Liability Act 2003 (Qld) does apply to the applicant’s claim against the first and second respondents for damages for personal injury arising from a motor vehicle accident on 30 July 2003 2. The applicant pay the respondents’ costs of this originating application to be assessed upon a standard basis CATCHWORDS: STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – RULES OF CONSTRUCTION – PARTICULAR WORDS AND PHRASES – SPECIFIC INTERPRETATIONS – where applicant was an Australian postal worker who was injured whilst swerving to avoid the first respondent reversing out of her driveway – where the second respondent was the insurer and had admitted liability – where the Civil Liability Act 2003 does not apply to “an injury as defined under the Workers’ Compensation and Rehabilitation Act 2003” – where the Workers’ Compensation and Rehabilitation Act does not apply to workers employed by the Commonwealth or a Commonwealth agency – whether the applicant’s injury was an injury as defined under the Workers’ Compensation and Rehabilitation Act 2003 WORKERS’ COMPENSATION – EMPLOYMENT RISKS – “ARISING OUT OF AND/OR IN THE COURSE OF THE EMPLOYMENT” – GENERALLY – where the definition of “injury” in s 32 of the Workers’ Compensation and Rehabilitation Act 2003 requires employment to be a “significant contributing factor to the injury” – whether applicant’s employment was a “significant contributing factor” Safety Rehabilitation and Compensation Act 1988 (Cth)
Civil Liability Act 2003 (Qld), s 5, s 52, s 53, s 54, s 57, s 58,
s 59, s 60
Motor Accident Insurance Act 1994 (Qld), s 4, s 5, s 54, s 55,
s 55A, s 55B, s 55C, s 55D, s 55E
Personal Injuries Proceedings Act 2002 (Qld), s 6, s 26, s 49,
s 50, s 51, s 52, s 53, s 54, s 55
Workers’ Compensation and Rehabilitation Act 2003 (Qld),
s 10, s 11, s 30, s 32, s 34, s 35, s 36
WorkCover Queensland Act 1996 (Qld), s 11, s 34followed
Devlin v South Molle Island Resort [2003] 2 Qd R 346, not followed COUNSEL: D C Rangiah for the applicant
P V Ambrose SC for the first and second respondentSOLICITORS: Maurice Blackburn Cashman for the applicant
Herbert Geer & Rundle for the first and second respondent
McMURDO J: On 20 July 2003, the applicant, Mr King, was a postman making deliveries in Wootton Crescent, Springwood. As he rode his motorcycle along the footpath past Ms Parsons’ house, she reversed her car from her driveway into his path. He had to swerve to miss her and collided with a tree.
The applicant injured his back in that accident. He wants to claim damages at common law. The second respondent, Suncorp, is the motor vehicle insurer of Ms Parsons. It admits liability.
The parties are in dispute as to whether the assessment of the applicant’s damages is governed by the Civil Liability Act 2003 (Qld) (which I shall call the “CLA”). The applicant is likely to obtain a higher assessment if the Act does not apply to his case. He says that it does not, at least because he was employed by a Commonwealth authority. He applies for a declaration that the Act does not apply to his claim. There are two questions then raised by the arguments. The first is one of law, involving the interpretation of s 5 of that Act together with the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (which I shall call the “WCRA”). The second is a factual question, which is whether in the context of s 32 of the WCRA, his employment was a significant contributing factor to the injury. The parties agree that it is appropriate that the factual as well as the legal question be answered within this summary application.
Civil Liability Act: section 5
Section 5 of the CLA excludes certain types of claims from the application of the Act. It relevantly provides as follows:
“5 Civil liability excluded from Act
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—
(a) an injury as defined under the WorkCover Queensland Act 1996, other than an injury to which section 36(1)(c) or 37 of that Act applies; or
Example for paragraph (a)—
hire company is injured at the premises of a host employer while driving a defective machine. The worker pursues claims for damages for civil liability against the labour hire company, the host employer and the manufacturer of the machine. The worker suffers a number of injuries but only 1 of them is accepted as an injury under the WorkCover Queensland Act 1996, section 34. This Act does not apply to any of the claims for damages.(b) an injury as defined under the Workers’ Compensation and Rehabilitation Act 2003, other than an injury to which section 34(1)(c) or 35 of that Act applies; or
(c) …(d) …”
The arguments
It is common ground that the applicant’s is not an injury to which s 34(1)(c) or s 35 of the WCRA applies. Section 34(1)(c) applies where a “worker” is injured whilst temporarily absent from the place of employment during an ordinary recess. Section 35 applies to various cases where a “worker” is injured whilst on one of several kinds of journey, such as a journey between the worker’s home and place of employment.
