Baker v Am Morona & F Morona & NM Morona & SM Morona
[2022] VSC 660
•2 November 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT BENDIGO
COMMON LAW DIVISION
CIVIL CIRCUIT LIST
S ECI 2021 00805
| JETHRO JAMES BAKER | Plaintiff |
| v | |
| AM MORONA & F MORONA & NM MORONA & SM MORONA | First Defendant |
| and | |
| AHRENS GROUP PTY LTD | Second Defendant |
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JUDGE: | KEOGH J |
WHERE HELD: | Bendigo |
DATE OF HEARING: | 10–12 October 2022 |
DATE OF JUDGMENT: | 2 November 2022 |
CASE MAY BE CITED AS: | Baker v AM Morona & F Morona & NM Morona & SM Morona |
MEDIUM NEUTRAL CITATION: | [2022] VSC 660 |
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PERSONAL INJURY — Worker suffered traumatic amputation when foot came into contact with operating grain auger — Gap in auger guard — Claims against employer and manufacturer — Contributory negligence — Apportionment — Civil Liability Act 2002 (NSW) Part 1A — Suosaari v Steinhardt [1989] 2 Qd R 477.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | B Dooley SC with M Fogarty | Arnold Dallas & McPherson |
| For the First Defendant | R Kumar | TurksLegal |
| For the Second Defendant | R Cheney SC | Clyde & Co |
HIS HONOUR:
The plaintiff, Jethro Baker, was employed by the first defendant (‘Morona’) as a machine operator and farmhand. Baker’s work often involved transferring recently harvested grain from field bins used on the Morona farms as temporary storage into a truck that he then drove to a grain storage facility. The field bins were designed and manufactured by the second defendant, Ahrens Group Pty Ltd (‘Ahrens’).
An internal auger was used to transfer grain from the field bins. The system depended on grain falling or flowing to the base of the bin where the uncovered end of the auger was located.
The circumstances that are the subject matter of this proceeding occurred in April 2018 when Baker was operating an auger in a field bin on his employer’s farm in order to transfer rice to a truck. A characteristic of rice grain is that it is coarser or rougher than other grains, making it more prone to ‘stick’ to the sides of a bin or ‘bridge’ across a bin, particularly in the area of the cone at the base of the bin. When this occurred, it was sometimes necessary for a worker to move the remaining grain to the vicinity of the auger so that the bin could be emptied. On the occasion he was injured, the rice became stuck and stopped flowing through the auger. To remedy the problem, Baker entered the field bin to move the grain. In the process, his left foot went through a gap in a mesh guard at the base of the bin and came into contact with the operating auger. Baker’s foot was grabbed by the auger, resulting in traumatic amputation of the lower part of his left leg.
The parties settled quantum before the trial commenced. In issue at trial was the proportionate liability of each party for the accident.
Baker’s position at trial was that Ahrens bore the majority of responsibility for his injuries. He argued that the mesh guards in older field bins manufactured by Ahrens that were in use on the Morona farms were adequate, and that subtle but significant alterations made by Ahrens to the guards in two new bins delivered to Morona in late 2017 were the cause of the accident. Baker argued the alterations should have been discovered by Morona on proper inspection, but were not such that a reasonable worker in his position would have observed them. He argued that the system he adopted to remove grain from the field bin when the accident happened was the system used or countenanced by Morona, and was perfectly safe in the older field bins that had adequate guards. He submitted that liability should be apportioned 90% to Ahrens and 10% to Morona, with no finding of contributory negligence.
Morona largely adopted the position contended for by Baker. It made a relatively faint submission in final address that a finding of contributory negligence was open.
Ahrens argued that the system adopted by Morona and Baker, that involved entering a field bin while the auger was operating in order to move rice towards the auger, was unsafe and negligent. It argued the mesh guard was a platform for use by workers when performing necessary functions inside the bin when the auger was not operating. It submitted Morona should bear in excess of 70% liability for the accident, there should be a finding of contributory negligence against Baker, and that any share of liability borne by it should be modest.
Evidence
Evidence was given at trial by Baker and two mechanical engineers, Tom Dohrmann, called by Baker, and Dr Bruce Field, called by Ahrens.
Background
The background evidence was given by Baker, and was not contested. I adopt the evidence as my findings of fact.
Baker is 35 years old. After completing year 12, he worked at a brickyard, on dairy farms and at a Coles store. In 2009 he started work on a rice and straw farm in Coleambally in south-west New South Wales. His work involved driving tractors, baling hay, driving trucks and operating machinery.
There were portable field bins manufactured by Ahrens on the farm, and at times Baker was required to perform the work of transferring grain from the bins into trucks. The rice was sticky and very abrasive, and there were occasions when it stopped flowing through the auger. The amount of rice remaining in the field bin when it became stuck could range from 200 kilograms to a tonne, or more. When that occurred Baker walked around the bin, banging and kicking it to dislodge the rice, and if that failed he climbed into the bin while the auger was operating to get the grain moving in order to empty the bin. There was a safety guard above the auger, and he never had any problems doing the work this way. He saw fellow workers and contractors doing the same thing.
