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

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

Background

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

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

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

The Pleadings

In the original statement of claim, the appellant argued that the respondent breached its duty to the appellant by the acts and omissions of not clearly marking the open/closed switch on the relevant valve; the appellant was unaware 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 respondent submitted that the valve was appropriately marked, and that the plaintiff, being an experienced process technician and trained in “Review, Isolation, Tag and Lockout procedure” failed to take reasonable care for his own safety by not confirming the isolation of the caustic solution, contrary to his training. The respondent did however admit that the plaintiff suffered injuries due to the negligence and/or breach of contractual duty of the defendant, and that a causal connection existed between its breach and the alleged accident.

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

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

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

On Appeal

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

Therefore the appellant’s appeal failed where he argued that his method was sufficient for proving isolation.

The argument that the appellant was inadequately trained for this task, and that he should have been supervised, also failed at appeal as the appellant had been given procedural training which related to how to carry out this task on any pipe formation. Further, this particular formation was determined as being a very simple one, well below the technical difficulty that the appellant had been trained at. It was irrelevant that the appellant had not worked on this specific pipe, as the procedures he had been trained in were applicable to all pipe configurations. The Trial Judge was satisfied that “the essential task was familiar” to the appellant (referred to at [36]).

Further and in the alternative, the appellant argued that the accident happened as a result of “inadvertence”, in that his failure to perform a proper isolation was the result of a failure to “think it through” and therefore should result in a much smaller apportionment of contributory negligence. This argument was also dismissed given that it was inherent to the task to “think through the potential flows of the solution in a simple pipework”, and the appellant provided no evidence of being distracted or rushed in his work.

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

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

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

Take Away

There are several aspects to take away from this case, the first and most prominent being that where there has been a personal injury resulting from a failure to carry out a task according to proper procedures, the court will likely determine contributory negligence by the claimant and will reduce quantum accordingly. Further, it is also important to note that the court will be very reluctant to grant leave to a party outside of what the Court rules will allow, so parties should do all they can to ensure that they file and serve submissions and evidence within the legislative time frames. Finally, this case serves as a reminder not to pursue litigation where there is little merit to the cause of action – the end result is likely to be very frustrating and very costly. While the appellant in this case may have reasonably believed that he should have received reduced liability and greater quantum, the bench ultimately determined that the plea’s he entered were not well founded, and awarded costs against him.

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