- Notable Unreported Decision
- Appeal Determined (QCA)
SUPREME COURT OF QUEENSLAND
Kennedy v Queensland Alumina Limited  QCA 159
PAUL THOMAS KENNEDY
Appeal No 12749 of 2015
SC No 705 of 2014
Court of Appeal
General Civil Appeal
Supreme Court at Rockhampton –  QSC 317
14 June 2016
1 June 2016
Gotterson JA and Atkinson and Dalton JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made
Appeal dismissed with costs.
TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – GENERALLY – where the appellant was involved in a workplace accident when caustic solution came into contact with his left foot while breaking into pipework – where the appellant suffered physical injuries and post-traumatic stress disorder following the accident – where the respondent admitted liability at trial but claimed contributory negligence on the part of the appellant – where the trial judge came to an apportionment of 50 per cent contributory negligence on the part of the appellant – whether the trial judge erred in finding that the appellant was 50 per cent contributorily negligent
TORTS – NEGLIGENCE – PROOF OF NEGLIGENCE – WEIGHT AND CREDIBILITY OF EVIDENCE – where the trial judge found that the appellant’s evidence should be treated with considerable caution – whether the trial judge’s credit findings were justified
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – where the appellant alleged that the quantum award was too low – whether the trial judge erred in the assessment of damages
Law Reform Act 1995 (Qld), s 10(1)(b)
Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 306J(3)
Ballesteros v Chidlow & Anor  QCA 323, cited
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301;  HCA 20, distinguished
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Market Ltd (2008) 73 NSWLR 653;  NSWCA 206, cited
Reitano v Shearer & Anor  QCA 336, cited
C Heyworth-Smith QC, with H Blattman, for the appellant
G W Diehm QC, with D Callaghan, for the respondent
MurphySchmidt for the appellant
DibbsBarker for the respondent
- GOTTERSON JA: I agree with the order proposed by Dalton J and with the reasons given by her Honour.
- ATKINSON J: I agree with the reasons for judgment of Dalton J and with the order proposed by her Honour.
- DALTON J: This is an appeal in a personal injuries matter where the only issues before the primary judge were whether the appellant was contributorily negligent, and what the quantum of damages ought to be. The appellant challenges the finding that he was 50 per cent contributorily negligent, and says that the quantum award was too low.
- The appellant worked at an alumina refinery. He had worked there for three years, commencing as a level 1 producer in October 2008 and being promoted to a level 2 producer two years later. The accident occurred a year after that promotion. The appellant’s employment included attending to the pipework in the plant, which was described below as complex and consisting of a vast array of pipes.
- At about 10.30 one night the appellant was given the task of replacing a blind. A blind was described below as something the size of a dinner plate which could be put into a join in a pipe so that it acted to stop the flow of solution at that point. The appellant’s task was to take a blind out so that flow could resume along that particular pipe. The trial judge explains the task very well:
“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.
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 … [the SRUF 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. When closed it would prevent the caustic solution running along the drain leg.
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.” (footnote omitted).
- The trial judge described how the appellant went about breaking the pipe in question. The steps which he took did not isolate the flange from the tank of caustic solution, and as a result his left foot was burnt when he opened the flange.
“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.
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.
Mr Kennedy then completed an orange tag. 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.’ 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’.
Mr Kennedy said that his next step was to ‘break into the pipework to prove drainage.’ To do that he loosened three bolts on the flange at the base of the pipe where he intended to insert the blind. 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.’ He thought that the volume of liquor that emerged did so at a ‘steady pace’ and represented ‘the top of the suction through to the bottom of the flange’ 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.
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.’ 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.’” (footnotes omitted).
- The appellant pleaded 11 subparagraphs at paragraph 25 of the statement of claim. They were a mix of factual allegations and rolled up allegations of fact and law. I think in substance they were particulars of an allegation of breach of duty, although not in the usual form. They were followed by separate paragraphs alleging that, by the acts and omissions pleaded in paragraph 25, the respondent breached its duty to the appellant, and caused injury to him. Some subparagraphs were not apposite in view of the facts proved at trial – (b)(i), (f), (g), and others were at such a level of generality that they were virtually meaningless – (a), (e), (j) and (k). Disregarding those, the allegations made were that the open/closed switch on the SRUF valve was not clearly marked; the plaintiff was not aware of the potential dangers in performing his task, and was not adequately trained or instructed so as to enable him to perform it safely.
