Manufacturer slightly more responsible for incident than employer who permits risky system of work

06 December 2022

Apportionment of liability between manufacturer and employer where equipment and work system led to amputation of lower leg.

In issue

  • With quantum resolved prior to trial, the Victorian Supreme Court was asked to determine the apportionment of liability between the plaintiff, his employer, and a field bin manufacturer. The matter related to the amputation of the plaintiff’s left foot while working in accordance with the employer’s standard work system which was not altered despite changes to equipment by the manufacturer.

The background

Jethro Baker (plaintiff) was a machine operator and farm hand (with extensive rice farming experience) employed by Morona farms (employer). In April 2018, in the course of his employment, he suffered an amputation of his lower left leg. The injury was caused by his foot slipping through machine guarding and into an operating auger in a field bin manufactured by Ahrens (manufacturer).

The field bin was used by the employer to store rice. The field bin included an internal electric auger which sucked the grains from the bottom of the bin and poured it into a waiting truck. The court accepted the plaintiff’s evidence that workers would often climb into the field bins to agitate the contents to prevent the rice from sticking to the walls of the bin and not falling down into the base where the auger could collect it (the work system).

The injury occurred in a relatively new design of the manufacturer’s field bin which had 'subtle but significant' changes which resulted in the guarding being no longer sufficient to prevent a foot, for instance, coming into contact with the auger while in operation.

The decision at trial

The Victorian Supreme Court held that:

  1. The defendants had failed to establish contributory negligence on the part of the plaintiff in circumstances where the plaintiff’s actions were in accordance with the work system of the employer and when he was under significant time pressures. The court found his experience led him to the conclusion the guarding was sufficient in the absence of specific warning, and he was not required to take any special precautions.
  2. Liability was apportioned 40% to the employer for its failure to inspect the mesh guards in the new field bins and allowing the workers to continue with the existing system of work when the field bin had become materially more dangerous by virtue of the new design; and
  3. The balance and bulk of liability (60%) was to be borne by the manufacturer for the mesh guarding’s inadequacy. The court considered it failed to bring the changes to the attention of the employer who could then consider the need to revise its system of work and otherwise failed to warn of risks that there were gaps in the guards that exposed a worker’s feet to the risk of coming into contact with the operating auger.

Implications for you

There are several key takeaways from the decision:

  1. An employer has an obligation to inspect new plant equipment for potential hazards prior to requiring its employees to utilise the equipment, irrespective of the assumption that the plant was familiar to the employer and its employees;
  2. A party, such as an employer, who did not create the hazard but has an opportunity to avoid the incident and injury in its entirety, will bear a significant amount of responsibility for failing to undertake adequate hazard inspections and for failing to act reasonably in the circumstances;
  3. Manufacturer plant warnings should be explicit, easy to determine and adequately address the risks for users; and
  4. An employee’s subjective understanding of the system of work was persuasive, which resulted in a finding of no contributory negligence. Employers’ systems should be direct and well documented to avoid miscommunication.

Baker v AM Morona & F Morona & NM Morona & SM Morona [2022] VSC 660

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