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Workcover to pay meat worker $360,000 damages for cut to his thumb

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 abbatoir. As a result of the injury, the Plaintiff alleged he had problems working in his occupation as a meatworker as he could not properly grip the meat with his injured hand whilst undertaking his slicing and boning duties. The Plaintiff was not wearing a protective metal glove usually worn by meatworkers at the time of sustaining his injury and it was argued by the Employer and Workcover Queensland that he had been supplied these gloves and should have been wearing same. Contributory negligence was claimed against him by the Employer for failing to do so.

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 same. The Court accepted that the wearing of gloves was not enforced by the employer and 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 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 and that the Plaintiff was not guilty of any contributory negligence in not wearing the gloves in his work because same had not been made compulsory. 

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 because of same. 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.  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 as the loss of function in his thumb caused him gripping problems with his injured left hand, which was required in the proper peformance of his duties.

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 - see 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. 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 same, 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, 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) 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. 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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