- The defence addressed all those paragraphs together – paragraph 13. This paragraph first repeated and relied on an earlier plea which denied that the SRUF valve had scale and welding obscuring the labels (O and C) designed to show whether it was open or closed. It admitted, “that the plaintiff suffered injuries due to the negligence and/or breach of contractual duty of the defendant”; admitted that a causal connection existed between its breach and the “alleged accident”, and then went on to plead that the plaintiff was an experienced process technician and trained in “Review, Isolation, Tag and Lockout procedure”. The paragraph continued that the appellant “failed to confirm isolation of the [caustic solution] from the SRUF pipe suction valve, contrary to his training” and that in the circumstances the appellant failed to take reasonable care for his own safety.
The scope of the controversy at trial
- The appellant’s training and experience, and his failure to isolate relevant pipework were squarely in issue. The primary judge found as a matter of fact that the open/closed switch on the SRUF valve was poorly marked and not visible to the appellant at night time, and that this was a breach of duty on the respondent’s part –  –  of the judgment below. However, that was denied on the defence, and repeated in paragraph 13. There was a difficult question as to what the respondent was admitting, in terms of factual allegations against it, by its admission of breach of duty. The primary judge explained:
“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.”
- In those circumstances, the primary judge was plainly correct to proceed as he did on the evidence before him as to what was the respondent’s breach of duty. He found it was the failure clearly to mark the SRUF valve switch. The appellant challenges this and says that the primary judge ought to have taken the admission of liability to mean that all the factual pleas in paragraph 25 were admitted. The difficulty with that submission is that the only factual pleas which had any substance to them were those concerning experience and training, and these were expressly denied. A large part of the trial was taken up with contested questions as to the appellant’s experience, competence and training.
- The appellant argued that the trial judge should have interpreted the plea at paragraph 25(d), “Failed to instruct the plaintiff, whether adequately or at all, how to perform the tasks required of him;” as meaning that the respondent ought to have instructed the appellant, on the occasion of allocating him the task of replacing the blind, how to perform that particular task. Then it is said that the trial judge ought to have found that this was admitted on the pleading, by the general admission, so that in performing the task of deciding what a just and equitable apportionment for contributory negligence was, the trial judge should have weighed this failure to instruct in the balance. The words of paragraph 25(d) do not complain of a specific lack of instruction a propos the task of replacing the blind, but are a more general plea of failure to instruct Mr Kennedy generally in “tasks”. That this is so is confirmed by the location of the plea between two very general pleas, and by way of contrast both with the plea at subparagraph (h) which complains of a failure to instruct the appellant in a safe method of replacing blinds (in general) and with paragraph 6(b) (ii) of the reply which pleads that a more senior employee was not required to check the appellant’s work in performing the particular task he was engaged upon while injured.
- In any case, the trial was run on the basis that the competence of the appellant to perform the task of replacing the blind was in issue, and considerable evidence was led as to this; his experience, his training, and the complexity or otherwise of the job. The respondent’s witnesses gave evidence that the job was a simple one, too simple to be used for training purposes, and that it was a task in which the appellant had been trained, qualified and re-tested annually, and must have been familiar with. No objection (say, based on irrelevance due to admissions made on the pleadings) was taken at any stage to this evidence which all comprehensively contradicted the idea that the respondent ought to have instructed the appellant on how to go about performing the particular task.
- Even if admissions are distinctly made on the pleadings, or in some other way during the interlocutory processes of a proceeding, a trial judge is not bound to disregard evidence which is led without objection, and which is contrary to the admissions. In those circumstances, the correct approach is to make determinations upon all the material – the admissions and the evidence: the parties are bound by their conduct of the case. In this instance, as explained above, there are no admissions distinctly made on the pleadings. There is nothing in grounds 3, 4 and 5 of the appeal.
- The respondent’s case was that the appellant was contributorily negligent because he did not prove isolation in accordance with his training before he broke the vertical pipe under the tank.
- The defendant pleaded that:
(d)says that, prior to the incident, the plaintiff:
(i)was an experienced process technician with 3 years’ experience;
(ii)was local tagger and blue-lock tag qualified in the Digestion mills area;
(iv)was regularly trained in the Review, Isolation, Tag and Lockout procedure and as recently as 1 February 2011;
(e)says that, at the time of the incident, the plaintiff:
(iii)had failed to confirm isolation of the liquor from the SRUF pipe suction valve, contrary to his training;
(f)says that, in the circumstances, the plaintiff was negligent, in breach of s 305H of the WCRA and failed to take reasonable care for his own safety and contributed to the circumstances of the injury by failing to adhere to the procedure in which he was trained.”
