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…
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- Case
- [2013] QDC 184
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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