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Kennedy v Queensland Alumina Limited

 

[2015] QSC 317

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Kennedy v Queensland Alumina Limited [2015] QSC 317

PARTIES:

PAUL THOMAS KENNEDY

Plaintiff

v

QUEENSLAND ALUMINA LIMITED

ACN 009 725 044

Defendant

FILE NO/S:

S705 of 2014

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Rockhampton

DELIVERED ON:

18 November 2015

DELIVERED AT:

Supreme Court Rockhampton

HEARING DATE:

29, 30 September, 1 October, 29 October, 5 November – final submissions received 6 November 2015; application under the slip rule – 16 November 2015

JUDGE:

McMeekin J

ORDER:

Judgment for the plaintiff in the sum of $191,061.91. 

CATCHWORDS:

TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – GENERALLY – where the plaintiff was involved in a workplace accident when caustic solution came into contact with his left heel and ankle while breaking into pipework – where the plaintiff physically injured and suffered post-traumatic stress disorder following the accident – where the defendant admits liability but claims contributory negligence on the part of the plaintiff – whether training was provided by the defendant to the plaintiff to safely break into the pipework – whether the plaintiff was contributorily negligent

TORTS – NEGLIGENCE – PROOF OF NEGLIGENCE –  WEIGHT AND CREDIBILITY OF EVIDENCE – whether the plaintiff was a credible witness

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – METHOD OF ASSESSMENT – LOSS OF EARNINGS AND EARNING CAPACITY – DEDUCTIBILITY OF SPECIFIC BENEFITS AND AMOUNTS – where the true extent of the injuries claimed are in issue – where the plaintiff had been offered a job in Western Australia before the accident but was unable to take the position due to his injury – where the defendants seeks exclusion of travel allowance portion of the plaintiff’s potential income in Western Australia – to what extent should the lost opportunity to earn a higher income in Western Australia be taken into account 

Law Reform Act 1995 (Qld), s 10(1)(b)

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 237(1)(a), s 305H, s 306J

Workers’ Compensation and Rehabilitation Regulation 2014, Schedule 8, Schedule 9, Schedule 12

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301

Hughes v South Australian Harbours Board [1951] SASR 129

Kemp Meats Pty Ltd v Tompkins [2014] QCA 125

Kondis v State Transport Authority (1984) 154 CLR 672

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638

Negric v Albion Scrap Steel Pty Ltd [1978] Qd R 362

Sharman v Evans (1977) 138 CLR 563

Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 

COUNSEL

C Heyworth Smith QC with M Smith for the plaintiff

S Deaves for the defendant

SOLICITORS:

MurphySchmidt Solicitors for the Plaintiff

DibbsBarker for the Defendant

  1. McMeekin J: The plaintiff, Paul Thomas Kennedy, claims approximately $950,000 in damages against his employer, Queensland Alumina Limited (QAL). He suffered an injury at his workplace on 15 January 2012 when caustic solution came into contact with his left heel and ankle.
  1. QAL admits liability but says that Mr Kennedy was contributorily negligent. Mr Kennedy says he was not. The assessment of damages is also in issue.
  1. Mr Kennedy was born on 6 December 1985. He was therefore 26 years of age when injured and is now 29 years old.

LIABILITY

The Task

  1. The injury occurred while Mr Kennedy was opening a pipe. The purpose of the pipe was to convey caustic solution. Mr Kennedy was well aware that the solution would cause severe burns if he came into contact with it. He was also well aware that if the pipe was not isolated effectively it might contain such solution. He was injured because he did not isolate that section of pipe from the tank overhead. QAL says he was at fault in failing to do so.
  1. It was about 10:30 pm. At the relevant time Mr Kennedy was working alone although a Mr Rigby, a more experienced operator, was working nearby and went with him to “smoko” part way through the work.
  1. Mr Kennedy’s task was to replace what was known as a “blind” in the number 9 Mill sand relay underflow (known as SRUF) tank pipe’s suction line. It is necessary to explain the setup of the pipework in question. It is not complex.
  1. The photograph, Exhibit 2, portrays the area. A large tank (the SRUF tank) containing extremely hot caustic solution was suspended above a vertical pipe. The vertical pipe conveyed the solution to some other part of the works. A valve (“number 9 Mill SRUF pump suction valve”) was located towards the top of the vertical pipe. When turned to the closed position it should ensure, if functioning as designed, that no solution entered the vertical pipe from the tank. At the bottom of the vertical pipe was a flange. Mr Kennedy was to replace the blind at that point. About half way down the vertical pipe from the tank was another pipe running horizontally. It was known as the “drain leg”. There was a cap on the drain leg. There was a valve positioned along the drain leg (the “flushing liquor valve”). It was controlled by a lever.[1] When closed it would prevent the caustic solution running along the drain leg.
  1. To replace the blind Mr Kennedy had to break into the vertical pipe at the flange at the base of the pipe. Obviously he had to make sure that hot caustic solution was not in the pipe above the flange in any significant quantity and not under pressure from the tank above – to use the terminology adopted at the plant he had to “isolate” the pipe.

What did Mr Kennedy Do?

  1. When Mr Kennedy arrived at the location of the proposed work he touched the pipe. It was hot. He took that to mean that it was “live” or “energised” – that it had, or potentially had, caustic solution, or “process”, in it. He then closed the pump suction valve. He did this by turning a hex nut to what he thought was the closed position. It is common ground that he in fact opened the valve.
  1. After closing the pump suction valve Mr Kennedy then closed the flushing liquor valve on the drain leg. He then hung two tags – a purple and a blue tag – on each of the valves he had closed. The purple tag indicates that a local isolator had isolated the equipment and that no one else should touch it. The blue tag was Mr Kennedys’ personal isolation tag. It indicated that it was Mr Kennedy who had hung the purple tags and was working on the equipment. Under QAL’s policy, no-one else should operate or touch this equipment until those tags were gone.[2]
  1. Mr Kennedy then completed an orange tag.[3] He placed that tag in his pocket. It was found after the accident. Mr Kennedy said that “an orange tag indicates where a person is to break into a piece of equipment.  So you would place an orange tag for someone so they knew where to begin work.”[4] Normally the tag should be hung. He did not do that. He said that he did not because “I was doing the job and I felt it unnecessary to hang a tag when I was doing the job at the same time”.[5]
  1. Mr Kennedy said that his next step was to “break into the pipework to prove drainage.”[6] To do that he loosened three bolts on the flange at the base of the pipe where he intended to insert the blind.[7] A “show of liquor” appeared from the opened section of the flange “at a steady pace” which, Mr Kennedy said “showed good sign of drainage.”[8]  He thought that the volume of liquor that emerged did so at a “steady pace”[9] and represented “the top of the suction through to the bottom of the flange”[10] ie the entire vertical length of the pipe. The stream slowed to a dribble. He left the work at this point to go to “smoko” with Mr Rigby.
  1. After a half hour break Mr Kennedy returned to his task. No further caustic was emerging from the pipe. He removed the rest of the bolts from the flange. He put a “bit of force” onto the pipe his intention being to replace the blind with a spacer. That caused the pipe to move but “not a massive amount… enough that you could see movement.”[11] He was kneeling on one knee facing the pipe. His evidence as to what then occurred was as follows:

“As the last bolt was removed and I’d finally got the blind out, there was a noise from above my head and then instantly, the flow – the – the caustic shot out or sprayed out at a large force and was deflecting off the blind that I had holding in my left hand and then striking me in the face.  And chest. 

Okay.  Just pause there.  Where approximately above your head did you hear the sound come from?   So my chest – I believe my chest height was at about the valve, the – the ball valve that I put the tag on.  So just above where my shoulder was is where I heard the noise. 

And describe the noise?   So, it was – it was like a – a bang noise like something had given way.

Had you heard any similar sort of noise before?   Yes, I have.  When pipe – when blockages are in pipework and they suddenly release, there is a noise of it striking the pipe and that’s the banging noise. 

And how often had you heard such a noise?  How common was that?   It was relatively common with – with certain jobs because with the process, there is always scale and build up and with – with the flow and things changing, things break away and become loose and make those sorts of noises so they’re not uncommon.

Did you know that there was a blockage when you were working on it?   No, I did not.”[12]

  1. Mr Kennedy said that he was aware of the concept of proving isolation and defined it as: “…it’s ensuring that drainage is witnessed and adequate to perform the role of the job.”[13] He believed that his act of proving isolation was by “proving that the equipment was …no longer energised by breaking into that pipework”.[14] He believed that the pipework was isolated when he came back from smoko and “there was nothing else flowing out of that pipework.”[15] He said that he had not been trained in proving isolation in any other way.[16]
  1. Before turning to the issues it is necessary to note the potential source of the risks to the worker in breaking opening the pipework in the instant case. Obviously the process from the SRUF tank needed to be kept from entering the pipe that was to be opened. Closing the suction valve should isolate that tank but the training was that a valve was not to be trusted – you had to prove that it was effective before commencing work. Next there is likely to be process in the pipe between the suction valve and the blind. Finally the worker needs to be attentive to the possibility of a blockage. Mr Kennedy’s description of the event suggests that there was a blockage in the vertical pipe below the suction valve and above the level of the drain leg. Blockages were common enough and the workers were trained to expect and deal with the possibility.[17]

The Pleadings

  1. By its pleading QAL admitted that Mr Kennedy’s injury was caused by its negligence or breach of contractual duty. Unfortunately QAL did not say how it had breached its duty. The concept of contributory negligence involves the reduction of the damages recoverable “to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage”: s 10(1)(b) of the Law Reform Act 1995 (Qld). I cannot determine what is “just and equitable” without a finding as to the degree of departure by the employer from the standard expected.
  1. Mr Kennedy had pleaded 11 particulars of QAL’s breach of duty as follows:
  1. Exposed the Plaintiff to a risk of injury which could have been avoided by the exercise of reasonable care:
  1. Required, permitted and/or invited the Plaintiff to perform the tasks referred to in paragraphs 8 to 21 hereof:
  1. In circumstances whereby there was a foreseeable and unreasonable risk of danger or injury inherent in so doing;
  1. With the scale growth and/or not obscuring the “O” and/or “C” so as to preclude the Plaintiff from performing his employment safely;
  1. Failed to warn the Plaintiff, whether adequately or at all, and whether by the placement of signage or otherwise, of the risks and dangers inherent in, and associated with, him performing the task in the manner he was;
  1. Failed to instruct the Plaintiff, whether adequately or at all, how to perform the tasks required of him;
  1. Failed to undertake any or any adequate and/or sufficient inspection of the plant and equipment in general and, thereupon, remedy any dangers posed;
  1. Failed to carry out any or any adequate and appropriate risk assessment or safety audit in relation to hazards to which employees, including the Plaintiff, would or might be exposed;
  1. Failed to have in place a control measure to prevent live pipe work from being split;
  1. Failed to instruct the Plaintiff in a safe method of removing blinds and/or any blockage, whether adequately or at all;
  1. Failed to implement measures insuring the valve was clearly marked, so that it would not be dangerous to operate;
  1. Failed to provide and/or maintain for the Plaintiff’s use a safe workplace in which there was a safe system of work so that the Plaintiff could carry out his employment safely;
  1. Exposed the Plaintiff to a risk of injury which could have been avoided by the exercise of reasonable care.