The applicant says that his injury is within paragraph (b) because his injury is an injury according to the definition of that term in the WCRA. Section 32(1) of the WCRA provides:
“32 Meaning of injury
(1) An injury is personal injury arising out of, or in the course of,
employment if the employment is a significant contributing factor to
the injury.”As mentioned, there is a factual question as to whether this applicant’s employment was a significant contributing factor.
The WCRA provides a scheme of workers’ compensation as well as a regime which affects claims at common law by employees against employers. In either respect, the Act applies only where the injured person is a “worker” as defined by that Act. It is common ground that it has no operation to the applicant’s case. Section 11(1) of the WCRA provides that a worker is an individual who works under a contract of service, but s 11(3) provides that a person mentioned in Schedule 2, Part 2 is not a worker. One of the categories within Schedule 2, Part 2, is that of employees of the Commonwealth; another is that of employees of a Commonwealth authority. Accordingly, the applicant had no right to workers’ compensation under the WCRA and nor is his common law entitlement to damages qualified by its provisions. He has received workers’ compensation payments, not under this Act but under the Safety Rehabilitation and Compensation Act 1988 (Cth).
So although he is not a worker under the WCRA and it does not operate to provide him with a right of compensation or affect his common law entitlement, he says that his injury is an injury as defined under that Act, so that he is within the exclusion of paragraph (b) of s 5 of the CLA.
The respondent argues that he is not within that exclusion, because it applies only to an injury suffered by a worker as defined under the WCRA. And it says that the legislative intention was to exclude from the CLA only claims for damages which are regulated by the WCRA.
The law before the Civil Liability Act
Paragraph (b) of s 5 was inserted by an amendment to the CLA, effected by the Justice and other Legislation and Amendment Act 2004 (Qld), s 22. But to understand the purpose of this exclusion it is necessary to consider the legislative antecedents of the provisions of the CLA which affect an assessment of common law damages. Some of those provisions, such as s 61 of the CLA which requires general damages to be assessed according to an injury scale value, do not have an equivalent in earlier legislation. But many provisions correspond with what formerly appeared in both the Motor Accident Insurance Act 1994 (Qld) (“the MAIA”) and the Personal Injuries Proceedings Act 2002 (Qld) (“the PIPA”).
Until the enactment of the CLA, each of the MAIA and the PIPA contained provisions of identical effect to sections 53, 54, 57, 58, 59 and 60 of the CLA. Section 53 of the CLA provides for the mitigation of damages in terms which correspond with what had been s 54 of the MAIA, and s 26 and s 49 of the PIPA. Section 54 of the CLA limits damages for loss of earnings or earning capacity by reference to an amount of three times average weekly earnings per week. An identical provision had been in the MAIA at s 55A and in the PIPA at s 51. The provision in s 57 of the CLA, which prescribes for a discount rate of five per cent to be applied in the calculation of the present value of a future loss or need for gratuitous services, had been found in s 55B of the MAIA and s 52 of the PIPA. The limitation on damages for loss of consortium or loss of servitium now contained in s 58, had been found in s 55C of the MAIA and s 53 of the PIPA. The limitation upon an award for gratuitous services, now in s 59 of the CLA, had been in s 55D of the MAIA and s 54 of the PIPA. And the provision for interest on past losses which is in s 60 of the CLA had been in s 55E of the MAIA and s 55 of the PIPA.
To this group might be added s 52 of the CLA, which limits the circumstances in which exemplary, punitive or aggravated damages may be awarded. Substantially the same provision had been found in s 50 of the PIPA. In the MAIA, s 55 had provided that no award of such damages could be made against an insurer on a motor vehicle accident claim, although it could be made against an insured person but without that person being entitled under the CTP policy to an indemnity in that respect. The CLA substituted a new s 55 into the MAIA, in terms which have the same effect as the former s 55, but which acknowledge the CLA as the statute which, prima facie, precludes an award of damages of this kind.[1]
[1] Section 55 now provides: “(1) Despite the Civil Liability Act 2003, s 52, if the court is of the opinion that the conduct of an
Before the enactment of the CLA then, there was this set of provisions, of substantially the same effect, operating within the MAIA and the PIPA. The operative provisions were those of the PIPA, except where that operation was displaced by the operation of the MAIA. The demarcation was according to the then terms of s 6 of the PIPA, which in part had provided as follows:
“6 Application of Act
…
(2) However, this Act does not apply to--
(a) personal injury as defined under the Motor Accident Insurance
Act 1994 and in relation to which that Act applies; or
(b) injury as defined under the WorkCover Queensland Act 1996;
…”The terms of subsection (2) must be discussed in order to interpret the very similar terms of the section which is the subject of this case: s 5 of the CLA. Before going to that, it can be seen that the PIPA left to the MAIA the regulation of claims for personal injury to which that Act applied. At least in the respects I have mentioned, the two statutes contained identical provisions, but with distinct fields of operation.
