Damage to hands affected ongoing work
In the case of Keith Louis Tompkins v Kemp Meats Pty Ltd [2013} QDC 184 The Plaintiff, Mr Tompkins suffered a laceration to the tip of his left thumb whilst working as a slaughterman in an abattoir.
As a result of the injury, the Plaintiff alleged he had problems working in his occupation as a meat worker.
He said he could not properly grip the meat with his injured hand whilst undertaking his slicing and boning duties.
Not wearing a protective metal glove
The Plaintiff was not wearing a protective metal glove usually worn by meat workers at the time of sustaining his injury.
It was argued by the Employer and Workcover Queensland that he had been supplied these gloves and should have been wearing them.
Contributory negligence was claimed against him by the Employer for failing to do so.
It is the employer’s duty to not only supply but to enforce the wearing of safety gloves
His Honour Judge Durward in the District Court at Brisbane held that it was the Employer’s duty to not only supply the gloves but to enforce the wearing of them.
The Court accepted that the wearing of gloves was not enforced by the employer.
In fact, it was accepted by the Employer that the gloves were usually not worn by workers because they found them cumbersome in their work and unproductive.
The employer found to be negligent
The Court found that the Employer was negligent in not providing the worker with a safe system of work where the wearing of the gloves was enforced.
Additionally that the Plaintiff was not guilty of any contributory negligence in not wearing the gloves in his work, because they had not been made compulsory.
Forced to resign
The other issue that was raised by the Employer in this case was in relation to the Plaintiff terminating his employment and having to locate work elsewhere.
It was argued by the Employer that the Plaintiff had chosen to leave its employ and therefore it should not be required to meet the loss of wages incurred by the Plaintiff.
The court disagreed and accepted the Plaintiff’s argument that he had been forced to resign, because the employer was not able to provide him with suitable duties with his injured hand.
Orthopaedic surgeon provided evidence
The Court also accepted the evidence of Dr Cook, orthopaedic Surgeon over that of Dr Blenkin, that the Plaintiff would suffer problems working as a slaughterman due to his hand injury.
The loss of function in his thumb caused him gripping problems with his injured left hand, which was required in the proper performance of his duties.
Damages assessed at $360,051,37.
The 44 year old Plaintiff was accordingly awarded future economic loss at $233,064.00 and damages were assessed at $360,051,37.
This decision was appealed to the Court of Appeal (Kemp Meats Pty Ltd v Keith Louis Tompkins (2014) QCA 125).
In its decision, the Full Court upheld the decision of the trial judge in respect to his finding that the employer had been negligent and was liable for the Plaintiff’s injury.
Appealed with reduced damages
It also agreed that because the employer had been aware workers were not using the metal gloves when cutting meat because of difficulty with grip caused by them, the Full Court did not consider there should be any contributory negligence awarded against the Plaintiff for not wearing the metal glove when he was injured.
However, the Court did reduce the damages awarded to the Plaintiff at first instance, reducing them down to around $223,000.00.
The reduction was primarily in the area of future economic loss.
The wherein the Court held that he should only be compensated $63,000 for loss of delivery-driving income.
($332 per week loss difference between working as a slaughterman and a delivery-driver).
This was due to his injury over a 4 year period, and then given a global sum for future disadvantage on the labour market caused by his injury at $75,000 thereafter.
Pre-existing medical conditions were considered
The District Court had previously awarded the Plaintiff $233,000 for future economic loss being calculated at a loss of $332 per week over 15 years.
The Court’s reduction was due to pre-existing medical conditions suffered by the Plaintiff, in particular, a pre-existing shoulder injury.
The argument made by the Defendant, which was accepted by the Court of Appeal, was that the Plaintiff’s shoulder injury, and its impact on his future employment, was not properly taken into account in the court’s decision at first instance.
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