  1. Ms Heyworth-Smith of Queens Counsel who appeared for Mr Kennedy argued that in the absence of any precision in QAL’s pleading it should be taken to have admitted all breaches particularized against it. However there is no obligation to plead to particulars. And the submission does not seem right as the evidence clearly showed that several of those particulars were not made out. I will give some examples.
  1. One is that it is quite evident that Mr Kennedy was well aware of the risks and dangers associated with his task (see 25(c) above). It was fundamental to his training. He said that he was trying to avoid the risk of being burned by the caustic solution when he was injured.
  1. Another is that there was no evidence of any inspection that could have been carried out that would have revealed any unknown dangers or somehow avoided the risk in question (see para 25(e)). Everyone at the plant knew that caustic solution was dangerous and was within these pipes on which the men worked. Mr Kennedy was as able as any other worker to inspect the positioning of the hex nut and he said he did.
  1. A third is that part of his training required that Mr Kennedy carry out a safety audit before commencing his task (see para 25(f) above) – he was required to (and did here) prepare a JSEA, a job safety environment analysis. I am quite satisfied that he was competent to perform that analysis.
  1. I am not quite sure what is meant by the pleading in paragraph 25(g). The task on which Mr Kennedy was engaged was to break open the pipeline. The issue was how to do so safely.
  1. It seems to me I must be guided by the evidence.

The Employer’s Breach

  1. There were two fundamental reasons why the incident occurred. The first was that Mr Kennedy opened the pump suction valve instead of closing it. The second was that he did not prove isolation. The employer does not blame Mr Kennedy for the first cause but does for the second.
  1. In my view it is clear that the employer is liable for that first cause. Mr Deaves, who appeared for QAL, submitted that this is where the employer’s breach of duty was to be found.
  1. It is common ground that there was scale build up on the hex nut obscuring the “O” and the “C” symbols[18] (see para 25(b)(ii) and 25(i) of the amended Statement of Claim). As well, visibility wasn’t as good at 10.30pm as in the daytime.[19] The combination of the scale build up and the poorer lighting resulted in Mr Kennedy not seeing the symbols which should have directed him. All this should have been foreseen by the employer and the risk of a mistake being made removed.
  1. I doubt that the scale build up amounted to negligence – the feasibility of cleaning off the scale remains unexplored. In fact the existence of such scale aroused no comment from any witness. I had the impression that it was simply to be expected. Whether it was practicable to remove it with sufficient regularity to ensure that none was present on the subject occasion is unknown.
  1. However it is difficult to see why the hex nut could not have been marked with say, yellow painted lines such that they ran horizontal when closed and vertical when open, and the workers instructed accordingly.[20] That would have, more than likely, avoided the incident and in general at least substantially reduced the risks. There was a directive after the subject accident that that be done.[21]
  1. There remains the debate about the adequacy of the training. It is fundamental to the contributory negligence argument.
  1. Before turning to Mr Kennedy’s culpability it is necessary to deal with the attack made on Mr Kennedy’s credibility.

Credibility

  1. QAL submits that Mr Kennedy’s evidence should be treated with “extreme caution and, in the absence of corroboration, it ought to be rejected”.
  1. The submission was that there were “numerous examples” of dishonesty. I do not accept that submission. But there is certainly good reason to be cautious in accepting Mr Kennedy. Some answers seemed self-serving. And, as submitted, he was defensive and evasive at times.
  1. Some of Mr Kennedy’s evidence was certainly wrong. An example was his evidence on how he identified that he was opening or closing the pump suction valve by reference to a brown mark that happened to be on one corner of the hex nut – he never having worked on that nut before. His claim that Mr Rigby had taught him this method of identification of whether the SRUF valve was opened or closed was denied by Mr Rigby[22] and his denial was not challenged. It is not credible that every nut in the plant happens to have a brown stain – apparently rust on this occasion – that somehow identifies which way it is to be moved. Its presence seems to have been fortuitous. It was submitted that the evidence was a “recent invention”. Perhaps.
  1. Mr Kennedy was criticised for his evidence that he had been “put off” work by QAL.[23] That was certainly an over statement. Mr Kennedy had taken annual leave and been called up for jury duty. There was no suggestion that he had been “put off” work for the period claimed at all.[24]
  1. Mr Kennedy claimed to have been subjected to bullying by his supervisor a Mr Cochrane. However he had signed a statement to the opposite effect.[25] The claim had little to do with the case, as I understand the issues. There are possible explanations for the written answer other than dishonesty, as Mr Kennedy claimed.[26] While it is odd that the claim would be made here where it is not greatly relevant but not reported to QAL despite QAL having, and so far as known, enforcing, a bullying and harassment policy,[27] Mr Kennedy would not be the first person to put up with boorish behaviour from a superior without making a fuss.
  1. These are all relatively minor matters. The most cogent attack was based on a video recording taken of Mr Kennedy when attending an Indonesian martial art school called “Silat Langkah Baru”. It is necessary to give some background.
  1. By age 18, and after 6 years of training, Mr Kennedy had obtained a “blue red belt” – one under instructor level. He apparently then gave up the sport and had remained at the blue red level for six or seven years. His evidence was quite vague but he said that he returned to the sport some months before the subject accident.[28] The accident then intervened and he again returned to the sport in November 2012 and so 10 months after the subject injury. He agreed that he carried out some sparring.
  1. The sport involves kicking, pivoting on both feet, blocking offensive manoeuvres with ones legs, and “take down” moves which can include entwining ones legs with the legs of the opponent.[29] Mr Kennedy denied doing some of these things in the sparring he undertook.[30] He agreed that the sport requires good balance, an ability to stand on one foot to pivot and kick, and an ability to move the feet quickly.[31]
  1. Mr Kennedy said that he had gone back to the school on only two or three occasions after his injury and that over a period, he thought, of a couple of months.[32] Extracts from Facebook suggested that he attended at least in November 2012 (twice), in August 2013, and in February 2014 – thus over a considerably longer period than the “couple of months” mentioned in his evidence. It is difficult to believe that Mr Kennedy was not well aware that his attendances had spanned a much longer period than “a couple of months”.
  1. The video was taken on 16 February 2014. It is quite short – about 50 seconds. It shows Mr Kennedy sparring with another member. Earlier in the day Mr Kennedy had assisted with sparring with some of the candidates for grading over the previous three or four hours.[33] The post on Facebook from the head instructor reads: “Paul taking advantage of Scott after four hours of grading in 30 degree plus heat.” “Paul” is a reference to Mr Kennedy. The video shows Mr Kennedy moving quickly and nimbly, striking with both left and right feet, pivoting on his injured foot and so taking his weight on the left foot. There is no sign of a limp and no hint of any discomfort. He appears unconcerned that he is using his left foot to strike his opponent. I have watched the video a number of times. I can discern no difference between the uses made of the right foot compared to the left.
  1. The appearance on the video is at odds with Mr Kennedy’s evidence. He said in cross examination that he had balance problems with his martial arts and suffered pain from running and “doing the moves” required.[34] His evidence in chief on the damages issue was largely contained in a prepared statement.[35] The paragraphs relevant to the sport are:

“371. I have tried training on two or three occasions since the accident. On those occasions I experienced heightened pain in my ankle from the pressure I put on it. I also had a lot of discomfort from a pulling sensation in my left ankle when extending my foot to do the training.

372. Any knock to my ankle is also really painful and sometimes causes a burning/nerve type pain which shoots up the back of my calf.”

  1. His description of that burning/nerve pain earlier in his statement is quite graphic. It is very difficult to reconcile the claims made in his statement with the activity depicted on the video:

“164.  I have an area on the outside of my left ankle which is permanently numb and has little feeling. If I touch or bump just above this area, and just below my ankle joint, I will experience a feeling that I can only describe as a jolting or zinging electrical current which shoots about a third of the way up the back of my calf. This area is really sensitive to any contact.

165.  I will also experience this nerve/electrical pain from activities such as wearing my work boots or generally from most physical activity, even if it is something as simple as walking for prolonged periods of time. On these occasions, the pain will usually shoot up the complete length of the back of my calf.

….

167.  On a scale of one to ten, I would describe the pain, at worst, as something above seven out of ten.

168.  On days off from work, I may experience the pain three or four times a day when not doing too much. If I am active on these days, I will experience the pain much more frequently.

169.  Whist working, I experience this pain fairly regularly by half way through the shift. I then experience the pain pretty consistently until the end of the shift and for a period afterwards.

170.  If I stop what I am doing when I first experience the pain and sit down, the pain will usually go away. I do not, however, really have this luxury while working for the Defendant. Consequently, during the course of the shift the pain gets more intense and more frequent.

171.  While working for the Defendant and experiencing this pain, I try not to let on that it is affecting me because I do not want anyone seeing that I am upset. I am, however, reduced to tears on my days off because of the pain.”

