Modest damages for minor burn injury

Welsh v Boutique Venues Pty Ltd [2020] QDC 18

Rosengren DCJ – Brisbane District Court

Delivered on 5 March 2020

Background

The Plaintiff was a 21 year old pastry chef. There were two ovens in the Plaintiff's section of the kitchen – one below bench height and one approximately a metre above bench height (“the elevated oven”).

On 4 April 2017, the Plaintiff was preparing a dessert which was required to be cooked in a “water bath”. She placed the bain-marie tray into the elevated oven, stood on a milk crate and poured water into the tray. One hour later, she returned to the oven and pulled out the tray.

The Plaintiff said that she had forgotten the tray contained water and she thought it contained bread. She removed the tray as she would remove a tray of bread, spilling the hot water onto her forearms. She suffered minor burns.

Liability

The employer's evidence was the Claimant should not have used this oven, and should have used the below bench oven at her workplace. It also claimed the Plaintiff was careless for her own safety and her damages should be reduced for contributory negligence.

The Court found the risk was foreseeable and was not insignificant. The Court held a reasonable person in the position of the employer would have expressly trained chefs not to use the elevated oven when using a tray with hot water in it.

The Court also accepted the Plaintiff's evidence she did not realise she was removing a tray that she had put into the oven herself only an hour previously, and therefore did not realise it contained hot water. On that basis, no contributory negligence was found.

Judgement/findings

The Plaintiff's injury was minor. She returned to work and then resigned. The principal issue was whether the Plaintiff's resignation was due to the injury, or her desire to move into a different industry.

There was clear evidence the Plaintiff was no longer enjoying working as a chef 6 months before the injury. Her work performance deteriorated thereafter. She told her doctor before the event that she intended to change career to child care.

The Plaintiff's credibility was a critical issue. Judge Rosengren did not accept the Plaintiff's evidence about her intention to continue working as a chef and about the extent of her ongoing symptoms.

Her Honour made the following findings in relation to damages:

• The Plaintiff's injuries now have only a relatively minor impact on her
• The Plaintiff was unlikely to have continued working for the Defendant irrespective of the injuries
• The Plaintiff had repeatedly expressed to other chefs her intention to leave the hospitality industry and to work in childcare
• The Plaintiff's earning capacity has been diminished by reason of the ongoing intermittent pain and such diminution may be productive of economic loss.

Judgement was entered for the Plaintiff for $36,326.85.

Discussion/implications

This judgement demonstrates a relatively low threshold for the Plaintiff to receive an award for future economic loss given the minor injuries and findings about their impact on the Plaintiff.

It is important for employers to ensure employees are instructed to perform tasks which carry a risk in a certain way – even if it is a simple as using one oven over another. An employer should then ensure that the instructions provided to employees are enforced.