In the recently decided matter of Simpson v Alliance Contracting PTY (Ltd) and Friob PTY (Ltd) [2016] WADC 158, the Plaintiff was severely injured in a mine site accident when he made his way under the suspended stemming bucket of a loader and attempted to remove an obstruction by reaching his left hand up into a discharge chute.  At that particular instance the driver of the loader inadvertently engaged the hydraulics of the vehicle allowing the operating sliding gate in the discharge chute to severely lacerate and partially amputate the Plaintiff’s left hand.

In an action against his employer, the employer as Defendant commenced Third Party Proceedings against Friob PTY Ltd (Friob) who had manufactured and supplied the stemming bucket at the request of the Plaintiff’s employer.

The Court was requested to decide whether it was reasonably foreseeable for Friob that a person, such as the Plaintiff, may use a variety of methods to clear a blockage at the gate of the discharge chute in a thoughtless, inadvertent, careless or deliberate manner by inserting a hand or arm into the discharge chute in an attempt to manually clear a blockage.

Numerous expert witnesses were called including but not limited to a Civil Engineer, an Equipment Asset Manager, a Mechanical Engineer and the General Manager of Friob.

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In considering the relevant legal principles, including Section 5A (2) of the Civil Liability Act 2002 (WA), causation, duty of care and the assumption of risk, the Court found as follows:

a)   Friob had a duty of care to manufacture design and supply stemming buckets:
i) that were fit for their intended purposes;
ii) with reasonable care and skill so as to not to create any unavoidable hazards;
iii) in a manner which avoided reasonably foreseeable risk of injury to an employee; and
iv) which avoided reasonably foreseeable risk of injury;
b)   that an Australian Standard:
i) is a guide to, but cannot dictate, the standard of reasonable care required in the circumstances of individual cases;
ii) also represents the consensus of professional opinion and practical experience as to sensible safety precautions and a standard of reasonable conduct;

However, in this case, the risk of injury of the kind suffered by the Plaintiff and the general manner in which it might occur were not reasonably foreseeable for the following reasons, among others:

a)  the stemming bucket was manufactured and designed:
i) for delivering stemming material into a blast hole on a mine site;
ii) for a loader and it was unable to operate in isolation to that loader;
b)  the stemming bucket was hydraulically operated with a sliding gate which was in-built not open or exposed;
c)  the stemming bucket was designed to be used by a single worker and operated by him with controls in the cabin;
d)  it was manufactured to be hydraulically operated by the driver and not by someone within reach of the operative/driver and positioned in the cabin;
e)  the loader operator/driver did not need to be in close proximity to or require access to the hydraulically operated sliding gate in the ordinary cause of operating the stemming bucket;
f)   various warnings were included in an operation and maintenance manual provided by the manufacturer;
g)  the loader operator/driver was required to carry out training modules in safety rules and operating procedures which were common across the mining industry; and
h)  when the stemming bucket was on the ground there was no access to the discharge chute.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Termination day notice to be strictly adhered by employers

In the District Court matter of Reale v Wesfarmers Kleenheat Gas Pty Ltd [2016] WADC 5 and pursuant to the relevant section of the Workers’ Compensation and Injury Management Act 1981 (WA) (Act), Ms Reale (Plaintiff) lodged an election with WorkCover WA (WorkCover) to retain the right to pursue common law damages and subsequently commenced proceedings against her employer, Wesfarmers Kleenheat Gas Pty Ltd (Kleenheat).

The Court was faced with deciding the issue as to whether WorkCover had the power to extend the Plaintiff’s ‘termination day’ as Kleenheat had not provided her with the relevant prescribed statutory notice strictly within the 14-day period as stipulated by section 93O the Act.

The Court accepted that section 93O of the Act had not been complied with and accordingly held that WorkCover had the power to extend the termination date as the time stipulated in the Act had to be strictly complied with by the insurer/employer without exception

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

DON’T MISS THE COMMON LAW LIMITATION DATE IF YOU HAVE A WORKERS’ COMPENSATION CLAIM?

The consequences of missing a Common Law limitation date in your Workers’ Compensation Claim was addressed in the judgment of his Honour O’Neal DCJ in Kent v Mullally [No 2] [2016]  WADC  37.

In this matter Mr Kent was employed as a scaffolder by Thiess PTY Ltd at Alcoa Australia Limited’s Pinjarra Refinery.  Whilst on site working under hazardous conditions, Kent sustained a serious head injury and an injury to his left shoulder.

Kent subsequently consulted with the Defendants’ (who are Compensation Specialists) to seek Workers’ Compensation from his employers insurer.

Kent’s claim was initially correctly lodged and he began to receive weekly income payments. The Defendants’ however omitted to advise Kent that he could commence proceedings against Alcoa, (the owners of the site) which had to be instituted before the expiry of 3 years from the date of his injuries.

By the time Kent became aware that he could sue Alcoa, his claim had become statute barred pursuant to the provisions of the Limitation Act 2005 (WA) i.e. 3 years had elapsed since he sustained the injuries and he could no longer sue Alcoa.

It was clear from the evidence that Kent was never advised of the existence or effect of the three year limitation period due to the Defendants failure to inform him thereof. In the subsequent proceedings against the Defendants Kent alleged that they had breached their duty to exercise reasonable care, skill and diligence in not advising him which was a breach both in negligence and in contract. Kent subsequently commenced proceedings against the Defendants for his loss of opportunity to bring a common law claim against Alcoa, his Honour concluding that the Defendants had in fact breached their duty towards Kent and ordered them to pay his damages.

At A&E Legal, we are specialists in Personal Injury Compensation claims arising from an injury at work.  If you intend to, or have made a Personal Injury Compensation Claim with your employer, its Insurer or WorkCover (WA) and require expert guidance to ensure that you receive the maximum compensation due to you, please contact us for a no obligation free consultation in order for us to assess your claim and advise you accordingly.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.