  1. The video is significant in several ways. One is the physical appearance of Mr Kennedy. He seems relaxed and comfortable. There is no sign on the video of any symptom of pain as described there or any problem with balance.
  1. Another is that if there had been any obvious problems with pain or balance in the past, or if the instructors were aware that the sport caused Mr Kennedy any significant pain, one would not expect that the school would call on Mr Kennedy to assist with sparring with candidates for grading or permit this contest to occur. I note the comment in relation to Mr Kennedy’s first attendance post-accident that he had “slotted in” as if he had “never left”.[36]
  1. A third and striking feature is the reflection on Mr Kennedy’s apparent attitude. I find it very difficult to accept that Mr Kennedy would involve himself in martial arts of this kind at all if his ankle was causing as much trouble as his evidence suggested.
  1. The Facebook pages or posts show attendances on at least four occasions.[37] Mr Kennedy said that these were the only occasions that he attended at the school. It may be that the Facebook posts found by the defendant do reflect all of Mr Kennedy’s attendances. If so, it strikes me as odd that the school would call on him for assistance with grading in February 2014 if he had last attended six months before.
  1. A consultant in rehabilitation and pain medicine, a Dr Tadros, had reported on Mr Kennedy. He had seen Mr Kennedy about three months before the video was taken. At the time he saw Mr Kennedy he, Mr Kennedy, was limping. Dr Tadros said that the activities depicted on the video were inconsistent with Mr Kennedy’s presentation to him.[38] He said that Mr Kennedy “shouldn’t present that way [meaning at his examination] if he can move like that on the video.”[39]
  1. I am conscious that Dr Tadros spoke of good days and bad days and patients saving up their energy for the looked for outing. But Mr Kennedy’s description of his difficulties are apparently of daily problems at a severe level and triggered by a touching or a bump. The martial arts activities are not explained away in this way.
  1. As well QAL pointed out in cross examination that Mr Kennedy had been active in various ways. After his injury he had undertaken a course to qualify as an ambulance paramedic. Apart from the physical aspects of the position he had completed various documents in which he had repeatedly said that he had no disability, impairment or long term condition. He joined the Rural Fire Brigade. He was required, or potentially required, to walk for many hours and carrying equipment in performing brigade work. He has maintained his employment with QAL with significant time on his feet. The argument was that engaging in these activities was inconsistent with the significant disability claimed. Dr Tadros agreed:

“All I can say to you is no.  All of those things don’t - it certainly doesn’t sound like it would be consistent with someone with chronic neuropathic pain in their left foot being able to do that.”[40]

  1. The only lay witness called to support Mr Kennedy was his sometimes estranged de facto Ms Pongii. An attack was made on her credit based largely on the view that she stood to benefit from any significant damages award as she and Mr Kennedy are contemplating getting back together. It was not put to her that she was being actively dishonest. So at most it is her reliability that is in issue.
  1. I was impressed with Ms Pongii. She appeared to answer the questions that she was asked without unnecessary qualification, in contrast to Mr Kennedy, and to do so without regard to the consequences. She was appropriately tearful at times when describing some of the stress that she had been under. I saw no reason not to believe her. The criticism that she sees Mr Kennedy only infrequently is accurate. And her description of what she has observed is at odds with the video evidence. But that simply means that Mr Kennedy portrays himself in a certain way to Ms Pongii.
  1. Those were the matters pressed by QAL. I am left with reservations. I conclude that I should treat Mr Kennedy’s evidence with considerable caution. As will be seen I have some difficulty with other aspects of his evidence. Overall my impression was that Mr Kennedy has come to believe certain things which are simply not so, and has sought to maximise his disability with some exaggeration.

Mr Kennedy’s Breach

  1. The only pleading of contributory negligence of any precision against Mr Kennedy is in paragraph 13(e)(iii) of the Defence:

“That your client failed to confirm isolation of the liquor from a SRUF pipe section valve contrary to his training.”

  1. I am satisfied that Mr Kennedy did not follow the procedure that he had been taught.
  1. It will be necessary to look more closely at Mr Kennedy’s experience and training. But at least two aspects of his training are not in issue. One is that he was not to trust a valve.[41] The second is that it was essential that he “prove isolation” before breaking open the pipework. So much is clear from the fundamental seven step “mantra” with which Mr Kennedy was very familiar.[42] In the instant case he did trust a valve – the pump suction valve that he accidentally opened instead of closing as he intended. And in my view he did not prove isolation or attempt to do so.

Mr Kennedy’s Experience

  1. At the time of the subject incident Mr Kennedy was a Level 2 Alumina Producer employed in the digestion section of the QAL plant. He had commenced his employment as a Level 1 producer in October 2008 and had been promoted to Level 2 after a little over two years of employment. The subject incident occurred just over a year later. Mr Kennedy had been employed in the digestion section, where the incident occurred, since he commenced his employment.
  1. Mr Kennedy had not worked on this particular pipe before. However I am satisfied that the essential task was familiar to him – he had to break into a pipe containing caustic solution. He had done somewhat similar work before, at least in an assisting role, probably at least on a monthly basis.[43]
  1. I am conscious that Mr Kennedy would have it otherwise. Mr Kennedy said that he had done “a few jobs with other mentors removing certain valves … but nothing to the extent of what was put in front of me that night.”[44] He did not explain further the differences between this task and other tasks that he had done, or between this task and his training. The crucial issue is not whether he had removed valves or blinds but whether he had broken into potentially energised pipework and had been required to isolate it. It was his understanding of the isolation procedures that is at the heart of the case. If it was the intention to suggest that proving isolation in energised pipework was novel to Mr Kennedy, and he clearly claimed that at one point,[45] then I cannot accept it. Nor can I accept that this was a complex system. The task seems entirely straight forward.
  1. A very different view of Mr Kennedys’ probable experience was given by QAL’s Operations Superintendent for the digestion area, a Mr Muller. Mr Muller had 22 years’ experience in the digestion area by the time of trial. He had originally been the isolation and tag out supervisor and then superintendent in digestion. In the first position he was responsible for training employees in these procedures and in the second responsible for ensuring that they were trained.[46] He obviously had a very good knowledge of the training undertaken by employees.  He gave his evidence in a convincing way. I detected no apparent bias to his employer.
  1. The isolation, tag and lock out procedures are critical to the safe operation of QAL’s plant.[47] Mr Kennedy had been employed at the QAL site for three years by the time of the subject accident. He had been promoted. He had both blue lock and local tag out competencies. Mr Muller said that this required training in both theory and practice.[48] Mr Kennedy had been trained how to isolate pipes and tested on the relevant procedures annually.[49] I am quite confident that he could not have achieved those competencies or obtained his promotion if he had not demonstrated that he was thoroughly familiar with the procedures. And it would be surprising to say the least if he had not been involved in one way or another with the breaking into potentially energised pipework on numerous occasions after three years in that section. That was Mr Rigby’s experience.[50]
  1. I prefer Mr Muller’s evidence.

The Training

  1. Mr Muller explained the approach that ought to have been taken here. The worker shuts the suction valve and opens the drain leg by removing the cap. The worker uses a probe to probe the drain leg to get the flow. It is used in every instance. He then opens the suction valve to witness the flow. Once the worker has a flow he shuts off the valve. The flow should stop. If so he has proved isolation.[51] The worker can then hang the tags indicating that isolation has been proved. If no flow, then there is no isolation.
  1. Mr Rigby’s evidence in chief was to the same effect.[52] While Mr Rigby agreed with a series of propositions in cross examination that had the effect of undermining his earlier evidence I am quite sure that he did not intend to abandon what he had said He simply did not follow the effect of the cross examination. A Mr Brodie was called. He is a superintendent at the QAL plant but in a different section – clarification. He too gave evidence of the approach to proving drainage in accord with that of Mr Muller and Mr Rigby.[53]
  1. The striking thing about Mr Kennedy’s approach is that he did nothing to prove isolation. That seems self-evident to me. Certainly Mr Muller was of that view.[54] Mr Kennedy simply turned off the suction valve and then opened the pipe. He claimed that he should break into the pipe “to prove drainage”.[55] That was not in accordance with his training – a worker only breaks into a pipe potentially energised when he has proved that it is isolated. That is the whole point. To do otherwise is to risk disaster.
  1. Mr Kennedy maintained that it was in his discretion as to whether he used a probe to prove isolation. He asserted that he would use a probe if “it was a valid piece of pipework that required probing”.[56] What the distinguishing feature might be that made a pipe “valid” or not he could not explain. The crucial question on his account was what training he had been given to distinguish one pipe from another so far as the need to probe was concerned. He could not satisfactorily answer that question.[57]
  1. I am quite confident that Mr Kennedy knew of the use that ought to have been made of the probe. It is clearly set out in the blue tagging procedure.[58] The precise situation that confronted him was set out in the power point for blue tagger training and it expressly required that “the drain valve [ie the drain leg] shall be open and probed”.[59] Mr Muller explained that the probe was used on every occasion. Mr Rigby said that he had worked with Mr Kennedy many times and had seen him use a probe to prove isolation on numerous occasions.[60] Mr Kennedy’s own evidence was that he had seen a probe used a few days before the subject incident on pipework located adjacent to the area where he was hurt.[61]
  1. Mr Kennedy’s explanation for his approach centred on the orange tag procedure. He said that the tag indicated where a person is to break into a piece of equipment.[62] While that is true it is quite clear that his training went further than that.
  1. The orange tag procedure was set out in a document, Exhibit 18. Mr Kennedy said that he had not seen that document but had seen power points based on it. The power point associated with the blue tagger instruction included a section on the use of the orange tag. The power point reads: “If isolation has not been proven, the Orange tag cannot be hung.”[63]
  1. Exhibit 18 says at paragraph 1.0 under the heading “Purpose”: “To clearly identify the equipment to be worked on within an isolated system.”[64]
  1. At paragraph 2.0 under the heading “Scope” the document reads: “…the blue personal tagger shall … be satisfied the system is at zero energy where the orange tag is hung by itself before opening the system. The document went on:

“This promotes the culture where:

-People clearly understand that they need an Orange tag to break open … any isolated system…”[65]

  1. Consistently with those instructions the blue tagger power point listed the following matters:[66]

-Check validity of the Orange tag before opening up isolated system.

-Check the isolated system for zero stored energy where the Orange tag is hung.[67]

  1. I am quite confident that Mr Kennedy had been taught in accordance with this document. It was fundamental. The Orange Tag procedure only became relevant after isolation had been proved and not before. Once isolation had been proved the Orange tag could be hung and that to indicate precisely where the work was to be done.
  1. Mr Kennedy claimed that his discretion to not follow the above steps to prove isolation arose because of the instruction, which forms part of the Orange Tag procedure, that related to the “1.1 meter rule or 100 litres of liquor”. He said that “the isolation started from [the] suction valve and went down to the flange”[68] – a distance of less than 1.1 meters and the “head” being less than 100 litres of caustic.
  1. What Mr Kennedy ignores is that the instruction, which is set out in the blue tagger power point,[69] relates to “stored energy present in an isolated system”. There is no relaxing of the requirement to first prove isolation.[70] The orange tag procedure applies to the situation of a worker confronted with a system that he is satisfied is isolated but which contains “stored energy”. As well, when confronted with that situation, he was not permitted to hang an Orange tag on its own. If the stored energy was under 1.1 meters or under 100 litres then the worker was entitled to hang an Orange tag but together with a Yellow tag. The Yellow tag identified what stored energy was present in the system. But that had nothing to do with the situation confronting Mr Kennedy. He did not, and could not in accordance with his instructions, hang a yellow tag.
  1. Until Mr Kennedy proved isolation the potential head of liquor was that contained in the SRUF tank. It well exceeded 1.1 meters or 100 litres.
  1. Mr Kennedy made two assumptions that were not warranted. First, he assumed that the valve would be effective so that the only process to which he would be exposed would be that amount left in the vertical section of the pipe between the suction and the blind. Secondly, he assumed that there was no blockage, but without doing anything to ensure that was so. He was well aware that he had to be vigilant to ensure that any lack of flow was not due to blockages.[71]
  1. The matter is complicated by the discrepancy between the evidence of the witnesses Muller and Rigby and what was put to Mr Kennedy. Each said that they would open the suction valve to witness the flow through the drain leg and then turn it off to prove the effectiveness of the valve. I can understand why. That was not put to Mr Kennedy presumably because counsel either did not understand his instructions or decided to cross examine only on what appeared in the power point. That decision deprived Mr Kennedy of the chance to answer the point, but it is not apparent what answer he could give. And it was argued that it raises the prospect that while experienced employees understood the basics that applied to this pipework Mr Kennedy had not, for some reason, been taught sufficiently well to understand what he was to do.
  1. Neither witness claimed to have taught Mr Kennedy directly nor was any witness called who could make that claim. Mr Deaves, who appeared for QAL, said in his closing submissions that the trial may not have been needed if QAL had been able to call such a witness. I do not know what the difficulty was, only that counsel told me that there was a difficulty.
  1. The precise procedure the witnesses spoke of does not appear in any document. The absence from the written instructions is perfectly explicable. The particular approach that was required depended on the pipework in question. The QAL plant is “complex” with “a vast array of pipes”.[72] The documents are intended for class room use where the principles are taught. They do not relate to any particular pipe. The practical application is taught in the field[73] and by observation of more senior employees. 
  1. As I have said I am quite sure that Mr Kennedy would have witnessed the opening of potentially energised pipework on many occasions after three years in QAL’s employment. His basic case was that this pipe was more complex or different from any he had previously had experience with. It did not seem to me that this work was in any way complex. That impression was confirmed by Mr Muller’s evidence that the pipework in question was “a very basic system in digestion”.[74] Indeed Mr Muller made plain that this system was considered too simple on which to train taggers – a more complex tri-pump system would be used.[75] I asked Mr Muller about the complexity of the task:

“So in the course of that three and a half years, in the course of that training that he had to have done to get the level he was at, how would you rate this job that he had to do on this day as within or without his competence?  Where is it ranked?  Is it a difficult job?It is a very noncomplex job.  I can sit here and confidently say that an operator at QAL, six months of experience, I could put them there to do that job.”[76]

  1. I am satisfied that Mr Kennedy had been taught the appropriate procedures. The simplicity of the task meets the argument that he required supervision. Why he departed from the procedures that he had, I am sure, repeatedly observed and been taught is now unknown. It may be that he took a short cut. It may be that he simply did not think it through.
  1. QAL argues that the fact that he did not hang the Orange tag is indicative that he knew that he had not proved isolation. I do not think that follows. While his failure to hang the orange tag may be explicable on the ground that it would have been in his way when carrying out the work that does not explain his failure to hang the tag when he left the scene for “smoko”. He clearly should have.[77] But I do not think that failure proves that Mr Kennedy was conscious that he had not proved isolation. The premise is that in not hanging the tag Mr Kennedy was following his instructions not to do so. But the defendant’s case is that Mr Kennedy was, up and until then, not following his instructions.  Why reverse the premise? Why assume he was following his instructions at the later point in time but not the earlier?
  1. This failure to hang the tag is as consistent with a lack of thought as any other theory.
  1. I turn to the question in issue.

Relevant Principles – Contributory Negligence

  1. The claim is brought both at common law and pursuant to statute – s 305H of the Workers’ Compensation and Rehabilitation Act 2003 (Qld). It is trite law that the onus lies on the employer to establish contributory negligence. It has been held that the same principle applies under the statute: Kemp Meats Pty Ltd v Tompkins [2014] QCA 125 at [6] per Holmes JA, as her Honour then was.
  1. The relevant principles to apply at common law were explained in Bankstown Foundry Pty Ltd v Braistina[78] by Mason, Wilson and Dawson JJ:

“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) 59 ALJR 492 at 493–4; 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 (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42–9 and Broadhurst v Millman [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.’”

  1. As those reasons explain, in judging an injured worker’s conduct it is important to bring into account that it is the employer who has failed to use reasonable care to provide a safe system of work thereby exposing the plaintiff to an unnecessary risk of injury. There is a heavy obligation on an employer. Mason J explained why in speaking of the non-delegable duty of care owed by an employer to an employee in Kondis v State Transport Authority:

“The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer’s provision and judgment in relation to these matters [with the] consequence … in these relevant respects the employee’s safety is in the hands of the employer; … [i]f [the employer] requires his employee to work according to an unsafe system he should bear the consequences”[80]

  1. It was not contended that any different principle applies to the claim under the statute. Section 305H provides, so far as is relevant:

“(1)A court may make a finding of contributory negligence if the worker relevantly—

(a)failed to comply, so far as was practicable, with instructions given by the worker's employer for the health and safety of the worker or other persons; or

(c)failed at the material time to use, so far as was practicable, anything provided that was designed to reduce the worker's exposure to risk of injury; or

(f)undertook an activity involving obvious risk or failed, at the material time, so far as was practicable, to take account of obvious risk; …

(2)Subsection (1) does not limit the discretion of a court to make a finding of contributory negligence in any other circumstances.

(3)Without limiting subsection (2), subsection (1)(f) does not limit the discretion of a court to make a finding of contributory negligence if the worker—

(a)undertook an activity involving risk that was less than obvious; or

(b)failed, at the material time, so far as was practicable, to take account of risk that was less than obvious.”

Discussion

  1. The crucial findings then are these:
  1. The employer failed to ensure that there was an adequate system of marking the valves to ensure that an operator knew when they were opening or closing them;
  1. Mr Kennedy had been adequately trained. He failed to follow his instructions in proving isolation of the system. He had no excuse for doing so. That involved a significant departure from safety procedures;
  1. It seems probable that there was a blockage below the suction valve and above the blind. Mr Kennedy’s description of the location of the noise that he heard just before the sudden outflow that injured him – at about his shoulder height as he knelt in front of the pipe – suggests the blockage was above the drain leg. It is not possible to be more precise;
  1. Mr Kennedy let the pipe drain before completely opening the blind and that removed the contents from below the blockage;
  1. There is no suggestion that the valve was faulty – so if it had been closed it should have worked to isolate the SRUF tank;
  1. Had Mr Kennedy followed his instructions and training then his mistake about the valve would have had no operative effect. The system was intended to identify a valve that did not do what was expected – whether through a mechanical fault or operator error.
  1. I am satisfied that the QAL has discharged its onus. Mr Kennedy’s actions went well beyond “mere inadvertence, inattention or misjudgement”. Subsections 305H(a), (c) and (f) of the statute are engaged and permit a finding. The question then is what apportionment is appropriate.
  1. That depends to a significant degree on the causative effect of the departure from the standard expected.
  1. Ms Heyworth-Smith, counsel for Mr Kennedy, argued that the real problem lay with the inadequacy of the employer’s system. The difficulty with that argument is the point made above at (f) – the employer’s system was intended to cater for just such a mistake. Had Mr Kennedy done as he had been taught then the open valve would have been identified and the work not undertaken.
  1. Ms Heyworth-Smith submitted that the case was on all fours with Hughes v South Australian Harbours Board [1951] SASR 129, a single judge decision from the early days of the apportionment legislation. There an electrical fitter was required to work on a motor that had been incorrectly wired. He had no reason to suspect the defect. He was severely injured in carrying out his work in the usual way as the motor was “live”. He could have switched off the power at the main switch and so avoided all risk of injury from that source. He was held not to have been guilty of contributory negligence.  The judgment spoke of the “dominant or effective cause” of the injury being the employer’s default. That language is not used in modern cases and is a throwback to the long abandoned “last opportunity rule”. The crucial difference on the facts is that the possibility of a valve not being effective was at the heart of QAL’s system. That was one of the very risks that the whole system was designed to detect and guard against. The effect of Mr Kennedy’s failure to follow that system was to expose himself to the serious risk of harm that eventuated.
  1. Had Mr Kennedy followed his instructions he should have appreciated that something was wrong. Had he opened the flushing valve and used the probe then the probabilities favour a dislodgment of the blockage. I say that because the amount of force used by Mr Kennedy in dislodging the blind does not seem to have been particularly great.[81] It is evident that the use of the probe usually was found to be sufficient to disturb any blockages. I see no reason why dislodgment should not have occurred here. With dislodgment of the blockage Mr Kennedy would have discovered the open suction valve.
  1. Conversely if little or no material emerged on opening and probing the flushing valve then he should have realised that he had not proved isolation. He should have appreciated that the lack of material may have been due to a blockage. He was well aware that he had to be on the lookout for blockages. As Mr Muller put it “alarm bells are ringing”.[82] Mr Kennedy had been taught to seek assistance of more senior taggers and supervisors if not satisfied that he had proved isolation. He could have done that. Or he could then have reversed the position of the suction valve, opened the flushing valve and see what emerged. As it happened he would have closed the valve and nothing should have emerged. Again he should not have been satisfied that he had proved isolation – he needed to witness a flow. He should then have probably called for assistance. He knew Mr Rigby was not far away. 
  1. In my view Mr Kennedy’s departure from the standards expected of a reasonable worker was substantial and the causative effect on the occurrence of his injury very significant.
  1. Bearing in mind the heavy onus on the employer to provide a safe system of work I judge the appropriate apportionment to be 50/50.
  1. I turn then to the heads of loss.

QUANTUM

  1. The Defence pleads that a claim is made for injuries that are not the subject of the Notice of Assessment. An injured worker can only claim for injuries that have been the subject of such a Notice: s 237(1)(a) of the Workers’ Compensation and Rehabilitation Act 2003 (the Act).
  1. The point was not argued at trial. The Notice of Assessment refers to “caustic burns to left foot” and “post-traumatic stress disorder in partial remission”. The only possible argument could be in relation to the claim for scarring and sensory sural nerve deficit in the left foot, both of which, if present, clearly have been the result of the caustic burn injury. I shall assume there is no statutory impediment to the claim.
  1. It is agreed that the claim is governed by the Act.[83] Schedule 12, table 2, of the Workers’ Compensation and Rehabilitation Regulation 2014 (“the Regulations”) applies to the quantification of the Plaintiff’s general damages, as the date of the injury was between 1 July 2011 and 30 June 2012.

