Jethro Baker v AM Morona & F Morona & NM Morona & SM Morona (VSC 2022)

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Key Takeaways

• Manufacturer held liable (60% apportionment) for changing the design of a protective mesh guard covering a field bin auger, which caused amputation to the plaintiff’s left leg.
• Employer also held liable for 40% of plaintiff’s damages, for failing to inspect and develop a safe system to mitigate the risk of injury caused by the manufacturer’s negligent design.
• Employers cannot solely rely on the manufacturer of specialist equipment to properly design and mitigate all risks of injury to its workers.

Brief Facts

The plaintiff was a farm hand/truck and machinery operator employed by the first defendant and employer, Morona. Morona is a primary producer business that grows rice and cereal and raises livestock on a property near Deniliquin, NSW (near the state border with VIC).

On 26 April 2018, the plaintiff was instructed to drive a work truck to empty stored rice from a field bin into the truck to be transported to another receiving facility. The field bin was a large, cylindrical structure used for temporary storage of rice, grain, cereal and fertiliser. It consisted of an internal auger at its base located inside the bin that was covered by a metal mesh guard. The field bin also had a round hatch that allowed access to the inside of the bin by an operator. The field bin was designed and manufactured by the second defendant, Ahrens Group Pty Ltd (Ahrens).

Whilst performing the work task, the rice within the field bin became stuck and stopped flowing through the base, so the plaintiff entered the bin through the hatch to release the rice from the inside. After dislodging the rice and whilst exiting the field bin his left foot went through a gap in the mesh guard and became caught in the auger, causing amputation of the plaintiff’s left foot.

The plaintiff and Morona had previously used older versions of the field bins manufactured by Ahrens which had a different mesh guard covering the auger (the original design). Sometime before 2017 Ahrens made subtle but significant alterations to the mesh guard in the newer field bins such that there was a gap above the uncovered auger (the new design).

Proceedings were commenced in the VSC against Ahrens and Morona seeking damages under the NSW Civil Liability Act 2002 and the Workers Compensation Act 1987 respectively. Our office acted for Morona (on instructions from its workers compensation insurer).

Arguments raised

There was no evidence that Ahrens notified Morona of the changes to the mesh design when it delivered the two field bins with the new design in late 2017, or at any time before the accident

The plaintiff argued that Ahrens should bare the majority of the liability because the new design changes to the mesh guard caused the accident.

In regards to his employer, the plaintiff argued that Morona should have conducted an adequate inspection of the new design field bin in order to identify the alterations and also submitted that the hazardous method that he used to remove the rice was permitted and endorsed by Morona.

Ahrens argued that the system adopted by Morona and the plaintiff (that is entering the field bin while the auger was operating) was unsafe and negligent, and that Morona should bear the majority of the responsibility. It also submitted that there should a significant contributory negligence finding against the plaintiff for his actions.

Judgment

In determining liability against each defendant, his Honour Justice Keogh, noted the following in his decision:

Ahrens

• His Honour accepted that it was common practice in the industry for workers to enter a field bin whilst the auger was operating (despite the inherent dangers).
• It was also reasonably foreseeable for a worker to attempt to dislodge the rice by entering the field bin, given time constraints to complete the work.
• Ahrens should have considered the reasonably foreseeable misuse of the machine, and that it failed to consult relevant members within the industry and perform suitable risk assessments in designing the subject field bin.
• Altering the guard under the new design created an increased opportunity for a worker’s foot to slip past the guard and come into contact with the auger. Ahrens should have fitted the field bins with a mesh guard similar to the original design.

Morona (employer)

• Morona gave no instructions to the plaintiff about how to perform the task of emptying the field bin, simply relying on his experience as a farm worker and machine operator.
• To the extent Morona had a system, it was demonstrated to the plaintiff by his employer performing the task in the same way as the plaintiff was doing at the time of the accident.
• Morona breached its duty of care by failing to adopt a system of work that prohibited workers entering the field bin when the auger was operating.
• Morona should also have carefully inspected the mesh guard to ensure that it would adequately prevent a worker’s feet from coming into contact with the moving auger.

Liability was apportioned 60% to Ahrens, and 40% to Morona (employer). There was no contributory negligence finding against the plaintiff, despite arguments put forward that the plaintiff did not heed the warning signs on the field bin not to enter the bin whilst the auger was operating.

Implications

This case illustrates the importance for employers who use hazardous machinery and equipment to thoroughly assess for injury risks and to develop safe systems of work to adequately address those risks. It is not enough for an employer to rely on the manufacturer to properly design safe equipment, and as this case demonstrated, not enough to expect the manufacturer to highlight any design alterations that may increase the risks of injury.

Discharging this duty may seem difficult, in particular where the employer does not possess the specialist knowledge and experience with respect to the specific parts of the machinery or equipment. As such, it would be prudent for employers to conduct thorough risk assessments and raise any concerns it may have with the manufacturer early on.