Damages for a woman injured while driving a bus in the course of her employment were assessed under the CLA, not common law, as her injury was not sufficiently connected to the "exigencies of [her] employment".

In Issue

  • The nature and extent of the plaintiff’s injuries
  • Whether damages should be assessed under the CLA or common law

The Background

Ms Foster, the plaintiff, was a bus driver. On 2 September 2014, while she was driving a bus in the course of her employment, she was involved in a motor vehicle accident when Ms Carter, the first defendant, lost control of her vehicle and collided with the rear of the bus.

The plaintiff sued Ms Carter and her insurer, RACQ Insurance Limited (the second defendant), for negligence, alleging that she suffered neck, spinal and psychological injuries as a result of the accident.

The defendants admitted liability for the collision, but the parties disagreed on the assessment of the plaintiff’s damages; namely the nature and extent of Ms Foster’s injuries, her future economic loss and whether damages were to be assessed at common law or under the Civil Liability Act 2003 (CLA).

The Decision at Trial

The trial judge considered that the plaintiff had exaggerated the symptoms of, and limitations caused by, the neck and spinal injuries she suffered as a result of the accident. The court also found that the plaintiff’s self-reported level of pain was not consistent with the available medical evidence.

In considering an award of general damages, the trial judge focussed on whether or not the plaintiff’s employment as a bus driver was factually significant to the occurrence of the accident. The court noted that the CLA does not apply to injuries for which compensation is payable under the Workers’ Compensation and Rehabilitation Act 2003 (WCRA). In circumstances where the WCRA applies, general damages are awarded in accordance with the common law.

Relying on the recent decision of Farnham v Pruden [2017] 1 Qd R 128, the trial judge noted that, in order to attract common law damages, the circumstances of the injury must arise out of the “the exigencies of the employment of the worker by the employer”.

Her Honour noted that the plaintiff’s statement of claim was framed as a general pleading for personal injuries arising out of a motor vehicle accident, without reference to the exigencies of employment having contributing to her injury. In these circumstances, the court rejected the plaintiff’s argument that her injury fell within the definition of “injury” under section 32 of the WCRA, as one that arose out of, or during the course of, her employment in circumstances where the employment was a significant contributing factor to the injury.

General damages were therefore assessed under the CLA. The court awarded the plaintiff $539,765 in damages plus costs.

Implications for you

This case highlights that a plaintiff needs more than just a connection with an injury and their employment in order to establish an entitlement to common law damages. It also emphasises that, in order to fall within the definition of ‘injury’ under the WCRA, statements of claim must be pleaded in a way that closely connects a plaintiff’s work demands to the circumstances of their injury.

Foster v Carter & Anor [2017] QSC 135