Pain & Suffering

  1. It is not in dispute that Mr Kennedy suffered severe pain initially. What is in dispute is the extent of his recovery.
  1. Mr Kennedy had a difficult convalescence. The wound to the left ankle was debrided at Gladstone Hospital without anaesthetic. He was discharged after only one day in hospital but subsequently a wound developed. He was advised that a skin graft would be necessary. Mr Kennedy was admitted to the Royal Brisbane Hospital on 20 January 2012. While in hospital, he underwent two surgical procedures. The first was for the debridement of the wound. The second was to graft skin to his heal and ankle from a donor site on his left thigh. He describes the pain he experienced through this time as “absolutely excruciating”.[84] There were reports of symptoms consistent with neuropathic pain at that time.
  1. Mr Kennedy was mobilized on crutches initially. He says that it “took a good couple of months” after the skin graft surgery before he could walk properly. He attended for physiotherapy treatment and initially weekly check-ups at the RBWH. The weekly check-ups then became fortnightly and then monthly.
  1. Mr Kennedy was noted to be suffering anxiety when hospitalised. He suffered from flashbacks and nightmares. He attended on psychologists for treatment. A diagnosis of post-traumatic stress disorder was made. He says that he was easily startled, scared to sleep, aggressive, and hyper vigilant.
  1. Mr Kennedy commenced a graduated return to work around May 2012 performing office duties. He returned to full time duties around November 2012. At his request and because of his anxiety, he was assigned to work away from the digestion area. He commenced at the calcination area and has continued there. He reports that his anxiety levels increased with the consequent exposure to pipes and hot caustic solutions. As well he complains of continuing physical discomfort brought on by long hours on his feet. He can walk up to 15 kilometres in a shift.
  1. Mr Kennedy reports several problems. He has a constant aching or throbbing in the ankle. He suffers irritation of the burn site with blisters. He reports a sharp shooting pain from the burn site when irritated by work boots and a “stretching/burning sensation” in the left foot that comes on about half way through a shift. The worst, he says, is the nerve or electrical pain that I have described earlier. He has trouble with footwear. He has had periods off work because of problems with blisters and soreness in the scarred area. New work boots are being trialled.
  1. The flash-backs and nightmares Mr Kennedy says are now occurring about three times a week. He says that he “hates and fears” QAL’s workplace. He “goes through hell” in maintaining his employment because he sees that he has little choice.
  1. Mr Kennedy reports problems with his relationship with his children. He is short tempered and unable to join in activities. He says that he has given up his martial arts and dirt bike riding.
  1. QAL points out that Mr Kennedy has had no treatment since his statutory claim was finalised. He has taken no prescription medication since May 2012. He was on full duties by the end of 2012 and remained on such duties until January 2015. Since then he has been on restricted duties save for two weeks off work in March and a short period in August. He has declined to participate in a pain management programme funded by WorkCover Queensland. QAL argues that given the lack of independent proof or of any report to medical practitioners Mr Kennedy should not be accepted in his claims that he takes significant quantities of non-prescription medication.
  1. On 7 June 2013 the Medical Assessment Tribunal determined that the Plaintiff had a permanent impairment in the nature of a post traumatic stress disorder that was in partial remission. The degree of impairment attributed to this disorder was 5%.
  1. On 13 August 2013 the Disfigurement Assessment Tribunal determined that the degree of permanent impairment resulting from the disfigurement of the Plaintiff was 12%.
  1. Dr Tadros has diagnosed retro-calcaneal neuropathic pain following a chemical burn. Dr Tadros opined that the neuropathic pain and disability will be ongoing and permanent. He assessed a 10% whole person impairment for disfigurement related to scarring over the calcaneum and a sensory sural nerve deficit adding 3%. Using the combined values this equated to a total and permanent impairment of 12%.
  1. Dr Tadros suggested five modalities of treatment:
  1. attendance upon a pain physician to help co-ordinate pharmacological intervention and rehabilitative management;
  1. a comprehensive multi-disciplinary pain management program;
  1. anti-neuropathic medication (Pregabalin and/or Amitriptyline) with the dose slowly titrated up;
  1. a Biers block or serial nerve block; and
  1. a spinal cord stimulator.
  1. Mr Kennedy was seen by a psychiatrist a Dr Lockwood. She diagnosed both post traumatic stress disorder and historically a major depressive episode in 2012. She thought that further psychological therapy for around 3 to 6 months would assist together with further anti-depressant medication. Dr Lockwood’s prognosis was “fair”, but that this position could be improved by further treatment.
  1. Dr Lockwood was of the view that the post traumatic stress disorder (PTSD) which had been chronic and severe was now chronic and mild. At the time of her report Mr Kennedy met the diagnostic criteria of an adjustment disorder with mixed anxiety and depressed mood, which was mild and chronic. She was also of the view that he had a chronic pain disorder associated with a medical condition. Further treatment should be beneficial.

Conclusion

  1. The difficulty in the assessment is in determining the extent to which Mr Kennedy is a reliable reporter. That of course impacts on the various diagnoses and assessments of disability.
  1. I have set out earlier in these reasons a brief summary of Mr Kennedy’s activities and his presentation on the video. As I have mentioned, Dr Tadros’ view is that Mr Kennedy’s presentation on the video and his level of activities are not consistent with his diagnosis.
  1. My impression is that Mr Kennedy is prone to exaggerate. That he should have continuing symptoms to some degree is entirely to be expected and indeed not contested. His burn injury was a serious one. To an extent he is supported by Ms Poggi, particularly in terms of his psychiatric adjustment or lack of adjustment. While his involvement in the activities of training to be a paramedic and with the Rural Fire Brigade are to be commended they do tend to suggest that he is far from crippled by his condition – mentally or physically. The lack of any significant medication or treatment confirms that view.
  1. I am satisfied that the various percentage assessments overstate the reality. However there is plainly ongoing problems with irritation caused by work boots. There is probably a degree of discomfort generally. There is significant disfigurement from scarring. There previously existed a reasonably serious psychiatric reaction to the subject accident and consequent injury, as diagnosed, but which now is largely in remission. There is an impairment to his earning capacity. The need for the serial nerve block and spinal cord stimulator suggested by Dr Tadros is not made out.

General Damages

  1. General damages are required to be assessed in accordance with Schedule 9 of the Regulations. Part 2 of Schedule 8 describes how Schedule 9 is to be applied.
  1. Burn injuries are required to be assessed under Part 8 of Schedule 9 of the Regulations. The Injury Scale Value (ISV) for a burn injury “must be assessed having regard to the item of the schedule that -

(a) relates to the part of the body affected by the burn injury; and

(b) is for an injury that has a similar level of adverse impact to the burn injury.”

  1. The commentary in Part 8 provides:

• In burns cases, the ISV for an injury to a part of the body causing functional impairment will generally be at or near the top of the range for an injury to that part of the body.

• In serious burns cases, the effects of scarring are more comprehensive and less able to be remedied than the effects of scarring from other causes.

  1. Mr Kennedy submits that he has multiple injuries, namely the psychiatric conditions of PTSD, the major depressive disorder and now adjustment disorder, and the left foot injury; that the left foot injury is the dominant injury; that the left foot injury is properly categorised as falling into either Item 146 (“extreme foot injury” - ISV range of 13 to 25) or Item 147 (“serious foot injury” – ISV range of 9 to 12); and because of the multiplicity of injuries there should be an uplift in the maximum dominant ISV of 25%. The appropriate ISV, it is said, is 31.
  1. QAL contends for an ISV of 10. It accepts that the dominant injury is that to the left foot. QAL submits that the injury falls into the category of a “moderate foot injury” under Item 148 (ISV range of 4 to 8). The psychiatric conditions should be assessed as within Item 12 – “moderate mental disorder” – with an ISV range of 2 to 10. QAL “uplifts” the maximum dominant ISV of 8 by 25%. It points out that the Regulations provide that the uplift should be rarely more than 25%: s 4(3) of Part 2 of Schedule 8.
  1. I am satisfied that Item 146 does not apply. The pre-condition is “permanent and severe pain or very serious permanent disability” and the example given is of a degree of permanent impairment of 15% or above. Taking Dr Tadros’ assessment at its highest the impairment is not 15%. None of those conditions apply.
  1. Item 147 provides an example of a severe foot injury as: “A severe midfoot deformity causing a DPI of 8%.”  The example of a moderate foot injury given in Item 148 is: “A displaced metatarsal fracture causing permanent deformity, with ongoing symptoms of minor severity, for example, a limp that does not prevent the injured worker engaging in most daily activities.” Mr Kennedy does engage in “most daily activities” albeit with some restrictions to his leisure pursuits. There is no cause to doubt Dr Tadros’ assessment of a 10% whole person impairment for disfigurement related to scarring over the calcaneum. Scarring is a serious problem and causes Mr Kennedy most of his trouble now. The extent to which there are significant problems arising from the nerve damage is more problematical. I think that Mr Kennedy’s left foot injury falls into Item 147.
  1. Dr Lockwood’s assessment of a 6% PIRS rating suggest that the psychiatric condition is in the moderate range as QAL submits. Item 12 provides as an example: “A mental disorder with a PIRS rating between 4% and 10%.”
  1. I assess an ISV of 15 – taking the maximum dominant ISV of 12 and uplifting to allow for the psychiatric injury.
  1. The assessment of damages is therefore $21,800.[85]

Past Economic Loss

  1. Mr Kennedy seeks $86,452.12 under this head of loss. QAL contends for $24,689.47 being the WorkCover refund applicable to lost wages and an unidentified amount for the lost chance of greater earnings. The dispute turns largely on the amount that ought to be allowed for the lost opportunity of taking up employment in Western Australia. The arguments on each side proceeded on the assumption that Mr Kennedy’s income from QAL has not suffered as a result of his injury.
  1. It is common ground that prior to the accident Mr Kennedy applied for employment with FQM Australia Nickel Pty Ltd (“FQM”) based in Ravensthorpe in Western Australia. He underwent the pre-employment medical on 13 January 2012, two days prior to the subject accident. On 3 February 2012 Mr Kennedy was formally offered a position as a process shift technician-operator. He was unable to take up the position due to his injury. The commencement date in the formal offer was 3 April 2012.[86] There is a debate as to the start date. Mr Kennedy contends for a start on 1 March. He says that he received notice of the availability of employment in early February and that he would have immediately given four weeks’ notice to QAL and so taken up employment on 1 March.[87] There is no evidence that I can see that he had any job offer to take up at that date. The documents tendered do show that 3 April was considered by FQM to be an “amended start date” and one determined on 3 February[88] hence implying that some other date was initially considered. It seems clear that Mr Kennedy communicated the fact of his injury on 3 February and that communication prompted the sending of the formal offer of employment. In that state of the evidence all that can be said is that it was a possibility that the start date may have been a month earlier than 3 April.
  1. QAL accepts that it was probable that Mr Kennedy would have taken up that employment but disputes the assumption that it was certain that he would have stayed. It is necessary to consider the potential loss and the contingencies.
  1. The parties have been unable to agree on the amount that ought to be brought into account from the notional earnings Mr Kennedy would have earned with FQM. QAL argues that two components of the FQM salary package should be disregarded – a commute allowance of $10,000 and a medical insurance allowance of $3,000.
  1. The commute allowance is paid to subsidise the cost of workers travelling to see their families on days off. Ravensthorpe is located 570 kilometres south east of Perth and the nickel operation 35 kilometres from Ravensthorpe. There is no compulsion to spend the allowance – it is a matter for the worker. Mr Kennedy said that his intention was to take up the position, that he expected that Ms Poggi and the children would travel to Western Australia and live in Perth, and he would travel there to see them when his shifts allowed. There is no precise evidence but it is probable that the commute allowance would be used up in travel costs to see the family if this plan eventuated.
  1. In my view the commute allowance is not to be deducted from the potential earnings. The general principle is that there must be an adjustment for the outgoings “necessary for the realization of [the earning] capacity which would have been incurred had the capacity been unaffected”: Sharman v Evans (1977) 138 CLR 563 at 577 per Gibbs CJ and Stephen J. Typical items of expense include the cost of transport to and from work, or the cost of special clothing or tools. The expense here was certainly not in that category. It was an entirely personal, discretionary expenditure related to Mr Kennedy’s amenity of life. But even if the expense of getting to and from Perth to see the family be seen as a necessary prerequisite for Mr Kennedy to be induced to take up this position the amount is not to be deducted. So much follows from the decision of the High Court in Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485. The plurality (Dawson, Toohey, Gaudron and Gummow JJ) there said:

