In the recent decision of Kennedy v Queensland Alumina Limited [2015] QSC 317, the Supreme Court of Queensland reduced the award of damages made to an injured worker by 50% on account of contributory negligence.

Here, Associate Janine Oberhardt and Partner Robert Tidbury provide a summary of the Court’s decision.    

Facts

The Plaintiff, 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 caustic solution whilst opening a pipe in the course of replacing what was known as a ‘blind’ in a Mill sand relay underflow tank pipes 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 that 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 accidentally 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 whilst contributory negligence and quantum remained in issue.

Decision

The Trial Judge, Justice McMeekin, found that there were two reasons why the accident occurred. First, Mr Kennedy had erroneously opened the pump suction valve when he should have closed it and secondly, he failed to test or confirm the mechanisms pipe was isolated before breaking open the pipework, contrary to his training.  

It was not in dispute that the employer was liable with respect to the first issue, with the Court finding that the employer failed to ensure that an adequate system was in place for marking of the valves which would make certain that an operator knew when they were opening or closing them. However, the Defendant pleaded that Mr Kennedy was contributory negligent with respect to his failure to confirm isolation of the pipe, asserting that he received training and instruction with respect to the task and his departure from that training and instruction resulted in the accident.

In considering the evidence, McMeekin J accepted that Mr Kennedy had been taught the appropriate safety procedures and failed to follow them. The Court found that had the Plaintiff followed his training and instruction with respect to checking to ensure the pipe was isolated, then his mistake about the valve would have had no operative effect. His failure to follow his training, without excuse, went beyond the common law tests of ‘mere inadvertence, inattention or misjudgement’ and the Contributory Negligence provisions contained at section 305H (a) (c) and (f) of the Workers Compensation and Rehabilitation Act 2003 were engaged.

The Court concluded that Mr Kennedys departure from the standards expected of a reasonable worker was substantial, its causative effect on the occurrence of his injury was very significant and, therefore, liability was apportioned as between Mr Kennedy and QAL at 50/50.

The Plaintiff was awarded $191,061.91.

Take Away Points

  • Courts are prepared, in circumstances where the worker’s conduct involves a significant departure from established safety procedures, to make findings of contributory negligence which exceed the general yardstick of 25%;
  • In circumstances where the worker has materially departed from training and instructions, it will be necessary to examine the adequacy of any training and instructions provided to the worker and examine the cause or reasons for the departure from that training and instruction, when assessing a claim for contributory negligence;
  • In Queensland, both at common law and under statute, the onus lies on the employer to establish contributory negligence.