Australia: Ms Farnham's Castle and the law of common sense

The recent Court of Appeal decision of Farnham v Prudence & Anor [2016] QCA 18 has some parallels with the classic Australian movie, The Castle, in so far as both centre around the tale of a home and to quote Darryl Kerrigan, both involved wins for 'the law of common sense'.

Importantly, in Farnham the Court of Appeal had to consider the interaction of the Civil Liability Act 2003 (Qld) ('CLA') and the Workers' Compensation & Rehabilitation Act 2003 (Qld) ('WCRA') to determine if an injury sustained in a motor vehicle accident on Ms Farnham's journey from her home, where she worked, to a client's house invoked the operation of the WCRA and thereby avoided restrictions to damages applicable under the CLA.

Ms Farnham was employed as a community visitor for the Commission for Children, Young People and Child Guardian. She sustained injury in a motor vehicle accident on 21 May 2012. At the time of the incident, Ms Farnham was travelling from her home to the home of a client. Ms Farnham worked from home. She provided her own computer and car and created her own schedule but was reimbursed a travel allowance and stationary.

Liability was admitted. The central issue for the District Court and then the Court of Appeal was the calculation of quantum and whether the CLA applied to the claim, effectively limiting the damages Ms Farnham could obtain. The Court of Appeal held it did.

Central to the issue were the deeming provisions in the CLA and WCRA. In particular, section 5(1)(b) of the CLA which states that the CLA will not apply to an injury for which compensation is payable under the WCRA. Accordingly, the Court was required to look at whether Ms Farnham's injury was one that was covered by the WCRA.

Section 35 of the WCRA, which relates to journey claims, states:

  1. An injury to a worker is also taken to arise out of, or in the course of, the worker's employment if the event happens while the worker –
    1. is on a journey between the worker's home and place of employment.

'Place of employment' is defined as 'premises.... or place for the time being occupied by, or under the control of management of, the employer by whom a worker concerned is employed...'. 'Home' is defined as 'the worker's usual place of residence'.

In the event Ms Farnham's claim fell within section 35 of the WCRA and was a journey claim, the CLA would apply.

However, rather than delving into complex considerations of occupation, control, work and non-work tasks and work hours, the Court of Appeal decided the matter with reference to the plain and distinct meanings of 'home' and 'place of employment' under the WCRA. The Court said 'the mere fact that a worker does some work at home does not mean that it loses its character as the worker's home. The usual place of residence remains exactly that even though the worker does some work there'.

The Court also considered the application of section 32 of the WCRA and if Ms Farnham had sustained an 'injury' within the meaning of the Act. Section 32(1)(a) of the WCRA defines injury as:

'Personal injury arising out of, or in the course of employment if... the employment is a significant contributing factor'.

On this point, the Court of Appeal noted the case of Newberry v Suncorp Metway Insurance Limited [2006] QCA 48 which held that for employment to be a significant contributing factor to the injury the connection to employment must be significant and beyond that owed by one road user to another. In particular, 'The requirement of section 32 of the WCRA, that the employment significantly contribute to the injury, requires that the exigencies of the employment must contribute in some significant way to the occurrence of the injury caused by the breach of duty of the person (not the employer) against whom the claim is made'.

The Court of Appeal held Ms Farnham's employment was not a significant contributing factor and accordingly, she did not meet the definition of 'injury' under the WCRA. As the WCRA did not apply, the CLA did.

This case is important in our modern era of flexible work arrangements. As noted by President McMurdo in the decision '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 of 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 Civil Liability Act 2003 (Qld)'.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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