From early 2015 to early 2017 Baker worked for Mathoura Bulk Grain. His work involved carting grain and fertiliser, driving spreaders, loading and unloading trucks, and mixing fertiliser and stockfeed. During the rice harvest, which lasted six to eight weeks, he carted grain from farms to the storage bunkers at Mathoura. Usually the farmer or a farmhand would operate the auger to transfer grain from the field bin to his truck. About six or seven times a season he observed farmers or contractors get into a field bin while the auger was operating to clear remaining rice that had become stuck.
Baker started working for Morona in March 2017 at the start of the rice harvest season. His work involved truck driving, carting grain, hay and fertiliser, driving machinery to do land forming, watering, stock work and labouring. Morona employed four or five full-time workers including him. Farm work was also done by Nicola (‘Nick’) and Steven Morona, and their children when they were home. Morona operated five farms around Deniliquin and a station just outside of Hay. Morona grew hay and cereal crops including rice, wheat, barley, canola, oats and fava beans, and had some livestock. Morona had a range of machinery including tractors, laser buckets, disc ploughs, air carts, tippers, drop-deck trucks, spray rigs, scrapers, backhoes, headers, chaser bins and field bins.
Baker was not given any training, instructions or particular directions when he started work at Morona, other than in relation to land forming and stock work which were unfamiliar to him. There was nothing about harvest work that he was not familiar with when he started at Morona.
Before rice was harvested the moisture level in a sample of grain from a field was tested to ensure it was at the right level. The headers then began stripping the rice in the field. Morona operated two headers that usually worked together, unless they were in the process of moving to another farm. The harvested grain was transferred from the header into a chaser bin that was then emptied into a field bin. One worker drove the header, and another the chaser bin.
A header would usually fill a chaser bin in around 20 to 30 minutes. It took two and a half chaser bins to fill a field bin. A single field bin filled a truck.
Morona had four field bins. The bins were portable and were moved to where harvesting was taking place.
After a truck was filled with rice it was driven from the farm to the SunRice bulk receiving facility in Deniliquin to be unloaded. It took between 15 minutes and an hour to drive from the various Morona farms to the SunRice facility. Some mornings in harvest season there might be 40 trucks waiting to be unloaded, and during the day there could be up to 10 trucks in line. Drivers could be waiting in line for over an hour, sometimes up to four or five hours, to unload. Unloading took about 20 minutes. Baker would usually do four or five trips from the farm to the bulk receiving facility each day.
It was necessary for the truck driver to transport and unload the rice as quickly as possible because everything stopped at the farm if the chaser bins and field bins were all full. If that happened Baker said ‘you’re losing time, you’re losing money’. This was something that was spoken about a lot at work. There were occasions that everyone had stopped work by the time Baker got back to the farm, and they were not very happy.
Morona did not give any direction or instruction to Baker about what to do if the rice became stuck, or that he should not enter the field bin with the auger operating. He adopted the same system that he and others had used at his previous workplaces. Baker saw Nick Morona get into a field bin while the auger was operating on a few occasions, and Steven Morona do it once. Occasionally, there was a broom or shovel at the field bin that could be used to help move the grain towards the auger.
Field bin
A field bin is a cylindrical metal structure sitting on a frame with retractable wheels. There are openings at the top through which the bin is filled, and a cone at the base into which the contents are intended to flow when it is being emptied.
Field bins are used as temporary on-farm storage for harvested grain and cereal, and fertiliser.
Augers are used to empty field bins. Ahrens field bins were manufactured with an in-built auger. The field bin augers were powered by the power take-off (‘PTO’) of a tractor parked close by.
The auger ran from the base of the field bin along the angle of the cone rising external to the bin to a point above the receptacle that was to be filled, in this case a tipper truck. For almost all of its length the auger was encased in a metal barrel. However, at the base of the bin it was exposed so that grain could enter and be lifted by the rotating action of the auger. The photograph below shows the Ahrens field bin on the Morona farm. To the left of the field bin is the tractor that was providing power to the auger via its PTO. To the right is the truck that was being filled with grain from the bin.
Two observation portals located on the side of a bin cylinder allowed the operator to observe the level of grain in the bin. The following photograph also shows the hatch, located on the upper edge of the cone roughly opposite the auger, that allowed access to the inside of the bin. The hatch door opened inwards. When Baker was standing on the ground the inner edge of the hatch opening was at about the level of his waist or lower chest.
The stickers or plates fixed to the outside of the field bin cylinder provided information to users that included the following warnings: ‘Do not enter this unit while it is being filled or emptied or if it has grain in it’ and ‘Keep clear of telescopic shaft, main drive shaft and discharge auger at all times while the field bin and tractor are operating’.
Mesh guard
When Baker started work for Morona there were two older Ahrens field bins used on the farm. The photograph below depicts the mesh guard above the uncovered end of the auger in one of the older Ahrens bins owned by Morona (‘original design’). The dimensions of the mesh squares of the guard are 100mm x 100mm. The diameter of the auger barrel is 270mm, and the diameter of the auger flight or blade is 250mm.
