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Insurance Newsletter - July 2016 © Carter Newell 2016

Insurance Newsletter July 2016

Court of Appeal upholds 50% contributory negligence in an employment context

IntroductionThe Queensland Court of Appeal has recently handed down its decision in relation to an appeal against a trial judge’s decision to reduce a plaintiff’s damages in an employment context by 50%.

In the past, any reductions for contributory negligence in claims against employers have tended to be modest. Arguments against reductions for contributory negligence are usually on the basis that the employer’s duty extends to guarding against an employee’s inadvertence or even negligence, and that the duty is a high one.

While fact specific, the decision to reduce damages by 50% was nevertheless significant. The Court of Appeal in Kennedy v Queensland Alumina Limited1 has now upheld the trial judge’s decision.

Facts of the caseThe appellant worked at an alumina refinery. His duties included attending to a complex network of pipes in the plant.

At the time of the incident, the appellant was tasked with having to remove a component in a pipe that was designed to stop the flow of caustic solution at that point. The appellant was aware that the solution would cause severe burns if he came into contact with it. He was also aware that if the pipe was not isolated effectively, it might contain such solution.

When the appellant opened the pipe, he suffered burn injuries when caustic solution came in contact with his foot.

The trial judge, McMeekin J, found that there were two fundamental reasons why

Stephen White, PartnerMilton Latta, Senior Associate

www.carternewell.com

the incident occurred. The first was that the appellant opened the pump suction valve instead of closing it. The second was that he did not isolate the section of pipe on which he was working.2

The reason that the appellant opened the valve rather than closing it is that scale build-up on the valve and poor lighting resulted in his not being able to read the symbols which would have guided him. The employer was found liable for this.

In relation to the second cause, the trial judge found that the appellant had not followed the procedure that he had been taught. Moreover, the simple nature of the task militated against a finding that supervision was required.

In this regard, evidence was given by a superintendent employed by the respondent, who said that before an operator was certified as competent, it was necessary that they demonstrate they could apply the principles as to isolation, and proving isolation, to the hardest configurations in the plant.3

The appellant accepted that he had been trained to first isolate, and then prove isolation, of any part to be worked upon, and that part of his training was that in proving isolation he was never to trust a valve.

In assessing contributory negligence, the trial judge referred to the High Court decision in

Bankstown Foundry Pty Ltd v Braistinahe,4

in which it was stated:5

‘The law is that the damages recoverable by the [worker] by reason of the fault of the [employer] “shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”: Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 10(1).[79] A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage: see Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 493–4; [1985] HCA 34; 59 ALR 529 at 532. In Podrebersek (ALJR) at p 494; (ALR) at pp 532–3, the court said:—

‘The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage…’’

The trial judge found that the appellant’s actions went well beyond ‘mere inadvertence, inattention or misjudgement’.6

Counsel for the appellant argued that the real problem lay with the inadequacy of the employer’s system. The trial judge found,

Insurance Newsletter - July 2016 © Carter Newell 2016

however, that the possibility of a valve not being effective was at the heart of the employer’s system, and that it was the appellant’s failure to follow this system that contributed to his injuries.7

On that basis, the trial judge concluded that the appropriate apportionment was 50/50.

On appealOn appeal, Dalton J, with whom Gotterson JA and Atkinson J agreed, observed that it was beyond doubt that the appellant did not isolate the pipe he ‘broke’ from the caustic solution, and that he gave no evidence that he did anything which was capable of logically proving isolation.8

Her Honour further observed that, had the appellant taken steps to prove isolation, the accident would not have occurred, and, conversely, had the valve in question been clearly marked, the appellant’s failure to prove isolation would not have mattered. It was not in dispute that these were the matters that the primary judge weighed in coming to an apportionment of 50% contributory negligence on the part of the appellant.9

The appellant contended that the trial judge erred in finding that the appellant had been trained in isolating the particular pipe he was working on. In rejecting this, Her Honour noted that there had not, in fact, been a finding that the appellant’s training was in respect of a particular pipe, but that he had been trained in the appropriate method for isolating pipes in general. Moreover, the appellant accepted that he had been trained in all relevant principals, which was consistent with evidence that regular training was provided by way of annual refresher.10

The appellant also contended that the trial judge, having found that one possible reason for the appellant’s failure to prove isolation was a failure to ‘think it through’, ought to

have made a much smaller apportionment on account of contributory negligence. This was on the basis that a failure to ‘think it through’ equated to mere inadvertence. In rejecting this, Her Honour made the point that the task that the appellant was required to undertake involved his having to think through the principles in which he had been trained. She went on to say:

‘It was not that he was engaged on some mechanical or repetitious task like the worker in Bankstown Foundry Pty Ltd v Braistina [2] and momentarily let his attention wander. He was not distracted or rushed. His failure to isolate and prove isolation was unexplained by him, and inexplicable on the whole of the evidence.’11

For these reasons, the appeal was dismissed. The Court of Appeal ultimately found that there was no reason to disturb the apportionment of liability between the appellant and the respondent.

ConclusionThe decision in Kennedy, while plainly fact specific, demonstrates a potential shift in the willingness of the courts to hold employees more accountable for their actions, rather than conveniently label them under ‘inadvertence or inattention’.

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any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.

© Carter Newell Lawyers 2016

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If an employee has made a deliberate decision to put himself or herself in harms way, and the system of work has not contributed to that decision, then it is likely that the employee will bear a greater responsibility for the incident than what would otherwise have been the case.

This is an important decision for defendant litigants and is a timely reminder on the correct application of the principles of contributory negligence.

.....1 [2016] QCA 159.2 Kennedy v Queensland Alumina Limited [2015] QSC 317 [24].3 Kennedy v Queensland Alumina Limited [2016] QCA 159 [17].

4 (1986) 160 CLR 301.5 Kennedy v Queensland Alumina Limited [2015] QSC 317 [86].6 Ibid [90].7 Ibid [93].8 Kennedy v Queensland Alumina Limited [2016] QCA 159 [19].9 Ibid [19] [20].10 Ibid [31].11 Ibid [40].

Authors

Milton LattaSenior Associate

P: (07) 3000 8356E: mlatta@carternewell.com

Stephen WhitePartner

P: (07) 3000 8354E: swhite@carternewell.com

QLS Essentials Workshops - Brisbane Brett Heath, Special Counsel will be presenting ‘Affidavits: Practical tips for preparation’ at the upcoming workshop. Knowing how to prepare a credible and sensible affidavit is a fundamental skill that every lawyer should have. Join our presenter and brush up on the key things to do when preparing to draft an affidavit.

Nola Pearce, Special Counsel will also be presenting ‘Affidavits: Perfecting the art of drafting’. Affidavit evidence is generally the most common form of evidence tendered in civil proceedings, whether at interlocutory or (at least as to evidence in chief) final hearings. Shaping the evidence into its best form to achieve your client’s objectives is a necessary and powerful skill for any litigator.

To find out more, please visit www.carternewell.com.

DateWednesday

3 August 2016

Time1.00 - 4.30pm

LocationLaw Society House

Brisbane