Tompkins v Kemp Meats Pty Ltd [2013] QDC 184

 

JUDGE: Durward SC DCJ 
ORDERS: 1.     I give judgment for the plaintiff, in the sum of$337,113.55.

 

2.     Defendant to pay plaintiff’s costs on the standard basis as from the date of the final written offer on 16 July 2012.

 

CATCHWORDS: TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – Breach of duty of care – primary liability admitted – injury caused at work as a slaughterman in an abattoir – knife wound to tip of thumb that severed extensor tendon – whether any capacity to work in that occupation. 

TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – GENERALLY – whether plaintiff liable by not wearing protective gloves – whether gloves supplied by employer – whether compulsory wearing of gloves within scope of employer‟s system of work.

 

DAMAGES – GENERAL PRINCIPLES – MITIGATION OF DAMAGES – PLAINTIFF‟S DUTY TO MITIGATE – whether plaintiff mitigated loss – whether plaintiff voluntarily resigned for reasons not associated with injury.

 

DAMAGES – GENERAL PRINCIPLES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT– MEASURE OF DAMAGES – PERSONAL INJURY – LOSS OF EARNINGS AND EARNING CAPACITY – whether any loss of income – inability to continue to earn income at optimal level in course of alternate employment – where plaintiff could not cope with loading and delivery driver work – part of work role taken over by another employee – financial loss to plaintiff.

 

DAMAGES – GENERAL PRINCIPLES – QUANTUM OF DAMAGES – COST OF EARNING INCOME – regional locality – where travel costs incurred in travelling to another town for alternative employment – where defendant did not challenge travel cost calculation but simply denied the head of damage – where specific calculations said to be made on assumptions and estimations – whether global assessment more appropriate basis of award.

 

DAMAGES – GENERAL PRINCIPLES – QUANTUM OF DAMAGES – LOSS OF HOUSING BENEFIT – whether recoverable – comparative evidence of value of housing supplied by defendant disputed – question of quantification of value of housing – where plaintiff had purchased a house in locality before resigning from defendant‟s employment.

 

DAMAGES – EVIDENCE BY QUANTUM STATEMENT – quantum statement prima facie admissible pursuant to s92 Evidence Act 1977 – admission of quantum statements a long standing practice in North Queensland.

 

Durward SC DCJ:

 

[41] I make the following findings on liability:

 I accept the evidence of the plaintiff as to how the injury was caused.

 I find that the defendant knew of the risk of injury to the non-dominant hand by use of the knife in the fronting out operation.

 I find that the trial of the wearing of cut-resistant gloves met resistance from employees and that the defendant acquiesced in the gloves not further being used prior to the incident.

 I find that the wearing of cut resistant gloves on the non-dominant hand by slaughtermen did have the effect of reducing efficiency and strength of grip in holding wet carcasses.

 I find that the fact that the plaintiff was a supervisor and trained in workplace health and safety was not material to the incident, given the attitude of the defendant in permitting employees, including the plaintiff, to not wear the cut resistant gloves.

 I find that the defendant consciously did not enforce the wearing of the cut resistant gloves by slaughterman, including the plaintiff, engaged in the fronting out operation.

 I find that the defendant made the wearing of cut resistant gloves mandatory only after being informed of a legal obligation to do so and post-incident.

 In the premises, I find that the plaintiff was not liable in contributory negligence.

[42] Accordingly, the plaintiff is entitled to succeed in the claim on the basis that the employer is 100% liable for the injury suffered by him.

 

 

David Cormack – Brisbane Barrister. 

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