- There is nothing in the respondent’s pleaded case that there was any particular method which ought to have been used by the appellant to prove isolation, or that he had been trained to use to prove isolation. Isolation of a component of the plant’s pipework meant that it was isolated from the flow of caustic solution through it, so that it could be worked on, and that if necessary a pipe, located in the isolated part, could be broken. In respect of any particular configuration of pipework, there might be more than one way to isolate the part to be worked on, and more than one way to then prove isolation of that part. Proof of isolation meant that, having taken steps to isolate a component, further steps were undertaken to test whether the part was truly isolated before work began. Once an employee was trained, tested and qualified to isolate, and prove isolation, they were entrusted to break pipes. When they did so they would hang a tag on the system they had isolated. The colour of the tag denoted their level of qualification. The most basic tag was a blue tag. The appellant qualified to hang blue tags soon after he arrived. When he was promoted two years later he trained and qualified at a higher level – purple tags.
- The evidence as to training was that it was not specific to any piece of pipework, but gave an operator competence to work on the many different configurations of pipes across the plant – AB 213, and generally AB 220-224. That is, the operators were taught principles which were to be applied to any particular piece of pipework. This is no doubt because the plant contained so many different types of configurations of pipework – AB 229. The appellant acknowledged he understood this was the system – AB 61. The principles to be applied were taught in a classroom and there was then practical testing to see if the candidates had understood the principles and could apply them in the plant (field assessment). Mr Muller was a superintendent employed by the respondent. He had worked supervising isolation in the past and thus had a good knowledge of training as to isolation – AB 212. He said that before an operator was certified as competent, it was necessary that they demonstrate they could apply the principles as to isolation, and proving isolation, to the hardest configurations in the plant:
“Okay. And do you know whether or not the field assessment involved the …isolation for [the subject SRUF valve] pipe?---No. I can clearly say it wasn’t, and I know that for a fact, because…that is really one of the easiest ones. We pick the tri-pumps. We have a standard of about 10 and they are the hardest, if I could say, … we assess to the highest standard. Where the SRUF pump is so basic, we would not test someone on that and make them a competent local tagger.” – AB 227
- The appellant accepted that he had been trained to first isolate, and then prove isolation, of any part to be worked upon – AB 57, 63, 64. He also accepted that part of his training was that in proving isolation he was never to trust a valve – AB 61, 64 and 65, and further that he was aware that blockages in the pipes, caused by a build-up of metal and chemical residues, were commonplace – AB 40, 61 and 65. This was consistent with the training materials which were tendered and discussed with witnesses – see eg., AB 222-223.
- In this case, beyond doubt, the appellant did not isolate the pipe he broke from the caustic solution. The appellant gave no evidence that he did anything which was capable of logically proving isolation. He thought he had closed the SRUF valve. If the valve was working, closing it would stop the flow of solution from the tank above it to the flange. Trusting that valve to work, would mean that if steps were taken to empty the solution in the vertical pipe and drain pipe between the SRUF pipe and the flange, it would be safe to go ahead and replace the blind at the flange. But as the appellant acknowledged, his training was not to trust a valve, he had to prove that it functioned as expected. The appellant shut the flushing valve on the drain pipe. This was an action that was almost irrelevant in terms of isolating the flange: at most it prevented a small part of the contents of the drain pipe from entering the vertical pipe. It did nothing to remove the rest of the solution in the drain, or the vertical pipe. It did nothing to check the efficacy of the SRUF valve. It did nothing to prove isolation. The appellant then allowed the contents in the vertical pipe (and perhaps the drain) to drain out slowly through the partially unbolted flange. That could be expected to rid the vertical pipe of standing solution, but it did nothing to prove that the SRUF valve was in fact isolating the flange. The appellant did nothing else before starting work. That is, he did nothing to prove that the SRUF valve was working to isolate flow from the tank to the flange. Had he taken steps to prove that he would have discovered that the valve was open not closed, and that the vertical pipe was blocked between the SRUF valve and the level of the drain pipe. The accident would not have occurred. By the same token, had the SRUF valve been clearly marked the appellant’s not proving isolation would not have mattered. There was no evidence that the valve was not working correctly. The work on the flange would still have released the solution above the blockage, but that was a relatively small amount, and there was no argument that the appellant would have been injured if it had been released.
- These were the matters which the primary judge weighed in coming to an apportionment of 50 per cent contributory negligence on the part of the appellant. Having regard to the pleadings and the evidence in the case there could be no argument that these were not the circumstances to be weighed. However, the appellant contended that the respondent, by the conduct of its case, confined itself to a position where it could not rely on its broad pleading of failure to prove isolation in accordance with training, but only upon failure to prove isolation by a particular method, which method was itself faulty, and not capable of preventing the accident which occurred.