However, outgoings which are deducted for the purpose of calculating economic loss are those which are necessarily incurred in or in connection with the employment or undertaking by which earning capacity is realised, not those which are incurred, even as a "necessary prerequisite", merely to provide an opportunity to realise that capacity.”[89]

  1. Wynn was concerned with the deduction of child care expenses. It was held that even if it be necessary that such expenses be incurred to realise the earning capacity they should be ignored. They were held to be of a “private or domestic character”. The commute allowance is in the same class of expenditure.
  1. QAL argues that the medical insurance allowance ought to be excluded because QAL offers a similar subsidy to Mr Kennedy in his present employment. That does not mean the amount should be ignored. Rather it should be brought into account on both sides of the equation. I assume the figures I have been given do that.
  1. The potential earnings with FQM I assess at $276,490. I have arrived at that figure by adopting the calculations at paragraph 167 of Ms Heyworth-Smith’s outline but adjusting for three matters. First, I have taken the start date for the employment with FQM as 3 April not 1 March to accord with the offer of employment. Secondly, I have ignored the period up to 3 April as I assume Mr Kennedy’s earnings with QAL were unaffected in this time. Thirdly, I have brought the figures up to date by allowing a further 5 weeks potential earnings at $1,505 per week, the net income in Ms Heyworth-Smith’s table.
  1. The parties are agreed that the actual earnings at QAL are:
  1. From 3 March 2012 to 5 November 2015 - $234,578 including $24,779.60 reimbursed by WorkCover Queensland to QAL. If that amount is ignored the net earnings were $209,798.60.
  1. From 3 April 2012 to 5 November 2015 - $229,357.53 again including the reimbursed amount. Similarly if that amount is ignored the net earnings were $204,577.93.[90]
  1. As I follow the calculations what I have called “the reimbursed amount” is somewhat notional. Mr Kennedy did not receive WorkCover payments in lieu of wages when off work. Rather QAL paid him his normal wage and WorkCover reimbursed QAL. The amount paid by WorkCover to QAL was $32,762.67. Some part of that represents the income tax that Mr Kennedy would have been obliged to pay had he received it. Ms Heyworth-Smith has calculated what that amount ought to have been - $7,983.07 - and used only the “net” so derived for calculating the net earnings set out above. Assuming all that to be so the reimbursed amount needs to be deducted from the earnings. Mr Kennedy did not receive that sum. QAL did.
  1. The difference between the notional earnings from FQM and the actual earnings from QAL then is $47, 132.47. That is the value of the lost opportunity assuming a start date of 3 April 2012. QAL argues that there are various contingencies that ought to be brought into account which should have the effect of reducing this amount by 15%. The contingencies contended for are the possibility of Mr Kennedy not successfully completing his probationary period; of Ms Poggi deciding that she would not remain in Western Australia and so returning to Gladstone with the consequence that Mr Kennedy may also have returned to be with his children; and that an inference adverse to Mr Kennedy should be drawn because he has not re-applied for the position – the strength of his motivation to move is in issue.
  1. Ms Poggi had decided that she would support Mr Kennedy in his endeavours of setting up a life in WA. She proposed to travel there only after he had completed his probationary period. Hence it is clear that all parties recognised this was a risk to be surmounted. I think that the risk was small. And it is true that Ms Poggi may not have liked the life in WA. It certainly would have had its difficulties with Mr Kennedy living away from home for extended periods. However Ms Poggi made it clear that she thought it important to have the children’s father in their lives. In my judgment only a modest discount is called for. The time period is relatively short, Mr Kennedy says that he was not getting on with his immediate supervisor, and the income was better. It is perfectly understandable that Mr Kennedy did not seek to re-apply for the position given the difficulties that he has had. I draw no adverse inference.
  1. Those are the contingencies that were adverse to Mr Kennedy. A positive contingency was that he may have started a month earlier than I have assumed.
  1. I assess the loss of a chance of earning a higher income in the FQM employment as $45,880.[91]
  1. There needs to be a separate allowance for the amount paid by WorkCover to QAL in lieu of wages of $32,762.67.

Future Economic Loss

  1. Mr Kennedy claims $551,273.34 and QAL allows $100,000 as a global sum.
  1. To understand the arguments it is necessary to detail a little more specifically the physical difficulties that Mr Kennedy has had at his workplace.
  1. Mr Kennedy said that he had problems with the scarred area of his ankle and foot. It became irritated and broke down. His evidence was that after a time of seeking treatment from the plant medical staff he would see to the bandaging and padding of his left foot himself. Dr Hoskins, who runs the QAL Medical Centre and who I found to be an impressive witness, was sceptical of this but I see no reason not to accept Mr Kennedy’s account. It is common enough behaviour. Mr Kennedy said that the nurses at the clinic told him that his skin would “toughen up” but that has not come to pass and the skin remains fragile.
  1. On one occasion in January 2015 he attended at the clinic with an inflamed heel. The nurses had him seen by Dr Hoskins. Dr Hoskins thought that Mr Kennedy should have some limitations placed on his work. A series of certificates were issued. The first such certificate reads:

“13 January 2015 to 30 January 2015 – unable to wear safety boots other than 10 minutes at start and end of shift to access areas where he can work without boots, able to wear safety boots for 15 minutes every 2 hours to allow small outside tasks. Expected time to resumption of normal duties: will need to arrange bespoke safety boots.”

  1. Certificates in a similar vein followed through until the present time. Dr Hoskins determined that bespoke boots were needed. There have been difficulties with the supplier. By April 2015 Dr Hoskins was moved to note on the certificate:

“These restrictions are mandatory – the person is unable to do the full work of their role, even at a reduced pace.”

  1. The restrictions contemplated were to limit Mr Kennedy to office work until the orthotics had been sorted out.
  1. By June 2015 Dr Hoskins certified: “can wear boots for an hour at start and an hour at end of shift. Can wear boots for 15 minutes in every two hours otherwise.”
  1. By July 2015 the certificate provided:

“Will need to “wear in” his revised boots. No specific activity to avoid but to cease all walking for balance of day if any pain. To cease all walking for the balance of the day if any skin rubbing. MUST report any broken skin immediately. These restrictions are mandatory – the person is unable to do the full work of their role, even at a reduced pace. Details of other restrictions: reasonable chance he will be limited initially. No technical reason he can’t be on shift but I wouldn’t think it sensible.”

  1. By August 2015 Dr Hoskins certified:

“Can move to 12 hour shifts, whatever he is doing so far BUT NO MORE.”

  1. Mr Kennedy then went on annual leave and had jury duty. He returned to work on 5 October (that is after the trial had completed). He sought and obtained leave to re-open his case on 29 October to tender further documents evidencing the medical certificates issued and the sick leave taken since the end of the trial. I gather that in his time off work Mr Kennedy has not continued wearing the work boots. So they are not “worn in”. He has again been put off work. Most recently, despite needing time off work, he has not been given a certificate entitling him to sick leave.
  1. The documents tendered in the re-opening show that he has very little sick leave left – 17.8 hours or roughly two days’ worth. His anniversary date for his sick leave is 13 October – the start date of his employment. Thus he has a year to go with virtually no sick leave entitlements. The work boot issue is still to be resolved. He is very likely to lose income. He was not docked sick leave for the time he had off pre-trial, apparently through administrative error. So this threat to Mr Kennedy’s present earnings at QAL was not contemplated at the time Mr Kennedy initially closed his case. It is now a reality.
  1. The general tenor of Dr Hoskins’ evidence was that the problems with the bespoke boots should be sorted out in time. Mr Kennedy has to get used to the boots and adjustments may need to be made to precisely meet his problem spots. Dr Hoskins is clearly very experienced in occupational medicine. I accept his opinion. The probabilities are that if Mr Kennedy applies himself then he should get over the difficulties with irritation and blistering that have troubled him for the last 10 months. However he is vulnerable.
  1. Mr Kennedy’s case then is that but for the subject injury he would have taken up employment in Western Australia with FQM. The income there should be used as a base for his potential earnings, if he had not been injured, for his lifetime. In his injured state he argues that he cannot continue at QAL both because of the ongoing physical difficulties and because of the psychological problems that he has in maintaining his employment there. In respect of that latter argument he relies on the opinion of Dr Lockwood who said:

“I think that he has had a lot of trouble returning to his pre-accident position. He continues to be extremely fearful and to experience symptoms of Post-Traumatic Stress Disorder in the workplace even though he is working in a different area from that where he had the accident. This change of location has reduced his post-traumatic responses but not eradicated them. He continues to find that the workplace reminds him of the accident. He needs to now wear protective footwear as part of his work which aggravates his physical difficulties, causes him fatigue and thus contributes to him not working as effectively, and this in turn has led to his perception that he is being judged and openly criticized for requiring regular work breaks, which contributes to difficulties he is experiencing in this position. It is thus my opinion that his psychiatric injury though it has not prevented him from returning to this work, has made this work difficult for him, that his return to work has provided ongoing aggravation of some of the symptomatology associated with his psychiatric condition, and that ideally, alternative employment would be better for his mental health.”[92]

