In Kennedy v Queensland Alumina Ltd (2015) QSC 317, Paul Kennedy (the Claimant) claimed approximately $950,000.00 in damages against his employer Queensland Alumina Ltd for a work injury on 15 January 2012. QAL admitted primary liability but argued contributory negligence on the part of the Plaintiff. The issues for determination at trial concerned whether the Claimant could be held contributory negligent and to what extent there should be a reduction, whether the Claimant was a credible witness and what damages were appropriate to be awarded.

The injury occurred when the Claimant was opening a pipe that carried a caustic solution. The caustic solution would cause severe burns on contact, and the evidence revealed the Claimant was well aware of this. The evidence also revealed that the Claimant was also aware that if the pipe was not isolated properly it might contain caustic solution. The Claimant was injured as a result of the pipe not being isolated properly from the tank of caustic solution. In order to isolate the pipe the Claimant had to turn a hex nut to the closed position in order to close the suction valve. It was undisputed that the Plaintiff in fact turned the hex nut to the open position. The Plaintiff neglected to follow an appropriate isolation instruction in this instance.

Justice McMeekin determined that there were two fundamental causes for the accident. Firstly, that the Plaintiff had opened the pump suction valve instead of closing it. Secondly, that the Claimant did not prove isolation. Justice McMeekin held that QAL was liable for the first cause (the Plaintiff accidentally opening the pump suction valve) in circumstances where there was a scale build up on the hex nut which obscured the (o) for open and (c) for closed symbols. That is, there was a failure in this case by the Employer to provide a safe hex nut that could be safely opened on visual inspection. That said, the Claimant was also held liable for the second cause of injury in failing to prove and follow isolation techniques. It was held in relation to the Claimant's breach that had he followed the procedure that he had been taught, that is, had he followed the isolation technique the accident would not have occurred. Importantly, Justice McMeekin found that the Claimant had been adequately trained, knew the appropriate instruction of proving isolation and failed to follow this instruction. It was therefore determined that the Claimant's actions on the evidence went beyond "mere inadvertence inattention and misjudgement". The Claimant's departure from the standards expected of a reasonable worker was substantial and the causative effect of his negligence was significant. That being the case McMeekin J held that the appropriate apportionment was 50/50 between QAL and the Plaintiff.

In any employment law case a 50% reduction for contributory negligence is unusual when regard is had to the onerous duty of care imposed on employers. What sets this case apart however was that the Employer could prove actual knowledge on the part of the Claimant in terms of the correct procedure, the Employer could prove that the required training had been provided and had correct procedure been followed it would have made a material difference to the outcome.

This case illustrates the importance of a documented and enforced process of instruction and training of employees. Although cases demonstrate that obtaining a reduction for contributory negligence is invariably difficult in that courts make allowance for the inadvertence of the workforce generally, contributory negligence can be obtained if there is compelling evidence of knowledge on the part of an injured worker as to the correct procedure, firm evidence that the correct procedure was not followed and firm evidence that this would have made a material difference to the outcome.

In this case the damages awarded to the Claimant were also significantly reduced having regard to relevant issues of credit commented upon by McMeekin J. The Claimant recovered damages for ongoing problems with irritation caused by work boots, significant disfigurement from scarring and impairment to earning capacity, although it was found my McMeekin J that the psychiatric injury resulting from the accident was largely in remission.

Taking into account the 50% reduction for contributory negligence, the Claimant was awarded the sum of $191,061.91. This was an adverse result for the Claimant both in terms of the reduction for contributory negligence and the award of damages ultimately made. In this matter the Claimant was also ordered to pay the costs of QAL on a standard basis in circumstances where the damages awarded to the Clamant did not exceed the Mandatory Final Offer made by WorkCover at the earlier compulsory conference process.

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