Case note: Kennedy v Queensland Aluminia Limited  QSC 317
Mr Paul Kennedy (Plaintiff) brought a claim for damages against his employer, Queensland Aluminia Limited (Employer).
The Plaintiff was required to break open a vertical pipe and to replace a “blind” on a section of it. The pipe conveyed caustic solution. The Plaintiff was aware that if the pipe was not isolated effectively from the tank overhead, caustic could emerge from the pipe and it would cause severe burns if he came into contact with it.
The Plaintiff touched the pipe noting that it was hot and believed that it was “live” or “energised”. He closed the pump suction valve by turning a hex nut to what he thought was the closed position. He actually opened the valve. The hex nut was not marked to show when it was opened or closed.
The Plaintiff loosened three bolts on the flange at the base of the pipe where he intended to insert the blind. A “show of liquor” came from the open section of the flange at a steady pace and then the stream reduced to a dribble. He left the task for a break and returned to it half an hour later.
On return, no further caustic was coming from the pipe. He removed the rest of the bolts and while in a kneeling position the caustic shot out, striking him in the chest and face.
The Court considered that there were two reasons why the incident occurred:
- The Plaintiff opened the pump suction valve instead of closing it.
- The Plaintiff did not prove isolation.
The Employer admitted liability for the claim but alleged contributory negligence on the part of the Plaintiff for failing to prove isolation.
The Employer had a standard procedure for proving isolation. A witness for the Employer explained that in such a situation, a worker is expected to shut the suction valve and open the drain leg by removing the cap. The worker is to use a probe to probe the drain leg to get the flow. The worker is to then open the suction valve to witness the flow. When the flow has stopped, the worker has proved isolation.
The Plaintiff’s evidence at trial demonstrated an inconsistency between his understanding of how to prove isolation and the actual procedure the Employer required staff to follow. The Plaintiff simply turned off the suction valve and then proceeded to open the pipe. The Plaintiff believed that he should break into the pipe “to prove drainage”.
The Court was satisfied that the Plaintiff knew of the use that ought to have been made of the probe. It was set out in a documented tagging procedure. The Plaintiff had seen a power point slide relating to the procedure. A witness for the Employer said that the task the Plaintiff was undertaking was not complex and it was one that staff would be competent to perform after six months in the job. The Plaintiff had been working for the Employer for three years at the time of the incident. He had been promoted and had tag competencies.
In a judgment delivered on 18 November 2015 The Honourable Justice McMeekin found as follows:
- The Employer failed to ensure that there was an adequate system of marking the valves to ensure that an operator knew when they were opening or closing them.
- The Plaintiff had been adequately trained. He would not have been promoted and given tag competencies, if he was not completely familiar with the Employer’s procedures. He failed to follow instructions in proving the isolation of the system. He had no excuse for doing so. That involved a significant departure from safety procedures.
- The Plaintiff’s actions went well beyond “mere inadvertence, inattention or misjudgment”. The Employer’s system was intended to cater for a mistake. The possibility of a valve not being effective was at the heart of the Employer’s system. Had the Plaintiff done as he had been taught, the open valve would have been identified and the work not undertaken.
- Liability should be apportioned between the Employer and the Plaintiff 50/50.
His Honour also commented that it was “trite law” that the onus lies on an employer to establish contributory negligence.
Here, the Employer established a significant reduction for contributory negligence despite:
- pleading limited particulars of its case for contributory negligence; and
- the fact that it could not call a witness who could claim to have directly taught the Plaintiff the procedures.
The case illustrates how important it is for employers and host employers to persist with allegations of contributory negligence where a worker has departed from the Employer’s documented safety procedures and training.
This case will be of particular interest to those working in industries involving isolation and tagging procedures – e.g. mining, gas, infrastructure.
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