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Contributory negligence by worker and exaggeration lead to reduction in damages

Kennedy v Queensland Alumina [2015] QSC 317

McMeekin J

18 November 2015

The Supreme Court in Rockhampton found an Employer liable for injuries suffered by a worker, but found the worker had contributed to those injuries through his own negligence.

The facts

Mr Kennedy was injured when he came into contact with a caustic solution, which he knew would cause severe burns.

His job was to 'open' a pipe which conveyed the caustic solution from a large vat. It was necessary that a part of the pipe known as a blind.

He failed to isolate a pipe properly and opened a valve, instead of closing it. He then failed to follow a further step to 'prove' the isolation.

Allegations against the employer

The employer was alleged to have failed to take care of the Plaintiff's safety in a number of respects including:

  1. failing to instruct;
  2. failing to maintain the equipment
  3. failing to warn by placement of signage.

The employer had admitted breach of duty but claimed the Plaintiff had contributed to his injuries.

Trial Judge's findings

The employer was liable for failing to mark the valve properly such that the open and closed positions were clearly delineated. The markings were obscured by scale build up. This was particularly important where it was 10.30pm and visibility was not good.

However, the Court found that Mr Kennedy had been adequately trained and that he had failed to follow instructions. This was a significant departure from the safety procedures and the Court assessed that he was 50% to blame for this.

In relation to damages, the Court viewed video and accepted that Mr Kennedy's activities as depicted were not consistent with his complaints of pain. The Court found that he was not dishonest, but prone to exaggeration.


The Plaintiff appealed the finding in relation to contributory negligence, and also in relation to the amount of damages awarded, but he did not succeed and was ordered to pay the employer's costs.