The enactment of the CLA was intended to pick up each set of provisions from those statutes and to relocate them within the CLA. In that way the CLA was intended to be the statute which covered the fields previously governed by the MAIA and the PIPA. There is nothing in the relevant extrinsic material which suggests that, at the same time, the legislature intended that any of those provisions, once they were relocated to the CLA, would not affect a claim as that provision under the MAIA or the PIPA would have done. In particular, there is nothing to indicate that any motor accident claim, previously to be assessed according to those provisions of the MAIA, should now be unaffected by, for example, the provision for the limitation on the assessment of a loss of earning capacity. Yet that is the consequence of upholding the applicant’s argument.
Before the enactment of the CLA, the circumstances of the present case would have engaged the MAIA and its provisions affecting the assessment of damages. Where an employee was injured in the course of his or her employment, but claimed damages against a person indemnified by a policy under the MAIA, it was that Act which regulated the claim. If the employee’s claim was against the employer, it was outside the WorkCover Queensland Act 1996 (Qld) (and now outside the WCRA) because of the definition of “damages” which excluded a liability against which the employer was required to provide under another Act.[2] And where the employee’s claim was against someone other than his employer, but who was insured under a CTP policy, it was outside the WorkCover Queensland Act, because that regulated claims against employers. Accordingly, in very many cases where employees claimed damages for injuries in their work, their claims were subject to the MAIA and to that set of provisions affecting the assessment of damages. Of course, the same types of cases are still regulated by the MAIA: what has changed, and which gives rise to disputes such as this one, is that those provisions are now found in the CLA.
[2] WorkCover Queensland Act, s 11; WCRA, s 10
The applicant’s submission is that the exclusion in s 5(b) of the CLA is the result of a policy to exclude from the impact of the CLA, claims by persons who are injured arising out of, or in the course of, their employment if the employment is a significant contributing factor to the injury. The suggestion is that the legislature has decided to leave the common law rights of such persons unaffected by provisions such as the various sections of the CLA which I have described. The problem with that argument is that identical provisions were already in place, prior to the enactment of the CLA, which affected the common law rights of employees injured in the course of their employment, at least where the liability was of a person insured under a CTP policy. The applicant’s argument would not preserve what had been the common law entitlements of such an employee; rather, it would immunise the employee against the incidence of statutory provisions which, until the enactment of the CLA, had qualified the employee’s common law entitlements. That result is difficult to reconcile with the stated objectives of the CLA.
What did the Personal Injuries Proceedings Act exclude?
This group of provisions affecting the assessment of damages was inserted in the MAIA in 2000.[3] They were replicated for certain other types of personal injuries claims, upon the enactment of the PIPA in 2002. What was the legislative intention for the operation of the PIPA upon work related injuries? As discussed, some of them were already regulated by the MAIA, and the PIPA specifically excluded them. Some were regulated by the WorkCover Queensland Act and, undoubtedly, the PIPA excluded them. But some were outside those statutes although they involved injuries in the course of employment and for which the employment was a significant contributing factor, but where nevertheless the claim was against someone not insured under a motor vehicle policy or the employer. They were claims which involved an “injury” in the terms of s 34(1) of the WorkCover Queensland Act, (the equivalent of s 32(1) of the WCRA) which until the enactment of the PIPA, were unaffected by that set of provisions for the assessment of damages. Did the PIPA intend to operate upon those claims, or was there a policy decision by the legislature to exclude them? As I will discuss, the Explanatory Note strongly suggests that the former was intended. The Second Reading Speech and the extensive debate of the Bill, provides no indication of the latter.
