Case Note: Kennedy v Queensland Alumina Limited [2016] QCA 159

This was the appeal of a personal injuries decision in which the plaintiff was awarded $191,061.91, a reduced amount on account of 50% contributory negligence as determined by the presiding Judge. The plaintiff appealed both quantum and contributory negligence but his appeal was dismissed, and he was ordered to pay costs for failing to substantiate any reason for reduced liability or error in decision by the trial judge.

The appellant worked at an alumina refinery for three years. Part of his role was to attend to pipework in the plant, which was described as complex and consisting of a vast array of pipes. On the night of the incident, the appellant was asked to replace a “blind”, which controlled the flow through a particular pipe to a large tank containing extremely hot caustic solution.

The appellant stopped the flow of the caustic solution, however he did not carry out all of the procedures required to ensure that it was done safely. He mistakenly thought that the valve stopping the solution was closed, when it was in fact open, and even though the flow had stopped, he failed to prove “isolation” of the pipe (that it was completely drained of solution).

Believing that all of the solution had been drained from the pipe, the appellant knelt in front of the open pipe, attempting to complete his task. The appellant heard a loud bang (which he believed was a blockage in the pipe that had suddenly released) followed by a large flow of the caustic solution that sprayed out of the pipe at considerable speed striking the appellant’s face and chest.

The major issues at trial were the appellant’s training and experience, and his failure to isolate relevant pipework, as well as determining the extent to which the respondent was admitting liability.

The trial was run on the basis that the competence of the appellant to perform the task of replacing the blind was in issue, and considerable evidence was led as to the appellant’s experience, training and the complexity, or otherwise, of the task. The respondent’s witnesses gave evidence that the job was a simple one, too simple to be used for training purposes, and that it was a task in which the appellant had been trained, qualified and re-tested annually, and must have been familiar with. The appellant made no objections to this evidence and admitted that he was aware that blockages in pipes were commonplace.

The Trial Judge determined that, beyond doubt, the appellant did not isolate the pipe he broke from the caustic solution in any reliable way. However the Trial Judge also determined that had the relevant valve been clearly marked, the appellant’s failure to follow proper process would not have mattered because he would have seen that the valve was open. In the original decision, this was how the presiding judge determined the apportionment of 50% contributory negligence to the appellant.

On Appeal

It was plain that the appellant’s reliance on the valve, without testing it, was impermissible according to his training. It was plainly put to the appellant that his method of isolation was faulty; that he did not prove isolation and that he did not comply with his training. The steps the appellant took, which he swore were sufficient to isolate the relevant pipe, were determined as being faulty.  Therefore the appellant’s appeal failed where he argued that his method was sufficient for proving isolation.

With regard to the appellant’s plea for increased quantum of damages, he argued that the Trial Judge had not properly considered the evidence of several witnesses, including some expert witnesses, that he had failed to state the assumptions on which the award for economic loss was based, contrary to the Workers’ Compensation and Rehabilitation Act 2003 (Qld), and that His Honour failed to give adequate reasons for his award of damages in relation to future economic loss.

Another noteworthy plea of the appellant was his submission that the Trial Judge had erred in refusing to grant leave to the appellant to reply upon a further expert report delivered just 12 days before trial (in breach of court rules). On appeal, Justice Dalton rejected this submission stating, “[T]he trial judge exercised his discretion during the course of a trial, on a matter concerning compliance with the Court rules, and I would be loath to interfere with such a decision which was not plainly unreasonable.”

Not surprisingly, the appeal was completely dismissed and the appellant was ordered to pay costs.

 

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