- Three experienced employees, (Muller, Rigby and Brodie) gave evidence as to how they would have isolated the flange, and proved isolation, before performing the task which the appellant undertook. The trial judge described it thus:
“Mr Muller explained the approach that ought to have been taken here. The worker shuts the [SRUF] 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 [SRUF] 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. The worker can then hang the tags indicating that isolation has been proved. If no flow, then there is no isolation.” (footnote omitted).
This evidence was led by the respondent without objection, say, that it was irrelevant to the respondent’s case against the appellant, or that the version had not been put to the appellant. Indeed, at the time Mr Rigby and Mr Muller gave evidence, the appellant had not closed his case, although he had been excused from the witness box.
- Ground 8 of the appeal was that the trial judge was wrong to rely upon the method which Mr Rigby gave in examination-in-chief. Mr Rigby was the first of the three employees who gave evidence for the respondent. On the transcript, at least, he was by far the clearest in explaining the method summarised at  of the judgment. Not only does he explain the method he would have used to prove isolation, he explains why he would open the SRUF valve to prove isolation, and discusses this particular part of the procedure at some length with counsel for the respondent, and the trial judge – AB 183-4. Opening the SRUF valve is not something incidental to his method, it is central to it.
- In cross-examination, counsel for the appellant led Mr Rigby through the steps in his method, but omitted the opening of the SRUF valve. He agreed at the end of this line of questions that he had described an acceptable way to prove isolation – AB 190-1 and 195. In logic, he had not, for opening the SRUF valve was essential to proof. In re-examination, Mr Rigby agreed that it was necessary to test the SRUF valve by opening it – AB 196, and in answer to questioning by the trial judge said he did not really appreciate there was a difference between what he said in his evidence-in-chief, and what he agreed to in cross-examination – AB 196. He reaffirmed to the trial judge that, “you’d energise the pipework” and that he would “get a flow” out of the drain (AB 196) two expressions I read as being descriptions of opening the SRUF valve. In my view the trial judge correctly understood the evidence of this witness, based on the whole of what he said; the fact that the version he gave in examination-in-chief was logical, and the version in cross-examination was not, and based on the fact that the evidence-in-chief was in substance the same as that given by Mr Muller and Mr Brodie.
- If the method described by the three witnesses had been used by the appellant, he would not have witnessed any flow when the SRUF valve was opened, as a check, or proof, of isolation. Having probed the drain, the appellant could only have deduced that there was a blockage in the pipe between the SRUF valve and the level of the drain pipe, or that he had confused the open and closed positions on the SRUF valve. The method described by the witnesses was plainly relevant on the pleadings. Why then is it contended that the primary judge was precluded from having regard to it?
- It is said that the method described by the witnesses was not opened by the respondent’s counsel and was not put to the appellant in cross-examination. Counsel for the respondent in fact did not open his case. On the first morning of trial, while the appellant’s counsel was opening her case, the trial judge enquired of her what it was the respondent alleged the appellant had failed to do, ie., what was meant by the respondent’s plea that the appellant failed to confirm isolation – AB 11. Counsel answered that her understanding was that the appellant failed to confirm isolation at the point of the flushing valve on the drain pipe – AB 12. This was a misreading of the pleading which clearly enough refers to isolating the SRUF valve. She then describes a method very like that described in  of the judgment below, viz, shut the drain valve; unscrew the cap at the end of the drain pipe; drain out the solution in the pipe through the uncapped end; “then once it had stopped draining out, with the cap still off, open the valve and if the system was energised, [ie connected to the tank] caustic would go streaming out under pressure”; shut the valve, concluding the system was still energised, ie., isolation had not been proved. The appellant’s counsel continued that if during this method caustic did not stream out under pressure, isolation would have been apparently proved, but in fact would not exist, because of the blockage between the SRUF valve and the level of the drain pipe – AB 13. That is, the appellant’s counsel described a method which she acknowledged would not prove isolation on the facts of the case before the Court. She conceded that her side of the record had not sought particulars, and in effect said that she was relying on the respondent not departing from its one line pleading, and there matters were left – AB 14. In these circumstances I cannot see that the respondent’s case was limited by what occurred by way of opening, or lack thereof.
- It was specifically put to the appellant that he knew he ought to isolate the piece of pipe he was to work on from the solution flowing from the tank, and he agreed – AB 64. It was specifically put to the appellant that he knew he ought not rely on a valve in proving isolation, and he agreed – AB 65. He conceded that in fact he did see the SRUF valve as his point of isolation – AB 64, yet time and again in cross-examination he could give no logical reason for thinking that he had proven it to be isolated, eg., AB 72, 73. He had several opportunities to explain why the steps he took were capable of proving isolation, notwithstanding he had neither opened the SRUF valve nor probed the drain.
