The Victorian Supreme Court recently considered the apportionment of liability in circumstances in which allegedly unsafe machinery was permitted to be used by an employer, resulting in injuries to a worker. With quantum settled by the parties prior to the trial commencing, only the apportionment of liability was in issue.  

Background

In April 2018, the Plaintiff, Baker, was operating an auger contained within a field bin on a farm owned by his employer, Morona. the field bins were designed and manufactured by Ahrens.  

The characteristics of the rice grain often resulted in the grain getting ‘stuck’ to the sides of field bins, necessitating the worker to manually move the grain closer to the auger. Prior to the subject incident, Baker had entered the field bin to undertake this process, with his left foot falling through a gap in a mesh guard at the base of the bin. Baker’s foot subsequently came into contact with the operational auger, resulting in a traumatic amputation.  

Parties’ Position at Trial

Baker 

Baker contended at trial that Ahrens should be held predominantly responsible for his injuries, in the order of ninety (90) per cent, arguing that whilst mesh guards in older field bins that were in use on his employer’s farm were adequate, alterations made to the design of the mesh guards by Ahrens had caused the accident. With respect to Morona, Baker argued that the alterations to the mesh guard could have been discovered by them on proper inspection, and as such, Morona should be found to have contributed to the circumstances of the incident in the order of ten (10) per cent. Baker submitted that a finding of contributory negligence was not supported by the evidence. 

Morona 

Baker’s submissions with respect to the apportionment of liability were largely adopted by Morona, however some suggestion was made by counsel for Morona that a finding of contributory negligence was open to the court. However, this argument was seemingly not pursued with any real vigour.  

Ahrens 

Ahrens contended that the system adopted by Morona and Baker, wherein the worker manually handled the rice grain in the grain bin whilst the auger was operating, was unsafe and negligent. It further argued that the mesh guard was designed for use only when the auger was not operational. With respect to the apportionment of liability, Ahrens submitted that Morona should bear in excess of seventy (70) per cent, that a finding of contributory negligence against Baker was appropriate, and that its share of liability should be minimal.  

Expert Evidence

Expert evidence relied upon the parties was central to the court’s determination. Baker called Tom Dohrmann, a mechanical engineer and occupational health and safety expert, who opined that the field bin was not an “inherently safe design”, and therefore inconsistent with relevant standards, as it did not prevent the worker from entering the field bin whilst the auger was operational.  

In response, Dr Bruce Field was called by Ahrens, who took the converse view to Mr Dohrmann, asserting that the design complied with the relevant standards, and that further protective measures were unnecessary.  

Decision

With respect to Ahrens alleged breach of its duty of care, Keogh J opined that the harm suffered by Baker was reasonably foreseeable for a number of reasons, including but not limited to: –  

a. The risk of harm from coming into contact with an operating auger was ‘notorious’; 

b. Documentation before the court established a history of, and propensity for, farm workers to intentionally or accidentally approach an auger in operation; 

c. It was common practice for workers to enter field bins whilst the auger was operational, and that there was motivation and opportunity for workers to follow this practice; and 

d. Altering the design of the mesh guard resulted in an increased opportunity for an operator’s foot to slip and come in contact with the auger.  

Thus, Keogh J concluded that a reasonable manufacturer in the position of Ahrens would have taken precautions to mitigate the risk of a not insignificant harm. 

Insofar as Morona’s alleged responsibility for the circumstances of the subject incident, Keoh J opined that it had also breached its duty of care to Baker by failing to adopt a system of work that prohibited a worker from entering the field bin whilst the auger was in operation.  

Keoh J further opined that a conclusion of contributory negligence on the part of Baker had not been established on the evidence presented.  

Thus, Keoh J apportioned liability in the amount of forty (40) per cent to Morona, and sixty (60) per cent to Ahrens.  

Conclusion

The Victorian Supreme Court’s decision in Baker confirms that manufactures of machinery owe a duty of care to the operators of that machinery, particularly in respect of the design of the equipment. It also serves as a reminder that the factual matrix of workplace incidents, particularly those involving machinery, must be examined closely in order to determine potential parties to a proceeding. 

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