  1. I am satisfied that the major physical problems will be overcome in time. There will be ongoing discomfort. Obviously there is an interplay between the psychological issues Dr Lockwood spoke of and those physical problems. It is relevant that Mr Kennedy has persisted with his employment through the worst of his psychological problems. Nonetheless I can readily understand the continuing psychological difficulties of working at the plant where such a significant accident occurred. Mr Kennedy’s perception that he is being judged and openly criticized may reflect his psychiatric condition rather than reality but his perception is real enough for him.
  1. But Mr Kennedy’s future at QAL is by no means assured. Whether QAL will continue to carry Mr Kennedy if he takes, as he probably will, unpaid sick leave for any extended period is an unknown factor. QAL tendered its Enterprise Bargaining Agreement on the re-opening of the case. Under the agreement Mr Kennedy has an entitlement to “salary continuance benefits” for up to two years provided he meets certain conditions.[93] But it is by no means clear that he meets those conditions. Clause 20.4(c)(i) for example provides that the benefits are not payable “for any … injury which entitled the employee to any benefits under workers’ compensation… legislation…”. Clearly Mr Kennedy’s injury did result in just such an entitlement. It may be, as Mr Deaves for QAL argued, that the intent of the clause is to prevent “double dipping” so that a past entitlement will not be seen to exclude a future benefit. I am not convinced of that. What part the present award might play – a usual pre-condition to such an award being an entitlement to WorkCover benefits – was not explored. It might well prove the disqualifying feature.  I think that all that can be said is that any entitlement is not certain but a potentially relevant factor for Mr Kennedy to weigh up in determining his future.
  1. In my view Mr Kennedy could not be criticised as acting unreasonably if he chose to leave.
  1. Mr Kennedy has commenced re-training. He has in mind qualifying as a workplace trainer. It is submitted that he may require up to six years in retraining at minimal income. His income would be greatly less if he adopted that course and was successful – about $340 net per week less.[94] Some other possibilities have substantial incomes but the positions are sought after. Mr Johanson dealt with these in his report. Mr Kennedy may not be able to maintain his present employment in the meantime. If he leaves his present employment, or loses it, he will suffer a significant loss. The amount claimed of $665,000 reflects these various assumptions.[95] While the assumptions underpinning that assessment are possibilities, they are far from certainties. 
  1. QAL argues that the basic premise behind the plaintiff’s case is not made out – lifetime employment at a nickel mine in Western Australia. QAL points out:
  1. the three matters identified with respect to the calculation of past economic loss remain relevant;[96]
  1. Mr Kennedy led no evidence as to the longevity of the nickel mine;
  1. Mr Kennedy’s current earnings at QAL are $147.32 per week less than the earnings at FQM - it is inherently improbable that he “would choose to spend the rest of his working life living on the opposite side of the country to the rest of his family for less than [next] to $150.00 per week”.[97]
  1. I have dealt with (a) above. The second point is a valid one and justifies some discounting. As to the third point I agree that an assumption that Mr Kennedy would necessarily spend his life in another State far from his family and friends is an unlikely one. That may have been his future but it is far from certain. But as I have found, and as was conceded, it seems certain that, but for the injury, Mr Kennedy would have tried that life. He is still young – the potential future working life is approaching 40 years. The parties cannot agree on the basic arithmetic but the difference in wage is more like $250 per week. It is not an inconsiderable sum although if a significant part of that difference was spent on travel to and from the family home it would have tended to diminish the incentive to take up the work permanently.
  1. QAL also argue that there is no reliable evidence that Mr Kennedy suffers from any significant pain in his heel that would interfere with his ability to continue working for QAL as an Alumina Producer. I disagree to a point. I am satisfied that there is ongoing discomfort. That is what Dr Hopkins is grappling with. How stoical Mr Kennedy might be, particularly over a long period of time, is difficult to gauge. He has lasted this long and he might go on. Clearly financial security is important to him. His psychological problems have moderated. And once the bespoke boots are suitably adjusted he will have greater comfort. He may never leave QAL’s employment. Nonetheless, as I have said, Mr Kennedy could not be criticised if he did decide to leave that employment. But it is by no means certain that he will do so. As well his future there is not certain. His employer may tire of his absences. Another employer may not be so accommodating.
  1. There are many uncertainties. All that I can do is assess a global sum that reflects the various contingencies. The loss of earning capacity cannot be calculated by reference to a defined weekly loss. Section 306J of the Workers’ Compensation and Rehabilitation Act 2003 is relevant. It provides:

306J When earnings can not be precisely calculated

(1) This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.

(2) The court may only award damages if it is satisfied that the worker has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.

(3) If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.

(4) The limitation mentioned in section 306I(2) applies to an award of damages under this section.

  1. Subsection (4) is not relevant. I am satisfied that Mr Kennedy “has suffered or will suffer loss having regard to [his] age, work history, actual loss of earnings, [and] … permanent impairment”. There needs to be substantial discounting for the various contingencies mentioned. I am required to adopt the 5% discount tables.[98]
  1. In summary there are several significant difficulties in the way of the substantial award that Mr Kennedy seeks. The first is the assumption that Mr Kennedy should be accepted in all that he says. I don’t accept that his problems are as serious as he maintains.
  1. Secondly, the underlying assumption is that he will not stay at QAL. It is obviously there that his financial future is secure. That has been important to him to date. I am far from persuaded that he will give that up. He has effectively seen off the worst of his problems. The difficulties with his work boots, I think, will very likely be resolved if he perseveres. His psychological difficulties are in remission and can be further relieved, at least to a degree, with treatment. Mr Kennedy claims for such treatment and I will allow some amount. QAL may tire of him but there is a deal of force in the submission that it has been an accommodating employer to date. If he does stay at QAL his loss is, at worst, along the lines of $250 per week – about $190,000 on the 5% discount tables and allowing for contingencies of 15%.
  1. Thirdly, that calculation assumes a life time employment at the nickel mine in Western Australia or the equivalent, which is much less certain than the 15% contingency I have just mentioned. That can be balanced to some extent against the risk of losing income more immediately because of his lack of sick leave. A week off work will cost him $1,255. Mr Kennedy’s loss could start as early next week if he continues on restricted duties. Even so, on this scenario, the loss is much closer to the amount that QAL advances.
  1. Nor should sight be lost of the fact that Mr Kennedy continues in his pre-accident employment at the same income that he would have received had no injury occurred (subject to his adjustment to his boots) nearly four years after the event, with the worst of his physical and psychological troubles behind him.
  1. In determining whether hypothetical future events might occur (or might have occurred) I am required to assess the degree of probability of that event occurring and adjust the award of damages to reflect the degree of probability: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638.
  1. Adopting those principles and doing the best I can with many uncertainties I assess the loss at $250,000.

Future Cost of Pedorthic Footwear

  1. Mr Kennedy seeks $79,991.99 for the future cost of obtaining custom made footwear – both work boots and recreational shoes. QAL submits that there should be no allowance at all. I am not sure why.
  1. The principal problem that Mr Kennedy has is obtaining footwear that does not aggravate the scarred area. He has been on restricted duties for much of this year at the urging of Dr Hoskins, QAL’s very experienced occupational medical expert, because of the problem with his work boots. Mr Kennedy has been assessed by a Mr Ernest Tye, a pedorthist whose expertise is in the making and fitting of such footwear, and he supports the need for it. He was not challenged. Mr Kennedy was not challenged, directly at least, in his claim that he predominantly wears thongs outside of work as commercially available footwear aggravates the burn affected areas on his left ankle.[99] Mr Tye says that is not ideal. Protective footwear is usually needed in the sorts of occupation I would expect Mr Kennedy to follow.
  1. The cost of obtaining custom made boots and shoes is detailed in exhibit 37, the reports prepared by Mr Tye. My reading of the exhibit is that a new pair of custom made work boots will cost $2,600. They will need to be replaced every 12 months or perhaps more often if exposed to chemicals, such as can occur at QAL’s plant. Recreational shoes are not so expensive – there is a reference to modification costs of $300. Recreational boots cost more – the $300 plus $870 for the orthosis. Mr Tye suggests two pair of recreational shoes every 18 months. QAL argues that there is no medical evidence of any necessity to obtain recreational shoes. Mr Kennedy’s evidence of his difficulties in wearing shoes at all I think is sufficient. What can a practitioner add? Mr Tye has the significant experience and he recommended them.
  1. Some discounting should be allowed for contingencies and perhaps lesser use as Mr Kennedy ages. I will allow $55,000.[100]

Future Treatment Costs

  1. Mr Kennedy claims the cost of various suggested treatments assessed at $46,500. QAL allows a global amount of $5,000.
  1. I have found that the more expensive treatment modalities suggested by Dr Tadros are not made out as Mr Kennedy’s presentation to Dr Tadros was not consistent with the evidence led and that presentation was fundamental to the diagnosis and perceived need.
  1. One form of treatment suggested by Dr Tadros was attendance at a pain management program at a cost in the order of $8,000.00 to $10,000.00. It seems that there is no disagreement about the efficacy of such a course. Mr Kennedy was offered such a course by WorkCover.[101]  It may well assist in him coping with the ongoing discomfort that I have found exists.
  1. The Plaintiff’s current treating general practitioner, Dr Ratnam Sivananthan, a psychologist, Mr Calcagini, and the psychiatrist, Dr Lockwood, all consider that the Plaintiff would benefit from ongoing psychological treatment. The amount claimed cost is modest - $960. Their views were not contested.
  1. There will be an ongoing need for adjustment to working boots. The orthotist suggested annual visits. Again the cost is a modest one - $1,470. It should be allowed.
  1. There is evidence that Mr Kennedy would benefit from consulting a dietician for weight management issues. He has put on a great deal of weight since the subject accident. Again the cost is a modest one - $300.
  1. Dr Lockwood considers that Mr Kennedy will need to consult his treating general practitioner to ensure his need for anti-depressant medication is monitored and assessed. It is not possible to be precise as to the likely future need. As well Mr Kennedy has not been diligent in pursuing treatment to date. I will allow $3,000.
  1. I assume that attendance at a Pain Clinic should ameliorate, at least to an extent, the need for a multiplicity of treatments.
  1. I will allow $14,730 under this head of loss.

Future Pharmaceutical Costs

  1. Mr Kennedy claims $10,000. Any allowance by QAL is in the $5,000 amount already mentioned.
  1. The claim relates to the cost of medications to assist with Mr Kennedy’s psychological condition and neuropathic pain. As to the latter I am not persuaded it is quite the problem that Dr Tadros had assumed when he gave his opinion that the medication would be needed and useful.
  1. It is said that it was Mr Kennedy’s uncontested evidence that he is interested in consuming any medication which may assist with the treatment of the symptoms he experiences as a result of his physical injuries and psychological condition. The problem is that Mr Kennedy was challenged as to his bona fides and successfully so to a degree. The reality is that Mr Kennedy has not taken prescription medication to any great extent for years.
  1. Another issue is the continuing need for medication once the various treatment modalities assumed above are undertaken.
  1. A modest global sum is justified. I will allow $4,500.