- In fact the method described in  of the judgment below, in part of a training power point, which the appellant accepted that he recognised (AB 70), was put to the appellant as the correct way to isolate the flange. The power point read, “Two unproven valves that have been shut with a proven open drain between them is an acceptable isolation. The drain valve shall be open and probed.” – AB 69. The appellant accepted that having a blind at the flange was the equivalent of a valve in this scenario – AB 69. It is true that the appellant was questioned about not probing the drain, rather than not proving that that pipe between the blind and the SRUF valve was open (by turning the SRUF to open and witnessing flow), but this part of the cross-examination gave him a fair chance to comment on that part of the scenario. He did not, and his answers there, as at other parts of the cross-examination, were illogical, and failed to engage with the specifics of the alternative scenario being put to him.
- In my view the case that the appellant failed to prove isolation was sufficiently put to him in cross-examination. It was plain that the respondent said his reliance on the valve, without testing it, was impermissible according to his training. It was plainly put to him that his method of isolation was faulty; in the circumstances of the case he could hardly contend otherwise. It was put to him that he did not prove isolation and did not comply with his training. A good deal of time was spent on this topic and the appellant had ample opportunity to explain either why his actions were sufficient in terms of his training, or explain that in the pipework configuration which confronted him there was no better method for proceeding than the one he used. The rule in Browne v Dunn was sufficiently complied with. The steps the appellant took, which he swore were sufficient to isolate the flange, were put by the trial judge to Mr Muller, who explained why they were faulty – AB 230 ff; see also Mr Brodie, who also rejected the way the appellant went about the task – AB 276.
- The evidence was that there was no training for isolating any particular configuration of pipework. It appears that the respondent’s counsel at trial did not fully understand this – AB 299. Nonetheless, the evidence was that had the appellant applied the principles he accepted he was taught in training, he would have proved isolation, most probably in the way that the witnesses Rigby, Muller and Brodie described. He did not do that, nor did he take any step which was logically capable of proving isolation. He trusted a valve, and he did not think about the possibility of blockage of the vertical pipe he was to open. In all these ways he did not prove isolation in accordance with his training, and the respondent made out its pleaded case.
- As remarked above, there was no objection to the evidence of Messrs Muller, Rigby and Brodie. It fell within the scope of the pleaded case. I cannot see that there was any reason to limit the respondent’s case in the way contended for by the appellant. Grounds of appeal 1, 8 and 10(d) – (j) and 13 must fail. So must grounds 2 and 20 which proceed on the premise that there was no way of isolating the flange safely because of the blockage between the SRUF valve and the level of the drain pipe, or alternatively that the respondent was in some way precluded from the benefit of a finding in accordance with the evidence of its witnesses summarised at  of the judgment below.
Training and experience
- Four other grounds of appeal – 10(a), (b) and (c), 11, 12 and 14(b) – concerned the appellant’s training. I reject them for the following reasons. It was contended that the trial judge erred in finding that the appellant was trained in the method described at  of the judgment below, and erred in finding that the appellant had repeatedly observed the appropriate procedures for isolating an area such as he was asked to work on. In fact, the trial judge did not find that the appellant was trained in the method described at  of the judgment below, but, in accordance with the evidence, made a finding that he had been taught the appropriate procedures to do the task required of him. He found that in the training, “…the principles are taught. They do not relate to any particular pipe.” –  of the judgment below. He then found:
“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.”
- As will be apparent from the discussion above, there is no substance in the point that the appellant was not trained appropriately to perform the task he was allocated. He accepted that he had been taught all the relevant principles, see  –  of the judgment below. The evidence was that he was initially trained, both in theory and fieldwork, and then undertook extra training before he was promoted, about a year before the accident. As well, the evidence was that training in theory and field work was given by way of annual refresher.
- The appellant correctly submits that the findings in  of the judgment below involved a rejection of the appellant’s evidence in favour of other witnesses, and in this way is a consequence, to some extent, of the trial judge’s finding that he should treat the appellant’s evidence with caution –  of the judgment below.
- The appellant said several times in his evidence that he had not replaced a blind before and had not been trained in how to replace the blind in question. At least the last part of that might have been literally true, as training was not specific to any particular piece of pipework, but, as explained above, it was not true in substance, for the appellant accepted he had been trained in all principles relevant to isolating and proving isolation of the flange in question. That he would swear to a partial truth in this way confirms the trial judge’s reservations about his evidence. The appellant swore that he was unfamiliar with the task of isolating and breaking into energised pipework – AB 61. This was contrary to all the evidence about the system of training which the appellant had completed. It was contrary to Mr Rigby’s evidence: he said that he and the appellant performed the same role – AB 193; that he broke into pipework after isolating it about a “couple of times a shift” – AB 187, and replaced a blind once every four days – AB 187, and that he had seen the appellant prove isolation on numerous occasions – AB 188. Mr Muller said that he would expect someone doing the appellant’s job would break a pipe eg., to swap a blind, around once a month – AB 216. There was evidence that as well as observing isolation, and the proof of isolation in fieldwork training, the appellant had observed other operators performing this task, when he had assisted them – eg., AB 73, where the appellant says he watched one such procedure a matter of days before the accident.
