Australia: Claim dismissed: Queensland Court of Appeal upholds 50% contributory negligence finding

On 30 November 2015, HopgoodGanim Lawyers Insurance and Risk team posted an alert discussing the outcome of the decision of Kennedy v Queensland Alumina Limited [2015] QSE 317. In that decision, the Supreme Court of Queensland reduced the award of damages made to an injured worker by 50% on account of contributory negligence.

The plaintiff, Paul Kennedy appealed that decision to the Queensland Court of Appeal on the basis that the finding of 50% contributory negligence was too high and the quantum assessed by the Trial Judge was too low. The appeal was dismissed.

In the following alert, Associate Janine Oberhardt and Partner Robert Tidbury discuss the appeal decision of Kennedy v Queensland Alumina Limited [2016] QCA 159.

Key points

  • If the worker's conduct is found by the court to be conduct consistent with mere inadvertence or inattention a finding of contributory negligence is unlikely to be made.
  • Conversely if the worker's conduct constitutes a material departure from established safe work procedures the injured worker's claim may be susceptible to a reduction for contributory negligence well above the general yardstick of 25%.
  • Establishing whether a worker's conduct constitutes mere inadvertence as opposed to contributory negligence, involves a consideration of the task that the worker was required to perform and the reasons why the worker departed from any training and instruction. Repetitive and mechanical work and tasks performed in rushed circumstances where the worker is susceptible to distractions are far more likely to produce lapses in concentration, thereby constituting conduct more consistent with mere inadvertence as opposed to contributory negligence.
  • Ordinarily the injured worker's lawyers will take objection at trial to surveillance or similar evidence which impugns their client's credit if it has not been disclosed prior to trial. To prevent such objection being upheld the defendant employer should make a prior ex-parte application to the court for orders relieving the defendant of its disclosure obligations.

The facts

The Appellant, Paul Kennedy, was employed with Queensland Alumina Limited (QAL) as a level 2 alumina producer. On 15 January 2012, he suffered burn injuries to his left ankle and developed post traumatic stress disorder when he was sprayed with a caustic solution whilst operating a pipe in the course of replacing what was known as a "blind" in a mill sand relay underflow tank pipe's suction line.

To replace the blind, Mr Kennedy was required to break into the vertical pipe at the flange situated at the base of the pipe. This required him to close the pump suction valve and then ensure hot caustic solution was not present in the pipe above the flange in any significant quantity and not under pressure from the tank above. This was referred to as 'isolating' the pipe. Whilst performing this work, Mr Kennedy accidently opened the pump suction valve and then failed to isolate the pipe, resulting in caustic solution coming into contact with his left ankle and foot.

Liability was admitted at trial at first instance with contributory negligence and quantum remaining in issue. Ultimately, the claimant was awarded $191,061.91 in damages and liability was apportioned as between the plaintiff and QAL at 50/50.

The appeal

Mr Kennedy appealed the decision on the basis that the Trial Judge erred in finding that he was 50% contributory negligent and that the quantum award was too low. The matter was heard by Gotterson JA and Atkinson and Dalton J.

With respect to Mr Kennedys arguments relating to contributory negligence, the Court of Appeal examined the findings in relation to the training provided by QAL in isolating the pipes. In its discussion on the issue the Court stated:

'the case that the appellant failed to prove isolation was sufficiently put to him in cross examination. It was plain that the respondent said his reliance on the valve, without testing it, was impermissible according to his training. It was plainly put to him that his method of isolation was faulty; in the circumstances of the case he could hardly contend otherwise. It was put to him that he did not prove isolation and did not comply with his training. A good deal of time was spent on this topic and the appellant had ample opportunity to explain either why his actions were sufficient in terms of his training, or explain that in the pipe work configuration which confronted him there was no better method for proceeding than the one he used.'

Therefore the Court of Appeal found that there was no substance in the argument that Mr Kennedy was not trained appropriately to perform the task he was allocated.

The Appellant also submitted that the Trial Judge's comments that Mr Kennedy 'failed to think it through' amounted to mere inadvertence and therefore a smaller discount should have been applied on account of contributory negligence. This argument was rejected by the Court having regard to the admitted knowledge of Mr Kennedy of the relevant principles associated with isolating a pipe; the simplicity of the system he was working on, and his failure to take any steps to prove isolation. It was noted that the task Mr Kennedy was performing was not mechanical or repetitive in nature and that his failure to isolate and prove isolation was unexplained by him and inexplicable on the whole of the evidence.

The Court of Appeal also rejected the appellant on his other major ground for appeal, namely that the amount of damages assessed by the Trial Judge was manifestly inadequate.

In arriving at that conclusion the Court of Appeal observed that the Trial Judge placed some weight on a 50 second video produced by the Respondent which showed the Appellant engaging in martial arts. The Appellant said on appeal that this video had not been disclosed prior to trial and nor was the video exempt from disclosure by the order of the court. In responding to this submission the Court of Appeal observed that no objection to the video's production at trial was taken and that precludes the issue being taken on appeal. Therefore the Court of Appeal saw no reason to interfere with the credit findings made by the Trial Judge which were described as temperate and soundly based in the evidence.

The appeal was dismissed.

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