Future Educational Costs

  1. A claim is made for $15,000. Mr Kennedy is endeavouring to upgrade his qualifications in order to qualify to obtain alternative employment. It seems unlikely that he would have seen any need to do so but for the subject accident. Whether he will persist is unknown.
  1. There is an immediate cost of $3,000 to undertake a Certificate IV in Work Health. There is the probable need for further study at tertiary level to maximise his prospects. Mr Kennedy’s ability to cope with tertiary study is uncertain. Whether he would wish to undertake the effort is also uncertain. And I have no evidence as to the possible cost.
  1. I will allow $5,000 under this head.

 

Future travel expenses

  1. Mr Kennedy will incur the expense in obtaining at least modified footwear – he will need to travel to Brisbane annually for pedorthic assessments. It is likely that he will live at more remote provincial areas for the foreseeable future. It is also said that he will need to travel to study and obtain medical assistance and prescriptions. That is possible but not certain.
  1. I will allow $4,500.

Special Damages

  1. In addition to the statutory refunds to Medicare and WorkCover Mr Kennedy claims:
  • Medical expenses – $39.90
  • Travel expenses - $250
  • Pharmaceutical expenses - $1,000
  • Certificate IV in Health Care - $900
  • Cost of purchasing equipment from First Aid Services required to complete the Certificate IV in Health Care - $1,118.70
  • The extra cost incurred to purchase a pair of Nike shoes and Adidas Shoes, at a cost of $150.00 a pair, as opposed to the shoes he would normally purchase from Big W at a cost of $30.00 a pair - $240.00
  • The cost incurred to complete a Certificate II in Security Operations, certificate in cash-in-transit and certificate in the safe use of weapons - $2,240.
  1. I assume from the schedule in exhibit 66 that QAL allows about $480 of these claims. I don’t know which are accepted.
  1. The evidence relating to the claims for pharmaceutical and travel expenses is scant but I have no doubt that some expense has been incurred and the claims are relatively modest. I am doubtful of the validity of the claim for a pair of Nike shoes. I am satisfied the costs for retraining were reasonably incurred to meet a perceived need resulting from the subject injury.
  1. Of these claims I will allow $5,500.

Summary

  1. In summary, I assess the damages as follows:

General damages

$21,800.00

Past Economic Loss

$45,880.00

Loss of past superannuation benefits[102]

$4,243.90

Interest on past economic loss[103]

$3,129.47

Refund of weekly benefits (including Fox v Wood)

$32,762.67

Future Economic Loss

$250,000.00

Loss of future superannuation benefits[104]

$23,750.00

Future Cost of Pedorthic Footwear

$55,000.00

Future Treatment Costs

$14,730.00

Future Educational Expenses

$5,000.00

Future Travel Expenses

$4,500.00

Refunds to Medicare and WorkCover[105]

$20,012.22

Special damages (paid by the Plaintiff)

$5,500.00

Interest on special damages[106]

$305.14

Total Damages

$486,613.40

Less 50% contribution[107]

$243,306.70

Less refund to WorkCover

$52,244.79

Net Damages

$191,061.91

  1. There will be judgment for the plaintiff in the sum of $191,061.91
  1. I will hear from counsel as to costs.

Supplementary Reasons

  1. On 9 November 2015 I pronounced judgment for the plaintiff in the sum of $205,060.07.
  1. On 16 November 2015 the solicitors for the defendant wrote to my associate with the consent of the plaintiff’s solicitors (see exhibit 76). It was agreed between the parties that I had double counted the amount of the WorkCover payment in the calculation of past economic loss. The defendant wished to make an application under the slip rule (r 388 UCPR). The plaintiff did not object. The parties were content for me to decide the issue on the basis of the information in exhibit 76.
  1. On re-considering the matter raised I agreed that I had made an arithmetical error. I considered that it was appropriate to amend the judgment under the slip rule.
  1. Changes were required not only to the past economic loss calculation (see paragraph [145] above) but also consequential changes to interest and past loss of superannuation (see the summary in paragraph [202] above). The changes are reflected in the reasons that I now publish.
  1. I vacate the orders made on 9 November 2015 and now order:
  1. judgment for the plaintiff in the sum of $191,061.91
  1. that the plaintiff pay the costs of the defendant on the standard basis.

Footnotes

[1] Marked “2” on Exhibit 2.

[2] T1-31/32-45.

[3] A copy of the orange tag became Exhibit 4.

[4] T1-33/7-9.

[5] T1-33/11-12.

[6] T1-33/16.

[7] The position is marked “4” on Exhibit 2.

[8] T1-33/48 – 34/2.

[9] T1-34/16.

[10] T1-34/5-6.

[11] T1-35/17.

[12] T1-36/5-28.

[13] T1-38/40.

[14] T1-38/44.

[15] T1-39/3.

[16] T1-39/5.

[17] Mr Rigby: T2-87/12-20.

[18] T1-29/31.

[19] T1 -29/23-25.

[20] See Ex 3 for an example.

[21] T1-29/41.

[22] T2-84/5-23.

[23] See Exhibit 1 p 29 para 284.

[24] See the cross examination: T2-11/40 – 12/33. The true position seems to be: jury duty: 31 August to 14 September; annual leave: 14 September to 4 October – see Ex 61 entry for Monday August 17 2015.

[25] Exhibit 39.

[26] See T2-50/30.

[27] T2-50/33-38.

[28] T2-33/35.

[29] T2-56/12-25.

[30] T2-56/27-30.

[31] T2-34/15.

[32] T2-34/4.

[33] T2-58/34.

[34] T2-34/7.

[35] Exhibit 1.

[36] See Exhibit 40.

[37] T2-59/40.

[38] T3-40/26-39.

[39] T3-40/32.

[40] T3-41/25-26.

[41] T1-61/26-27; 1-65/25-26. See too Ex 43 – the power point slides for “Local Tagger Level 2 at p5: “Note: Proven Isolation is NOT Valve isolation”.

[42] For example see Exhibit 21 – the blue tag power point at p5; Exhibit 17 – the blue tag out procedure; T1-57/1-30.

[43] T2-119/15.

[44] T1-36/45-47.

[45] T1-61/37-45.

[46] T2-115/30-44.

[47] See exhibit 44 (The Tag Out Overview) at p 2.

[48] T2- 115/35-43.

[49] T2-115/47; and see the cross examination at T1-53/35 – 54/30.

[50] T2-90/15 – 91/5: once every rotation of four days.

[51] T2-116/35 – 117/25.

[52] T2-86/25-42; and in cross examination: 2-91/47 – 93/47.

[53] T3-49/40 – 52/30.

[54] T3-14/26.

[55] T1-33/17.

[56] T1-58/37.

[57] T1-59/15.

[58] See exhibit 17 - step 2 first dot point.

[59] Exhibit 21 at p17; and see the cross examination at T1-69/1-40.

[60] T2-91/15-25.

[61] T1-37/10-47; and see Exhibit 2 and the points marked 5A and 5B.

[62] T1-33/7.

[63] Exhibit 21 at p 13.

[64] My emphasis.

[65] My emphasis in each case.

[66] Ex 21 at p 14.

[67] My emphasis in each case. And see the evidence of Mr Muller: T2-120/25.

[68] T1-59/45.

[69] Exhibit 21 at p 15.

[70] And see Exhibit 18 at p 5 paragraph 7: “No Proven Drainage, No Orange Tag”.

[71] T1-61/5-25; 1-68/25.

[72] Exhibit 44 at p 2.

[73] For example see the evidence of Mr Muller: T3-7/13.

[74] T2-120/43.

[75] T3-9/25-31.

[76] T3-12/12-17.

[77] T3-15/40.

[78] (1986) 160 CLR 301 at p310-311.

[79] See s 10(1)(b) of the Law Reform Act 1995 for the Queensland analogue.

[80] (1984) 154 CLR 672 at 687–688.

[81] T1-35/14: “a bit of force”.

[82] T2-118/34.

[83] Reprint 6, current as at 1 January 2012.

[84] Exhibit 1 at para 107.

[85] Regulations Schedule 12, Table 2 Line 3: $13,300 + ((15-10 = 5) x $1700).

[86] Ex 5 at the fourth page of the exhibit. The start date was confirmed in the email of 7 February: see exhibit 7.

[87] See Exhibit 1 para 339 – 347.

[88] See Exhibit 6 an email of 3 February.

[89] At p 495.

[90] I have taken these figures from the exchange of correspondence that ensued between the parties following the application to re-open on 1 November and my enquiries about the discrepancies in the submissions. I shall mark the correspondence Exhibit 74 (letter from Murphy Schmidt to Dibbs Barker of 5 November 2015) and Exhibit 75 (reply from Dibbs Barker to Murphy Schmidt of 6 November 2015).

[91] I have adjusted the figure in the judgment initially published to the parties ($70,000) as a result of an application under the slip rule (r 388). The parties agreed on the necessary adjustment. I have reduced the calculated amount agreed between the parties of $47,132.47 by about 2.86% to accord with my original intent to allow a small discount to the calculated figure.

[92] Exhibit 52 at p34.

[93] See Exhibit 71 clause 20 at pp25 – 28.

[94] See the table in Exhibit 65A at para 181.

[95] See Exhibit 72 para 13.

[96] See [139] above.

[97] Exhibit 66 at p 11-12.

[98] Section 306L Workers’ Compensation and Rehabilitation Act 2003.

[99] Exhibit 1 at paras 188-192.

[100] $2,600 for work boots each 12 months over 37 years (multiplier 894) = $44,700. $1,470 for two pairs of recreational shoes each 18 months over 53 years (multiplier 998) = $18,808.

[101] See exhibit 55.

[102] At 9.25% of $45,880 of the past loss.

[103] At 1.9% of $45,880 x 3.59 yrs. The interest rate is required to be the Commonwealth Treasury Bond Rate as at June 2015 in accordance with section 306N of the Workers’ Compensation and Rehabilitation Act 2003.

[104] At 9.5% of future loss.

[105] I have adopted the figure advanced by Ms Heyworth-Smith. My own calculation differed by exactly $100 so I assume that one of us has made an arithmetical error. I could not see how Mr Deaves arrived at his figure - $21,020.37.

[106] $5,500 x 1.9% x 2.92 years.

[107] As to the point in the calculation where the apportionment is applied see Negric v Albion Scrap Steel Pty Ltd [1978] Qd R 362.

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Editorial Notes

  • Published Case Name:

    Kennedy v Queensland Alumina Limited

  • Shortened Case Name:

    Kennedy v Queensland Alumina Limited

  • MNC:

    [2015] QSC 317

  • Court:

    QSC

  • Judge(s):

    McMeekin J

  • Date:

    18 Nov 2015

Litigation History

Event Citation or File Date Notes
Primary Judgment [2015] QSC 317 18 Nov 2015 -
Appeal Determined (QCA) [2016] QCA 159 14 Jun 2016 -

Appeal Status

{solid} Appeal Determined (QCA)