Kemp Meats Pty Ltd v Tompkins - [2014] QCA 125

SUPREME COURT OF QUEENSLAND

CITATION:

Kemp Meats Pty Ltd v Tompkins [2014] QCA 125

PARTIES:

KEMP MEATS PTY LTD
ACN 088 931 024 as trustee for the KEMP MEAT TRUST
(appellant)
v
KEITH LOUIS TOMPKINS
(respondent)

FILE NO/S:

Appeal No 7438 of 2013
DC No 294 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

30 May 2014

DELIVERED AT:

Brisbane

HEARING DATE:

4 March 2014

JUDGES:

Margaret McMurdo P and Holmes and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The appeal is allowed.1.

The judgment given below in the amount of $337,113.55 is set aside.2.

The parties have leave to deliver written submissions (no longer than three pages) within fourteen days concerning the amount for which judgment should be given in conformity with the court's reasons and as to costs3.   .

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

Civil Liability Act 2003 (Qld), s 55
Civil Proceedings Act 2011 (Qld), s 61
Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 305F, s 305H

Ballesteros v Chidlow [2006] QCA 323, cited
Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34, applied
Watts v Rake (1960) 108 CLR 158; [1960] HCA 58, applied

COUNSEL:

R Treston QC for the appellant
G F Crow QC, with S J Deaves

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] QCA 125
Decision Date: 30 May 2014

CaseChat Overview and Summary

In the case of Kemp Meats Pty Ltd v Tompkins, the respondent, a slaughterman employed at the appellant’s abattoir, sustained a workplace injury. The dispute centred around the amount of damages awarded to the respondent and the appellant's assertion of contributory negligence due to the respondent's failure to wear provided cut-resistant gloves. The appellant contended that the respondent's negligence contributed to his injury and argued that the trial judge erred in finding that the respondent had not contributed to his injury. Additionally, the appeal questioned whether the trial judge correctly assessed the damages awarded, particularly concerning the respondent's pre-existing shoulder injury, the potential for loss of income from higher-paid employment, and the period over which compensation for increased expenses should be paid.

The primary legal issues before the court were whether the appellant had properly instructed its employees to use the cut-resistant gloves, whether the respondent was provided with the gloves, and whether the respondent's contributory negligence should have reduced the damages awarded. Furthermore, the court had to determine if the trial judge's assessment of damages, including consideration of the pre-existing shoulder injury, loss of income from higher-paid employment, and the period for which compensation for increased expenses should be awarded, was correct. The court needed to examine the provisions of the Workers' Compensation and Rehabilitation Act 2003 and principles of contributory negligence and damages in personal injury cases.

The court found that the trial judge had erred in not considering the respondent’s contributory negligence in reducing the damages awarded. The court held that the appellant had not properly instructed its employees to wear the cut-resistant gloves, and therefore, the respondent was not "provided" with the gloves as per the statutory provisions. Consequently, the respondent’s failure to wear the gloves did not constitute contributory negligence. However, the court found that the trial judge had not correctly assessed the damages awarded, particularly in relation to the pre-existing shoulder injury and the period over which compensation for increased expenses should be awarded. The court determined that the appeal should be allowed, the judgment set aside, and the parties given an opportunity to submit written arguments regarding the appropriate amount of damages and costs.

Orders

Orders of the court

The appeal is allowed.1.

The judgment given below in the amount of $337,113.55 is set aside.2.

The parties have leave to deliver written submissions (no longer than three pages) within fourteen days concerning the amount for which judgment should be given in conformity with the court's reasons and as to costs3. .

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Kemp Meats Pty Ltd v Tompkins [2014] QCA 125
PARTIES:	KEMP MEATS PTY LTD ACN 088 931 024 as trustee for the KEMP MEAT TRUST (appellant) v KEITH LOUIS TOMPKINS (respondent)
FILE NO/S:	Appeal No 7438 of 2013 DC No 294 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	30 May 2014
DELIVERED AT:	Brisbane
HEARING DATE:	4 March 2014
JUDGES:	Margaret McMurdo P and Holmes and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	The appeal is allowed.1. The judgment given below in the amount of $337,113.55 is set aside.2. The parties have leave to deliver written submissions (no longer than three pages) within fourteen days concerning the amount for which judgment should be given in conformity with the court's reasons and as to costs3. .
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 Civil Liability Act 2003 (Qld), s 55 Civil Proceedings Act 2011 (Qld), s 61 Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 305F, s 305H Ballesteros v Chidlow [2006] QCA 323, cited Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34, applied Watts v Rake (1960) 108 CLR 158; [1960] HCA 58, applied
COUNSEL:	R Treston QC for the appellant G F Crow QC, with S J Deaves