- I note that the appellant rejected the notion that annual refresher training involved fieldwork – AB 55. In this respect his evidence departed from that of Muller, AB 212-3. The appellant’s description of refresher training as “going into the tag-out supervisor’s office, filling out a piece of paper” (AB 158), seems to be a deliberate understatement of the process, again compare Mr Muller.
- The trial judge accepted the more conservative estimate of the appellant’s experience. He found:
“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.” (footnotes omitted).
- There was ample evidence to support the findings made by the trial judge at  of the judgment below, and for reasons discussed more fully below, the trial judge was justified in preferring the evidence of other witnesses to the appellant on points relevant to his experience and training.
- It was argued that the trial judge ought not have rejected the appellant’s evidence because the respondent did not call anyone who had trained the appellant, or produce training records in relation to him. I reject that argument. As outlined above, the appellant admitted that he had been trained in all the principles relevant to isolating and proving isolation. The evidence as to what experience the appellant had while working was not affected by this argument.
- Grounds 14(a) and 15 of the notice of appeal were to the effect that the trial judge erred in rejecting the proposition that the respondent was negligent in failing to supervise the appellant when he performed the task allotted to him and found that the task was so simple it did not require supervision, see  of the reasons below, extracted above. Reliance was placed first on the pleading point I rejected above, oddly enough in circumstances where none of the sub-paragraphs of paragraph 25 of the statement of claim mentioned supervision and paragraph 6(b)(ii) of the reply denied that the presence of a more senior employee was necessary to check isolation. Secondly, it was said that the finding was against the weight of evidence. It was not. Mr Muller’s view about the task not being complex enough to use to certify someone is extracted at  above. His views on the matter were also that the configuration upon which the appellant was working was “a very basic system” – AB 217; and that an operator of six months experience would be able to do the job – AB 230. Mr Brodie said the system was not complex – AB 275. The appellant did not claim the system was complex. It was not put to any of the respondent’s witnesses that it was. There is nothing in these grounds of appeal.
- Grounds of Appeal 16 and 17 were that the trial judge, having found that one possible reason for the appellant failing to isolate the flange upon which he wished to work was a failure to “think it through” (above at ) had in truth found that the accident happened through mere inadvertence, and ought accordingly to have made a much smaller apportionment by reason of contributory negligence. I find it very difficult to see that this point fairly arises. The trial judge expressly said that the appellant’s failure to “think it through” was not mere inadvertence within the meaning of the cases which deal with this –  of the judgment below. Having regard to the appellant’s admitted knowledge of all relevant principles; the simplicity of the system the appellant was working on, and his failure to take any steps to prove isolation, it seems to me inevitable that he did not “think it through” i.e., think through the principles he had been taught about opening pipes. The appellant’s argument mistakenly equated that concept with the concept of momentary inadvertence or inattention discussed in some cases dealing with contributory negligence on the part of an employee. The distinction here is that the very task upon which the appellant was engaged was to isolate the flange upon which he must work. That task required him to think through the potential flows of solution in a simple set of pipework, ie., his task was to think through the principles in which he had been trained. It was not that he was engaged on some mechanical or repetitious task like the worker in Bankstown Foundry Pty Ltd v Braistina and momentarily let his attention wander. He was not distracted or rushed. His failure to isolate and prove isolation was unexplained by him, and inexplicable on the whole of the evidence. These grounds must fail.
- Lastly, so far as contributory negligence is concerned, it was argued that the trial judge failed to give proper reasons: (1) because he did not determine whether the appellant did take a short cut or failed to think through his actions before opening the pipe; (2) for finding that the appellant had repeatedly observed and been taught the proper procedures to isolate and prove isolation, and (3) for finding that the appellant had been adequately trained and failed to follow his training.
- So far as I understand the first of these points, it is based on the wrong equation between failing to think through the process of isolation and proof of isolation and mere inadvertence. There was no need for the trial judge to distinguish between the two alternatives he postulated at  of the judgment below. As to the second and third points, the evidentiary basis for the findings is clear, as I have discussed above. Further, the basis for those findings is clearly enough expressed in the judgement below – see  – . Grounds of appeal numbers 18 and 19 must fail.
