WCRA: no contributory negligence when mesh gloves not enforced

Kemp Meats Pty Ltd v Tompkins [2014] QCA 125

The appeal was allowed on the basis of a reduction in damages. The appeal was not allowed in relation to contributory negligence.

 

Catchwords TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – PARTICULAR CASES – OTHER CASES – where the respondent slaughterman sustained a workplace injury while employed at the appellant’s abattoir – where the respondent was awarded judgment in the sum of $337,113.55 – where the appellant accepted liability for the respondent’s injury but alleged that his negligence in failing to wear cut-resistant gloves provided to him contributed to the injury – whether the appellant had “properly instructed” its employees to use the gloves for the purposes of s 305H(1)(b) of the Workers’ Compensation and Rehabilitation Act 2003 – whether the respondent was “provided” the gloves for the purposes of s 305H(1)(b) or s 305H(1)(c) of the Workers’ Compensation and Rehabilitation Act – whether the trial judge erred in finding that the respondent had not contributed to his injury DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – METHOD OF ASSESSMENT – GENERALLY – where the respondent suffered personal injury in the course of his employment – where the respondent was awarded judgment in the sum of $337,113.55 – whether the respondent’s pre-existing shoulder injury was properly taken into account in the award of damages for past and future economic loss – whether there was evidence justifying a finding of loss of income by virtue of his loss of the opportunity to carry out more highly-paid employment – whether there was error as to the period over which any such opportunity was lost – whether there was error as to the period over which the respondent was entitled to compensation for increased expenses

Holmes JA with whom the President and Fraser JA agreed:

[2] HOLMES JA: On 17 July 2013, the respondent, Mr Tompkins, received judgment in the sum of $337,113.55 for a workplace injury sustained in the course of his employment as a slaughterman in the appellant’s abattoir at Sarina. The appellant, Kemp Meats Pty Ltd, appeals in relation to liability, on the ground that the trial judge erred in not finding that negligence on Mr Tompkins’ part contributed to his injury, and in relation to quantum, on the basis of a number of findings said to be erroneous.

The accident and injury

[3] Mr Tompkins had spent his working life from the age of 14 in the meat-processing industry. He was 42 years old when he was injured on 9 August 2010. For the previous decade, he had worked as a slaughterman in Kemp Meats’ abattoir, for most of that period as a leading hand, and at the time of his accident had a supervisory role on the slaughter floor. He was injured while he was using a knife to gut a pig suspended from a chain. He found that he needed extra force to detach the animal’s lungs from its rib cavity. As he applied that force using his right hand, his knife slipped and cut the extensor tendon of his left thumb. He was left with a limited capacity to bend the thumb, which affected his ability to grip.

[4] Dr Cook, an orthopaedic surgeon who had examined Mr Tompkins’ hand, said that his inability to bend the thumb would

“make it more difficult for him to grip any objects that are smooth or slippery because a large object sitting in the space between the thumb and the fingers tends to be pushed out rather than have the thumb and the fingers combine [to] curl around it”.

In consequence, he was unlikely to be able to work efficiently as a slaughterman, slicer, boner or butcher, or in any other physical manual work which involved gripping and holding objects with the left hand. Mr Tompkins left his employment with Kemp Meats in February 2011 because of his difficulty gripping carcasses and the pain he experienced in his left hand when he did so.

Contributory negligence

[5] Mr Tompkins pleaded, in essence, that the injury was caused by Kemp Meats’ negligence in not requiring slaughtermen to wear “cut-resistant” gloves. Kemp Meats accepted liability, but alleged that Mr Tompkins’ negligence in failing to wear cut-resistant gloves provided to him contributed to his injury.

[6] Section 305H of the Workers’ Compensation and Rehabilitation Act 2003, which deals with contributory negligence, provides, inter alia:

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

(b) failed at the material time to use, so far as was practicable, protective clothing and equipment provided, or provided for, by the worker’s employer, in a way in which the worker had been properly instructed to use them; 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…”

The relevant standard of care required of the injured worker is that of a reasonable person in his or her position[1] and the issue is to be decided on the basis of what he or she “knew or ought reasonably to have known at the time”.[2] The legislation does not alter the common law position that the onus of proof in this respect rests with the employer.

