Tompkins v Kemp Meats Pty Ltd - [2013] QDC 184

DISTRICT COURT OF QUEENSLAND

CITATION:

Tompkins v Kemp Meats Pty Ltd [2013] QDC 184

PARTIES:

Keith Louis Tompkins

(Plaintiff)

v

Kemp Meats Pty Ltd
ACN 088931024
as Trustee for the Kemp Meat Trust

(Defendant)

FILE NO:

D294/12

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Townsville

DELIVERED ON:

17 July, 2013

DELIVERED AT:

Brisbane

HEARING DATES:

27 and 28 February 2013, 01 March 2013

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.

LEGISLATION:

Civil Liability Act 2003 s11 ; Civil Liability Regulation 2003 Sch 4; Workers Compensation and Rehabilitation Act 2003 Ch5 Pt9, ss306C-306P; Law Reform Act 1995 s 10; Uniform Civil Procedure Rules 427, 429, Ch14 Pt2; Evidence Act 1977 s92.

CASES:

McLean v Tedman (1984) 155 CLR 306; Davies v Adelaide Chemical & Fertilizer…

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.

Keep reading for free

Create a free CaseChat account to read Tompkins v Kemp Meats Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] QDC 184
Decision Date: 17 July, 2013

CaseChat Overview and Summary

In the Supreme Court of Queensland, the plaintiff, Tompkins, sued the defendant, Kemp Meats Pty Ltd, for damages arising from a workplace injury. Tompkins, a slaughterman at the defendant’s abattoir, suffered a knife wound to his thumb that severed the extensor tendon, resulting in a permanent disability. The primary issue was whether Tompkins had any capacity to continue working as a slaughterman given his injury. Secondary issues involved contributory negligence, specifically whether Tompkins’ failure to wear protective gloves contributed to his injury, and the appropriate measure and quantum of damages for his loss of earnings and earning capacity.

The court found that Tompkins had no capacity to continue in his occupation due to the severity of his injury. Regarding contributory negligence, the court held that although Tompkins did not wear protective gloves, the employer had not enforced the wearing of gloves as part of its system of work, and therefore, the employer bore the primary responsibility for the breach of duty. The court also concluded that Tompkins had not voluntarily mitigated his loss by resigning for reasons unrelated to his injury. In assessing damages, the court determined that Tompkins had suffered a loss of income due to his inability to work at his optimal earning level in alternative employment, despite being able to perform some loading and delivery tasks. The court awarded damages for lost earnings, travel costs associated with seeking alternative employment, and loss of housing benefit, although the latter was subject to dispute regarding the value of the housing provided.

The court awarded Tompkins a total of $337,113.55 in damages, reflecting the loss of earnings, travel costs, and housing benefit. The defendant was ordered to pay the plaintiff’s costs on the standard basis from the date of the defendant’s final written offer on 16 July 2012.

Orders

Orders of the court

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.

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:	Tompkins v Kemp Meats Pty Ltd [2013] QDC 184
PARTIES:	Keith Louis Tompkins (Plaintiff) v Kemp Meats Pty Ltd ACN 088931024 as Trustee for the Kemp Meat Trust (Defendant)
FILE NO:	D294/12
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court, Townsville
DELIVERED ON:	17 July, 2013
DELIVERED AT:	Brisbane
HEARING DATES:	27 and 28 February 2013, 01 March 2013
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.
LEGISLATION:	Civil Liability Act 2003 s11 ; Civil Liability Regulation 2003 Sch 4; Workers Compensation and Rehabilitation Act 2003 Ch5 Pt9, ss306C-306P; Law Reform Act 1995 s 10; Uniform Civil Procedure Rules 427, 429, Ch14 Pt2; Evidence Act 1977 s92.
CASES:	McLean v Tedman (1984) 155 CLR 306; Davies v Adelaide Chemical & Fertilizer…