[3] By the Motor Accident Insurance Amendment Act 2000 (Qld), s 32
Section 6 of the PIPA excludes its operation in certain cases. As I have mentioned, the original s 6(2) provided that the PIPA did not apply to:
“(a)
personal injury as defined under the Motor Accident Insurance Act 1994 and in relation to which that Act applies; or
(b) injury as defined under the WorkCover Queensland Act 1996; …”
There is an apparent difference between those two paragraphs. The first of them has a qualification in terms of “in relation to which that Act applies”; the second does not, at least expressly. That difference could be considered significant, in that it might be thought that it was intended to exclude an injury as defined under the WorkCover Queensland Act, regardless of whether that Act applied to the relevant claim for damages. The difference, however, has another explanation. In the MAIA the term “personal injury” was and is very generally and not comprehensively defined.[4] And within s 5, it was (and is) provided that the Act applies only to certain personal injury. It was appropriate then to add the requirement, within s 6(2)(a) that the injury should be one in relation to which that Act applied. The definition of “injury” under the WorkCover Queensland Act was more specific and it contained no equivalent of s 5 of the MAIA. There was no corresponding distinction in the WorkCover Queensland Act between an “injury” as defined and such an injury to which the Act applied. The difference between those paragraphs of the original s 6(2) of the PIPA was due to a relevant difference between the MAIA and the WorkCover Queensland Act.
[4] By s 4 “Personal Injury” includes:
I respectfully agree then with what Philippides J said in Devlin v South Molle Island Resort [2003] 2 Qd R 346 at 352:
“[20] Nor do I accept that the omission in s 6(2)(b) of the PIPA of the words “and to which that Act applies”, which are present in s 6(2)(a) of the PIPA, supports the construction of s 6(2)(b) contended for by the respondent. The inclusion of those qualifying words in s 6(2)(a) arises because of the very broad terms in which “personal injury” is defined in s 4 of the MAIA and the fact that the MAIA, in s 5, circumscribes the “personal injury” to which the MAIA applies.
[21] There was no similar need to qualify the words “injury as defined under the [1996 Act]” in s 6(2)(b) of the PIPA, because the 1996 Act in defining “injury”, incorporates limiting concepts circumscribing the application of the 1996 Act. … To include in s 6(2)(b) of the PIPA, the additional words present in s 6(2)(a) would have been superfluous. Given that definition of injury, and its context in the 1996 Act, which is concerned with claims against employers, s 6(2)(b) of the PIPA can only be construed as excluding, from the ambit of the PIPA, injury claims under the 1996 Act against employers, that is injury claims to which the 1996 Act applies.”
As her Honour then said, this construction is supported by the Explanatory Note for the Personal Injuries Proceedings Bill 2002 which, in relation to s 6(2), said:
“Excluded from the application of the Act are injuries to which the Motor Accident Insurance Act 1994 applies or injuries to which the WorkCover Queensland Act 1996 applies.”
The intention of s 6 of the PIPA upon its enactment in 2002, was to exclude, by the equivalent of what is now s 5(b) of the CLA, not any injury arising out of, or in the course of, employment (if the employment was a significant contributing factor), but only claims for injuries of that kind to which the WorkCover Queensland Act applied.
So it was intended that the PIPA, including the set of provisions which affected the assessment of damages, was to apply unless the claim was to be assessed by the identical set of provisions within the MAIA, or the different set of provisions, although still affecting common law rights, within the WorkCover statute. Any personal injuries claim was be affected by one of those statutes. That reflected a policy that in some respects, courts were not to be left to quantify awards solely according to the common law.
The Civil Liability Act
That remained the relevant policy behind the CLA. The intention was to have the CLA qualify common law rights, in particular as to the assessment of damages, apart from those cases governed by other statutes. The corresponding provision for the exclusion of the operation of the CLA did not exclude injuries to which the MAIA applied, because its provisions affecting the assessment of damages were effectively relocated into the CLA. Accordingly, s 5 of the CLA contained exclusions for injuries as defined (identically) under the WorkCover Queensland Act or the WCRA, but not for injuries for which the MAIA has an operation. Section 5 prescribes those exclusions in terms relevantly identical to the former s 6(2)(b) of the PIPA. Just as the intention of the former s 6(2)(b) was to exclude only injuries to which the WorkCover regime applied, so also is that the intention of s 5(b).
But to add a further complication, upon its enactment, the CLA itself amended s 6(2) of the PIPA. It did so in terms which the applicant says supports his argument. It amended s 6(2) to read as follows:
“(2) However, this Act does not apply to--
(a) personal injury as defined under the Motor Accident Insurance
Act 1994 and in relation to which that Act applies; or
(b) injury as defined under the WorkCover Queensland Act 1996, but
only to the extent that an entitlement to seek damages, as definedunder that Act, for the injury is regulated by chapter 5 of that Act.
