The defendant admitted liability, but claimed contributory negligence pursuant to s 305H of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) and disputed the damages claimed. The plaintiff was injured when caustic soda flowed out of a pipe he was working on and came into contact with his left heel and ankle. The defendant’s claim was based on the plaintiff not isolating the pipe to prevent the flow of caustic, contrary to his training. In respect of damages, the defendant relied on the exaggeration of the plaintiff by reference to Facebook posts and video surveillance.
McMeekin J was satisfied the plaintiff had failed to follow the procedures he had been taught by his employer and preferred the evidence of the employer’s Operations Superintendent as to what training was provided. The departure by the plaintiff from his training was significant and did not fall into the category inadvertence or inattention. McMeekin J was satisfied that the task was simple enough not to require supervision and that the plaintiff could easily have requested assistance. Despite the heavy burden of overcoming the non-delegable duty imposed on employers to use reasonable care to provide a safe system of work (Kondis v State Transport Authority  HCA 61; (1984) 154 CLR 672).
Liability was apportioned 50% on what was “just and equitable having regard to the claimant’s share in the responsibility for the damage” (Law Reform Act 1995 (Qld), s 10(1)(b) & Podrebersek v Australian Iron & Steel Pty Ltd  HCA 34; (1985) 59 ALJR 492 at 493–4;  HCA 34; 59 ALR 529 at 532).
The Facebook posts and video surveillance together with the manner in which the plaintiff gave evidence resulted in His Honour treating the plaintiff’s evidence with considerable caution because it was given with a view to maximise his disability. Nevertheless, there was corroborating evidence which His Honour accepted in the main, including the plaintiff’s estranged de facto.
The contentious issue of lost earning capacity was bolstered by the unusual step of the plaintiff’s claim being re-opened after the trial to demonstrate the use of sick leave and that the plaintiff had less than 2 days sick leave to go to close on a year still to go before accruing further leave. There was much contention as to whether the plaintiff’s future loss of earning capacity should be based on the plaintiff unreasonably choosing to leave his employer of long standing (although he had not yet); the lost opportunity to take up higher paying work in Western Australia upon which the past loss of income was based; or whether the plaintiff could persist at work and if leave was require, have the benefit under his Enterprise Bargaining Agreement for “salary continuance benefits” to accommodate time off without sick leave.
McMeekin J found there was no certainty the plaintiff could rely on the benefits in the Enterprise Bargaining Agreement or if the plaintiff decided to leave his work, it would not be unreasonable given the problems he was having with the sensitivity caused by his boots. His Honour found that the difference in wage for the Western Australian work would probably have been in the order of $250 week, but having regard to travel to Western Australia and the time involved in travel and period away from family, it would “diminish the incentive to take up the work permanently”.
His Honour also made note that a week off work without sick leave would equate to $1,225.00, which was significant when considering the likely future loss. Balancing these matters against Section 306J of the Workers’ Compensation and Rehabilitation Act 2003 and the principles in Malec v JC Hutton Pty Ltd  HCA 20, His Honour allowed a global loss of $250,000.00 for 40 years lost earning capacity.
In passing, when assessing past loss earning capacity and reductions for expenditure incurred in producing earnings His Honour declined to deduct the cost travel to Western Australia in terms of Wynn v NSW Insurance Ministerial Corporation  HCA 53; (1995) 184 CLR 485.
Relevant Principles – Contributory Negligence
 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  QCA 125 at  per Holmes JA, as her Honour, then was.
 The relevant principles to apply at common law were explained in Bankstown Foundry Pty Ltd v Braistina 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). 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  HCA 34; (1985) 59 ALJR 492 at 493–4;  HCA 34; 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  HCA 26; (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  UKHL 4;  AC 663 at 682; Smith v McIntyre  TASStRp 11;  Tas SR 36 at 42–9 and Broadhurst v Millman  VicRp 15; 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.’”
 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” 
 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.”
 The crucial findings then are these:
(a) 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;
(b) 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;
(c) 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;
(d) Mr Kennedy let the pipe drain before completely opening the blind and that removed the contents from below the blockage;
(e) There is no suggestion that the valve was faulty – so if it had been closed it should have worked to isolate the SRUF tank;
(f) 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.
 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.
 That depends to a significant degree on the causative effect of the departure from the standard expected.
 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.
 Ms Heyworth-Smith submitted that the case was on all fours with Hughes v South Australian Harbours Board  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.
 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. 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.
 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”. 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.
 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.
 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.
 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.
 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  HCA 8; (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  HCA 53; (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.”
 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.
Future Economic Loss
 Mr Kennedy claims $551,273.34 and QAL allows $100,000 as a global sum.
 To understand the arguments it is necessary to detail a little more specifically the physical difficulties that Mr Kennedy has had at his workplace.
 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.
 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.”
 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.”
 The restrictions contemplated were to limit Mr Kennedy to office work until the orthotics had been sorted out.
 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.”
 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.”
 By August 2015 Dr Hoskins certified:
“Can move to 12 hour shifts, whatever he is doing so far BUT NO MORE.”
 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.
 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.
 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.
 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.”
 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.
 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. 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.
 In my view Mr Kennedy could not be criticised as acting unreasonably if he chose to leave.
 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. 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. While the assumptions underpinning that assessment are possibilities, they are far from certainties.
 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:
(a) the three matters identified with respect to the calculation of past economic loss remain relevant;
(b) Mr Kennedy led no evidence as to the longevity of the nickel mine;
(c) 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”.
 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.
 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.
 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.
 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.
 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.
 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%.
 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.
 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.
 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  HCA 20; (1990) 169 CLR 638.
 Adopting those principles and doing the best I can with many uncertainties I assess the loss at $250,000.
David Cormack – Brisbane Barrister & Mediator
NB: appeal by the plaintiff dismissed – Kennedy v Queensland Alumina Ltd  QCA 159