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In what circumstances can the supplier of machinery that an employer allows to be used in an unsafe manner be made to bear responsibility for the injuries it causes to a worker?
Consider the case of a farm worker accident that traumatically amputated an employee’s lower left leg when it was caught in a grain auger that he was trying to clear.
Jethro Baker was employed as a machine operator and farmhand on the rice-growing property owned by Frank, Anna, Stephen and Nicholas Morona near Deniliquin in the Riverina region of New South Wales.Up to 10 tonnes of harvested rice could be stored in each of the four field bins on the farm before it was transferred to trucks for freight to a buyer for processing.
An internal auger is used to transfer the grain from the bin into trucks. The system depends on grain falling to the uncovered end of the auger at the base of the bin so it can carry the grain up a chute and into the back of the waiting transport.
Baker was operating the auger in April 2018 in order to transfer the rice to a truck when it became stuck and stopped flowing into the auger.
He climbed through a hatch at the top of the field bin and descended inside to move the grain with his feet. In the process, his left foot went through a gap in a mesh guard at the base of the bin and came into contact with the operating auger.
He sued his employer and Ahrens Group Pty Ltd, who designed and built the bins contending the latter should bear 90% responsibility.
Justice Andrew Keogh was assigned to apportion liability in the Supreme Court at Bendigo against a background of the parties have agreed on a sum for Baker’s financial loss and general damages arising from the accident.
The 35-yr-old Baker recruited mechanical engineer and veteran occupational health & safety expert Tom Dohrmann who identified that the mesh guard through which Baker’s foot passed was of a recently altered design with a gap above the uncovered auger end and some mesh squares unsupported on one edge.
He referred to the relevant WorkCover NSW Code of Practice that specified “all ancillary plant, such as augers, conveyor drive shafts and pulleys, should be guarded to prevent anyone coming into contact with moving parts of the machinery”.
Australian Standard 4024 for machinery safety was also relevant in that it referred to principles of risk assessment and risk reduction the foremost of which was “inherently safe design”.
Dohrmann’s view was that the mesh guard was less effective than its earlier iteration and that any “inherently safe design” would have prevented the operator from entering through the field bin hatch unless the auger had been disengaged.
Ahrens engaged Dr Bruce Field, a mechanical engineer involved in the design of on-farm equipment. He concluded that the field bin achieved an inherently safe design in accordance with the standard, and it was unnecessary for a designer to take further protective measures, such as guarding the auger.
However, under cross-examination, he accepted the guard did not adequately perform its function.
Various industry documents put before the court clearly indicated a history of and propensity for farm workers to intentionally or accidentally approach operating augers.
Justice Keogh observed that the “risk of harm from coming into contact with an operating auger was notorious”.
He found that the manufacturer must have been aware of those risks and the wisdom of adequately guarding exposed auger blades against unsafe practices adopted by farm workers.
The weakening of the guard caused by the redesign of the mesh created an increased risk of a worker’s foot coming into contact with the auger, and both the Code and the Standard obliged Ahrens to consider reasonably foreseeable misuse of a machine it manufactured.
It was in breach of his duty to take precautions to eliminate or reduce the risk of injury to users of its products.
Morona breached its duty of care to Baker by failing to adopt a system of work that prohibited workers from entering the field bin when the auger was operating.
And given it condoned workers entering bins with the auger operating, it should have carefully inspected the mesh guard to ensure it would prevent a worker’s foot from coming into contact with the moving machinery.
The judge decided both Ahrens and the Moronas should have taken their own precautions to mitigate the danger and prevent the accident and that responsibility for Baker’s injuries should be apportioned 40% to the employers and 60% to the manufacturer.
The damages the defendants must pay to Baker are not disclosed in the judgement. Given his age, occupation and other factors, the total is likely to be upwards of $1.5 million.
Baker v AM Morona & F Morona & NM Morona & SM Morona [2022] VSC 660 Keogh J, 1 November 2022
Categories: Farm worker injury