Example for paragraph (b)--
W, a worker, sustains an injury in the course of employment. The injury is caused by a design fault in a machine. As a result of sustaining the injury, W seeks damages against both E, W's employer, and X Company, the designer of the machine.
Before starting a proceeding in a court for damages against E, W must comply with the pre-court procedures under the WorkCover Queensland Act 1996. Similarly, before starting a proceeding in a court for damages against X Company, W must comply with the pre-court procedures under this Act.
(This was subsequently amended to substitute the WCRA for the WorkCover Queensland Act.) The applicant says that upon enactment of the CLA, the legislature saw fit in that provision to expressly qualify the PIPA exclusion by the words “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”, whereas it did not do so within the exclusion in s 5(b) of the CLA. This demonstrates, the applicant argues, that the exclusion in the CLA is not limited to an injury for which Chapter 5 of the WCRA operates. On its face, that argument has force, until the true explanation for the difference between these two exclusionary provisions is identified. It appears from the Explanatory Note to cl 81 of the Civil Liability Bill 2003 and from the example which is given at the foot of s 6(2) of the PIPA.
The Explanatory Note for this amendment to s 6(2) of the PIPA, the subject of cl 81 of the Civil Liability Bill, is in these terms:
“Clause 81 amends the Personal Injuries Proceedings Act 2002 by amending section 6 of the Personal Injuries Proceedings Act 2002 to ensure that all personal injury actions are required to undergo a form of pre-procedure prior to commencing legal proceedings. The prior provision may have allowed proceedings to be commenced in instances where no pre-procedure had been entered into.”
Section 6(2)(b) contained an example (which is set out above and which has been amended only to refer to the WCRA) which related to “pre-procedure”. The purpose of this addition to s 6(2)(b), which is not found in the exclusionary provision of s 5(b) of the CLA, is then apparent. It is to ensure that the “pre- procedure” steps required by PIPA would be followed, although the injury was also the subject of a claim for damages governed by the WorkCover Queensland Act, (now the WCRA). By comparison, that was not a purpose to be served in the context of s 5(b) of the CLA. That is because the CLA does not prescribe “pre- procedure” steps.
Accordingly, this difference between the present terms of s 6(2)(b) of the PIPA and s 5 of the CLA does not support the applicant’s case. It does not indicate that within s 5 of the CLA it was intended to exclude an injury, for which a claim for damages is not subject to the WCRA. And it does not evidence a policy that all work related injuries should be immunised from the impact of the CLA, including those provisions of the CLA which replicate those of other statutes which had previously affected identical claims. In the Second Reading Speech in support of the Civil Liability Bill 2003, the then Attorney-General said:
“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;
… 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.”
So whilst the Attorney referred to “all work injuries” as being excluded, he also referred to an exclusion of “personal injuries that are within the WorkCover Queensland Scheme.”
The applicant relies upon the Explanatory Notes for cl 5 of the Civil Liability Bill 2003 which said:
“This exclusion will result in liability for those injuries in which employment is likely to be a significant factor being decided in accordance with the law as current before the commencement of the Act.”
But rather than supporting the applicant’s argument, this reference is strongly against it. The (presently relevant) law as current before the commencement of the Act was this: where the plaintiff was an employee and the employment was a significant contributing factor, but where the employer was indemnified against its liability under its motor vehicle policy, the employer’s liability, and specifically the assessment of damages, was according to the MAIA. The applicant’s argument would be to change that law, so that the identical provisions now in the CLA would not apply.
The meaning of section 5(b)
In summary, the legislative history is that immediately prior to the CLA, personal injuries claims were already the subject of statutes which affected, in each case, the assessment of damages at common law in work related claims. It was in that legal context that the CLA was enacted. Its policy was to continue and in some respects increase the extent of the statutory qualification of common law rights; it was not to provide for an unqualified operation of the common law in a certain type of case, and in particular, where an employee was injured by someone whose liability was insured under a motor vehicle policy.