[7] There had previously been a trial of cut-resistant gloves in the abattoir; the evidence was that the slaughtermen did not take up their use because they found they impeded the cutting process. This exchange took place between Mr Tompkins and counsel for the respondent on the subject:

“See, what I’m going to suggest to you is that earlier than this time, earlier than the time you were cut, there was a meeting at the – at Kemp Meats where there was a discussion about wearing gloves and most of the workers were opposed to wearing gloves; would you agree with that or not? – – Yeah, I do remember something about that, yeah.

Okay. And were you part of that meeting? – – Yeah. We had a discussion about it because I said to Andrew that I think you’ll find that it’ll probably create other problems like, you know, like having to try and grip with a surgical glove, if you know what I mean.

Yes. All right. Now, you were opposed to the notion of wearing gloves before this injury to your thumb, weren’t you? – – Yeah. I wasn’t – yeah. Only because – I tell you – I tell you one of the reasons, Mr Collins. I’ve had carpal tunnel – – – – –

Mmm?- – – – – – -and I never want it back again.”

Mr Tompkins’ unchallenged evidence was that of the three sets of gloves bought for the trial, one was too small for use. After the failed trial, the gloves were kept in a cupboard in the boning room, where the boners used them to keep their hands warm.

[8] A director of Kemp Meat, Mr Andrew Kemp, explained that the abattoir’s slaughtermen had expressed concerns about their ability to grip with the gloves on, because it was necessary to wear plastic gloves over them. They also complained that they risked developing repetitive strain injury. Because of the workers’ objections, he had not made use of the gloves compulsory in the abattoir before Mr Tompkins’ accident, but after it, on WorkCover’s advice, wearing them became mandatory.

[9] The trial judge made these findings concerning the use and non-use of the cut-resistant gloves. When they were trialled at the abattoir, only three pairs, in three different sizes (small, medium and large), were made available for 13 knife workers on the slaughter floor. The slaughtermen had a meeting at which they discussed the gloves’ use and decided against it, something which was accepted by Mr Kemp, who did not enforce their use. Kemp Meats knew of the risk of injury to the non-dominant hand of a slaughterman using a knife to perform the gutting operation. When employees indicated their opposition to wearing cut resistant gloves, Kemp Meats acquiesced. The wearing of the cut-resistant gloves did have the effect of reducing efficiency and strength of grip in holding wet carcasses. It was immaterial that Mr Tompkins was a supervisor trained in workplace health and safety, given Kemp Meats’ attitude in not insisting on the wearing of the gloves. The wearing of the gloves was made mandatory only after the accident. On the basis of those findings, his Honour concluded that there was no contributory negligence on Mr Tompkins’ part.

[10] Kemp Meats contended here that Mr Tompkins was aware of the risk of injury from knife cuts; his evidence was that he had worked in the meat industry for some 27 years by the time of his accident and had had a number of such cuts over the years. He knew the gloves, designed to reduce the risk of injury, were available but refused to wear them, although there was no practical reason why he could not do so, other than his notion of developing carpal tunnel syndrome. Section 305H(1)(c) and, “arguably”, it was said, s 305H(1)(b) applied.

[11] There are, in my view, two flaws in Kemp Meats’ argument. The first, which concerns s 305H(1)(b), is that it is clear from Mr Tompkins’ evidence that it was not simply a matter of his concern about developing carpal tunnel which had made him opposed to wearing the gloves; like the other workers, he had concerns about his capacity to grip. Those disadvantages founded the workers’ resistance to wearing the gloves, which was, on Mr Kemp’s evidence, something the employer accepted. It can hardly be said, then, that Kemp Meats had “properly instructed” its employees to use the gloves.

[12] Secondly, Mr Tompkins’ evidence that there were only two sets of wearable gloves, both kept in the boning room and used by the boners, was not contradicted. In those circumstances, Mr Tompkins cannot be said to have been “provided” with the gloves for the purposes of either s 305H(1)(b) or s 305H(1)(c). There was no error in the trial judge’s conclusion that Mr Tompkins had not contributed to his injury.

Brisbane Barrister – David Cormack

 

 

 

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