- The appellant’s outline of argument acknowledged that the trial judge’s findings on credit were central to the complaints about quantum. The trial judge concluded thus about the appellant’s credit:
“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.”
- The respondent produced a 50 second video of the appellant engaging in martial arts. It was said on appeal that this had not been disclosed, and not been exempt from disclosure by order of the Court. There was no objection below, and this precludes the point being taken on appeal in my view. The trial judge described that the video showed, “Mr Kennedy moving quickly and nimbly, striking with both the 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.” –  of the judgment below. The trial judge set out the graphic description of the pain he suffered given by the appellant at  of the judgment below. He then said:
“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.
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’.
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.
The Facebook pages or posts show attendances on at least four occasions. 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.
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. He said that Mr Kennedy ‘shouldn’t present that way [meaning at his examination] if he can move like that on the video.’
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.
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.’” (footnotes omitted).
- There were discrepancies in the appellant’s pre-trial statements about his engagement in martial arts and the involvement he was shown to have by reference to Facebook records, etc. However, it is the evidence of Dr Tadros, relied upon by the primary judge at  and  of the judgment below (see above) that is particularly damning of the appellant’s credit. There were other matters. The trial judge was mistaken about the appellant saying that Mr Rigby had taught him to close the SRUF valve by reference to a spot of rust on the hex nut. However, this was a small point in the scheme of things.
- As discussed, the trial judge preferred Mr Rigby, Mr Muller and Mr Brodie to the appellant on various matters relating to training and experience of isolating pipework. The appellant gave evidence which was illogical in relation to his attempts to isolate and prove isolation. He simply could not, or chose not to, explain his actions and he made assertions which strike me as far-fetched, when the whole of the evidence is considered, e.g. AB 69 – AB 70.
- I can see no reason to interfere with the credit findings made by the primary judge. They seem to me to be temperate and soundly based in the evidence. And of course the trial judge had the advantage of seeing the witnesses.
- There were specific points taken by the appellant as to the assessment of quantum. First it was said that the trial judge did not refer to the psychologist Calcagnini in assessing general damages. That observation is correct. The psychologist was called by the appellant. He gave very brief oral evidence. A four paragraph set of treatment notes made by him, apparently after seeing the appellant twice, was tendered – AB 545. As well there was a nine paragraph letter written by the appellant’s solicitor and signed by the psychologist – AB 552. The letter does not read as an independent report to the Court ought: it does not comply with the Court rules as to expert evidence and uses emotive language.
- After one session with the appellant the psychologist makes a note, “Genuine presentation with clear and prominent indicators of PTSD – with significant mood dysfunction (depression) and anxiety – assessment consistent with GP’s formulation” – AB 545. That “GP’s formulation” was not before the Court. These treatment notes, and the letter written by the appellant’s lawyers, are in no way a substitute for an independent report to the Court. The psychologist had just met the appellant, in fact so recent was their acquaintance that he declined to give a prognosis. He was treating the appellant, not making an independent report, and no evidence was led to suggest that he had the qualifications to make a diagnosis of medical conditions.
- The trial judge had evidence from a psychiatrist, Dr Lockwood, who was called by the appellant. She did diagnose PTSD and reported that it was resolving and was in remission. The trial judge accepted that opinion – see  and  of the judgment below. That is, the trial judge found in accordance with the appellant’s own witness, whose evidence was of much better quality than that of Mr Calcagnini.
- The psychologist’s treatment notes say, “Now on Sertraline and Alprax”. There is no indication where that information comes from. It may well be hearsay from the GP referral to Mr Calcagnini, see AB 545. If it was from the appellant, it was hearsay. The appellant’s own evidence as to his taking medication was that he had taken no prescription medication since May 2012 and that he had only taken Nurofen – AB 80. The appellant complains about the finding at  of the judgment that the appellant had not taken prescription medication to any great extent for years. In effect, the appellant complains that the trial judge accepted his evidence, not the hearsay note of the psychologist Calcagnini.
- Next it was said that the trial judge erred because he did not take sufficient account of Ms Poggi’s evidence that the appellant took painkillers and tranquilisers every day. The trial judge accepted Ms Poggi as a reliable witness, but preferred the appellant’s evidence as to his medication use to the evidence of his estranged de facto wife who saw him only occasionally. There is no legitimate cause for complaint. Ground 9 must be dismissed.
- It was said that the trial judge misunderstood Dr Tadros, because he did not refer to his evidence that from time to time people recovering from serious physical injury overestimate their abilities; pursue more activity than they safely can, and suffer the consequences. A trial judge cannot refer to every syllable uttered by every witness in a case. In my view the trial judge took proper and accurate cognisance of Dr Tadros’ evidence, particularly referencing his views that patients have good and bad days.
