By Jacob Howes, Lawyer, and Nieva Connell, Partner
In this matter, the Victorian Supreme Court was required to consider the proportionate liability of the worker, employer and field bin manufacturer for an accident involving a Plaintiff suffering a traumatic amputation when his foot came into contact with operating grain auger, in the course of his employment. The Court decided that the manufacturer bore more responsibility than the employer as it failed to property guard and properly warn users of the dangers (which came to fruition), and the worker was not contributorily negligent as he was following the employer’s system of work.
The Plaintiff, Baker, was employed by Morona Farms (Morana) as a machine operator and farmhand, whose work involved transferring recently harvested grain from field bins manufactured by Ahrens Group (Ahrens). The field bin was used by Morana to store rice and included an internal electric auger which sucked the grains from the bottom of the bin and poured it into a truck to transfer to a grain storage facility.
In April 2018, Baker was operating an auger in a field bin on his employer’s farm, when the rice became stuck and stopped flowing through 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 the lower part of Baker’s leg was amputated when it came into contact with the operating auger.
At the time of the injury, Ahrens had altered the design of the field bin which resulted in the guarding being no longer sufficient to prevent something, such as Baker’s foot, coming in contact with the auger while it was operating.
Baker sued his employer and Ahrens, who designed and built the bins, arguing that Ahrens should bear 90% responsibility as a result of the ‘subtle but significant’ alterations made by Ahrens to the guards. Ahrens contended that the system adopted by Morona and Baker, regarding the entering of a field bin while the auger was operating in order to move rice towards the auger, was unsafe and negligent. Quantum was agreed for Baker’s financial loss and general damages arising from the accident prior to trial.
Justice Keogh was not persuaded that contributory negligence on the part of Baker was applicable, particularly as his extensive rice farming experience allowed him to believe the guarding was sufficient, and he was given no specific warning which required to take any special precautions.
Justice Keogh ultimately decided that both Morona and Ahrens should have taken their own precautions to mitigate the danger and prevent the accident, and responsibility for Baker’s injuries was apportioned to 40% to the employer (Morana) and 60% to the manufacturer (Ahrens).
- His Honour considered the ‘risk of harm from coming into contact with an operating auger was notorious’, and Ahrens should have been aware of the risk of altering the guard by removing mesh squares near the uncovered auger created an increased opportunity for a worker’s foot to slip past the guard and come in contact with the auger.
- Ahrens’ duty was not discharged by the warning information on the plates attached to the field bins.
- Ahrens failed to bring the alterations to the design mesh to the attention of Morona, to afford Morona the opportunity to revise the system of work.
- Morona was found to have breached its duty of care by failing to employ a system of work that prohibited workers from entering the field bin when the auger was in operation.
- As an employer, Morana has an obligation to carefully inspect new equipment designs for potential hazards, with the case here to ensure the mesh alternations would prevent a worker’s foot from coming into contact with a moving auger.
- Whilst it was accepted that it was unsafe to enter the field bin with the auger operating, such as what Baker did, an employer who condoned workers entering field bins with the auger operating should have carefully inspected the mesh guard to ensure it would prevent a person’s foot from coming into contact with the moving auger.
- Morana did not undertake a risk assessment in relation to the task and his Honour concluded that the system of work was unsafe and risked eventuation of the sort of injury suffered by Baker.
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