What then is “an injury” as defined under the WCRA? The intention of s 5(b) is to exclude a certain category of claims for damages for personal injury. The WCRA affects a certain category of claims, and by its terms, it defines that category. Those terms include but go beyond its s 32(1). It is possible to describe that category in terms of the circumstances in which the injury occurred. Even within s 32(1) they are circumstances which in part concern the physical occurrence and cause of the injury, and in part involve the legal status of the claimant (as an employee) and the legal context in which the injury was suffered (in the course of employment). The WCRA further defines its relevant category of claims by its provisions which give meaning to terms such as “worker” and “damages”.[5] It can be seen then that the WCRA effectively defines its category of damages claims by reference to an injury which occurs in a set of certain physical and legal circumstances. In that way it defines an injury which is relevant to its regulation of damages claims. By the expression “an injury as defined under the [WCRA]”, s 5(b) refers to an injury occurring in a set of circumstances which would bring a damages claim for that injury within the regime of the WCRA. It is possible then to interpret the words of s 5(b) consistently with the likely purpose of that exclusion, having regard to the objects of the CLA itself and to the law which was current before its enactment.
[5] Section 10
Accordingly, s 5(b) excludes the operation of the CLA only where the claim is governed by the WCRA. It is common ground that the WCRA has no operation to the applicant’s claim. Accordingly the CLA does apply to it.
There is a narrower basis upon which the same conclusion could have been reached. Assuming that s 5(b) directs the inquiry only to s 32 of the WCRA (as the applicant submits), still this claim is not within s 32. That is because there is no “employment” as that term is used in the WCRA. Although that term is not itself defined, the term “employer” is defined as “a person who employs a worker” (s 30). Subsection 30(4) provides that the reference to an employer of a worker who sustains an injury, is a reference to the employer out of whose employment, or in the course of whose employment, the injury arose. The meaning of “employment” should correspond with the meaning of “employer” in the WCRA. So employment as that term is used in this Act is the relationship of “employer” and “worker”. In particular, within s 32(1), the employment is that of a worker. An injury cannot arise out of, or in the course of “employment” unless it is an injury to a worker. As already explained, the applicant is not a “worker” because he was employed by a Commonwealth authority. So even upon the applicant’s approach of going only to s 32(1), the applicant’s injury is not within that provision and his claim would not be excluded. However, the claim is excluded also upon the broader basis that it is not a claim to which the WCRA applies.
Since the hearing of this case, Dutney J has delivered his judgment in Newberry v Suncorp Metway Insurance Ltd [2005] QSC 210, in which he reached a contrary view as to s 5(b). In that case, the claimant was a worker but the damages regime in the WCRA did not apply because the employer’s liability was insured under the MAIA. Dutney J concluded that the injury there was one as defined under the WCRA, by an acceptance of the applicant’s argument in this case. His Honour saw a strong indication for that interpretation by the comparison with the present terms of s 6(2)(b) of the PIPA. From what I have said as to that comparison and otherwise said in these reasons, I respectfully disagree with that interpretation.
However, I do agree with his Honour’s approach to the application of the terms of s 32(1) of the WCRA, which is relevant to the factual question also raised by this application. In case it becomes relevant, I should express my view on that factual question.
Factual question
The respondent argued that the injury was not as defined in the WCRA because the applicant’s employment was not a significant contributing factor to the injury. The primary facts are not in dispute and I have summarised them already. I accept the respondent’s submission that something more than simply a “but for” test must be applied in this context. On the other hand, as the respondent accepts, it is not necessary that the injury be caused by some default of the employer. This accident occurred because of a near collision between two vehicles upon a footpath. It can be inferred that the presence of another vehicle, which was the applicant’s motor- cycle, was not noticed by the first respondent as she backed out of her driveway; otherwise she would not have reversed as and when she did. As is conceded, she ought to have noticed the applicant. But the prospects of an accident were increased by the fact that the motorcycle was not on a road, but on a footpath where the presence of a moving vehicle would be less likely. The applicant’s work as a postman required him to ride on the footpath. It required him to do something which produced an unusual circumstance which I would infer was a significant contributing factor. In that way the employment was a significant contributing factor to his injury. Had I upheld the applicant’s legal argument, I would have made the declaration which he sought.
Orders
I declare that the Civil Liability Act does apply to the applicant’s claim against the first and second respondents for damages for personal injury arising from a motor vehicle accident on 30 July 2003. Subject to any submission, the applicant should pay the respondents’ costs of this originating application to be assessed upon a standard basis.
insured person is so reprehensible that an award of exemplary, punitive or aggravated damage is justified, the court may give a separate judgment against the insured person for the payment of exemplary, punitive or aggravated damages.
(2) An insured person is not entitled, under a CTP insurance policy, to an indemnity against an
award of exemplary, punitive or aggravated damages.”
(a) fatal injury; and (b) prenatal injury; and (c)
damage to spectacles, contact lens, dentures, hearing aids, crutches, wheelchairs, artificial limbs and prosthetic devices
3