- It was said that the trial judge misunderstood Dr Hoskins’ evidence as to whether it would be possible to find orthopaedic boots which suited the appellant. Dr Hoskins said that the current trial was something which “could work”. The trial judge found that the problem “should be sorted out in time” –  of the reasons below, and that the appellant’s major physical problems would be overcome in time –  of the judgment below. There is no cause for complaint here. There is no doubt the trial judge understood that the appellant was still not able to work in his old role because of issues with the graft to his foot and the boots he needed to wear at work. Grounds 21(b) and (c) must be dismissed.
- Ground 22 of the notice of appeal was to the effect that the trial judge failed to state the assumptions on which the award for economic loss was based, contrary to s 306J(3) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld), and that he failed to give adequate reasons for his award of damages in relation to future economic loss. That section reads:
“306JWhen earnings cannot 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. …”
- The trial judge had regard to the section. He found that he was satisfied of the matters in subsection (2) – , a finding amply justified on the preceding detailed discussion of the evidence affecting the appellant’s future working life at  –  of the judgment below. The trial judge then stated the assumptions upon which he proceeded at  –  of his reasons. These paragraphs are, and are expressed to be, a summary of the preceding discussion of the evidence. His assumptions were that the appellant was exaggerating his problems; that he would overcome the difficulties he was experiencing in wearing work boots if he persevered; that his psychological difficulties were in remission and would continue to improve; that he had maintained his pre-accident earnings for the four years since the accident; that the respondent had been an accommodating employer to date, but may change its attitude so that the appellant would lose money because he would be forced to take unpaid leave; that an opportunity to leave the respondent and work at more highly paid employment in a nickel mine in Western Australia was lost to the appellant; that the opportunity was worth $250 per week at the most; had to be substantially discounted because he may never have pursued it; may not have chosen to spend the rest of his life in Western Australia, and because the life of the nickel mine itself was unknown; that the five per cent tables ought to be used; that loss on the assumption that he stayed in employment with the respondent should be discounted by a further 15 per cent, and the loss of the opportunity to work in Western Australia by considerably more than that. The reasons for judgment comply with the section as interpreted in the case law. Appeal ground 22 must fail.
- Penultimately, the appellant claimed that the trial judge erred in refusing leave to the appellant to rely upon a further report of Dr Tadros delivered 12 days before trial. The late delivery of the report was in clear breach of the rules relating to the exchange of expert opinion. There was no explanation put before the Court as to why it was late. It was argued on appeal that the respondent did not prove that it would have been prejudiced by the late delivery. Another judge may have come to a different decision on the leave application. However, the trial judge exercised his discretion during the course of a trial, on a matter concerning compliance with the Court rules, and I would be loath to interfere with such a decision which was not plainly unreasonable.
- In any event, there was no evidential context laid in which the disputed report could have made any significant difference to the award of damages. The point of the supplementary report was that it quantified the cost of surgery to implant a spinal cord stimulator in the appellant’s back. In his earlier report Dr Tadros had said that there were five treatment options potentially available to the appellant. Each one was more drastic than the last, and the need for each was predicated on the failure of the preceding option. In that first report, which was in evidence, Dr Tadros did not discuss how likely it was that the appellant would ever need surgery for the spinal cord stimulator, AB 828-9. Under the rules relating to delivery of expert reports, he was prohibited from giving such evidence orally without leave. That leave was never sought. In fact, counsel for the appellant did attempt to introduce that kind of evidence in re-examination – AB 261. The witness did not give any evidence that the spinal cord stimulator would ever become a realistic option for control of the appellant’s pain. There is nothing in ground of appeal 23.
- The last ground of appeal, 24, is very like it, and must also be dismissed. It is said that the trial judge erred in finding that there was no evidence to the effect that the appellant would ever need surgery to implant a spinal cord stimulator. As I have explained, that was indeed the state of the evidence before the trial judge, and his finding on this matter is unassailable.
- It remains to record that at paragraph 21(a) of the notice of appeal complaint is made that “the award of damages in respect of each of the heads of damage assessed by the learned trial judge was manifestly inadequate in all the circumstances”. Not surprisingly this was not pursued by the appellant either in written or oral argument. In my view it is not a proper complaint and I cannot see anything which supports it.
- The appeal ought be dismissed with costs.
- Published Case Name:
Kennedy v Queensland Alumina Limited
- Shortened Case Name:
Kennedy v Queensland Alumina Limited
 QCA 159
Gotterson JA, Atkinson J, Dalton J
14 Jun 2016
- White Star Case:
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 317||18 Nov 2015||-|
|Appeal Determined (QCA)|| QCA 159||14 Jun 2016||-|