In the recently decided matter of Simpson v Alliance Contracting PTY (Ltd) and Friob PTY (Ltd)  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.
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.
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