Morona purchased two new field bins from Ahrens in late 2017. Some years before it delivered the new bins to Morona, Ahrens altered the design of the mesh guard around the auger. The next two photographs show the altered design of the mesh guard in one of the new field bins in which Baker’s accident occurred (‘new design’).
The design of the mesh guard was altered by removing the four middle mesh squares from the third row at the auger end, and the two middle mesh squares from the fourth row. As a result of the altered design there was a gap above the uncovered auger, and the two innermost mesh squares on the fourth row were unsupported on one edge. The mesh square to the left was found to be bent down immediately after Baker’s accident. It is not known whether this occurred during or some time before the accident.
Ahrens made the change to the new design in order to leave space to accommodate a device called an auger choke that was fitted on top of the barrel at the bottom end of the auger. Auger chokes are relevant to field bins used to store fertiliser. Ahrens field bins that were to be used for grain and cereal were not fitted with auger chokes. Documents discovered by Ahrens show that about two-thirds of the field bins it manufactured were for use with grain and cereal and did not have auger chokes fitted. The new design was used in all bins Ahrens manufactured, irrespective of whether they were to be used for fertilizer or grain. The new field bins purchased by Morona in late 2017 were to be used for grain and cereal, and were not fitted with auger chokes.
There is no evidence that Ahrens brought the changes it had made to the mesh guard design to the attention of Morona when it delivered the two new field bins, or at any time before Baker’s accident. Baker and Ahrens both put in issue whether Morona inspected or undertook any assessment of the new field bins, including the mesh guard, prior to their use. In that regard Morona sought to rely on the following interrogatory asked of it by Baker, and the answer given by Nick Morona:
State whether as at the date, the first Defendant had a system for inspections of the guard and, if yes, describe the system.
I object to answering this interrogatory on the basis that it is vague, too wide and unclear. Under cover of objection, I say that it was visually inspected by me upon purchase.
The interrogatory answer is vague and does not clarify in any meaningful way what inspection was undertaken of the mesh guard by Morona before the accident, or what was found or observed on inspection. Morona chose not to call a witness to give viva voce evidence explaining the matter. There is nothing that I can conclude on the basis of the interrogatory answer other than Nick Morona saw the guard after the new field bins were delivered by Ahrens.
It is likely Baker used the new Ahrens field bins for grain harvests in late 2017 and the 2018 rice harvest. Baker said he did not notice the changes to the design of the mesh guard before the accident. There is no evidence the design changes were brought to Baker’s attention before the accident by either defendant.
After the accident there were two separate modifications to the mesh guard design by Ahrens. The first modification was made in response to an improvement notice issued by SafeWork NSW (‘modified design’). The modifications removed the gap in the guard above the uncovered auger.
The accident
Shortly before the accident Baker parked his truck adjacent to one of the new Ahrens field bins, and engaged the tractor PTO in order to operate the auger and transfer the contents of the bin into the truck.
Baker said that before the field bin was empty the flow of rice through the auger reduced and was down to a trickle. He tried banging and kicking the outside of the field bin, but this did not help. He opened the hatch and saw what he estimated was a bit over 500 kilograms of rice left in the cone towards the bottom of the bin. He could not recall whether he had an implement of any sort with him, but said he was not provided with any special implements by Morona to use in the event that the grain became stuck. Baker had to get the bin emptied because they were about to move it to a new farm, and it could not be transported with grain in it. Baker got into the bin to move the rice grain towards the auger.
Baker agreed augers were a potential source of danger on farms, and that it was notorious they could be a source of serious injury. However, he said the mesh guard meant that getting into the bin with the auger operating was perfectly safe. He said he assumed it was perfectly safe because he understood the guard covered the auger. In cross-examination Baker said ‘I believed the safety guard was fully operational … I had no — no reason to query it’.
Baker said in cross-examination that his memory of the circumstances of the accident was limited. He agreed that as best he could recall the following description pleaded in the statement of claim filed on his behalf was accurate:
The Plaintiff thereafter opened the access hatch at the bottom of the field bin, entered the field bin and commenced to move the rice towards the auger and ensure the blockage was cleared. Having cleared the blockage, the Plaintiff then turned to climb out of the field bin and, as he did so, his left foot came into contact with the auger and he thereby sustained injury.
He said immediately before the accident he was standing on the mesh guard, having cleared the rice into the auger. He could not recall the mesh guard then being obscured by rice. Baker was asked about the content of a statement he made about the incident in 2019 that included ‘and I was about to exit the silo when I felt my toe catch something and I spun around onto my back’. He said he now could not recall whether that was what occurred, and that he just remembered feeling a bump. It was put to Baker that one reason he felt rather than saw his foot make contact with the auger was that he was looking forward at the access hatch, and his foot was behind him when it got caught in the auger. Baker said he could not recall.
It was put to Baker in cross-examination that there were plenty of places on the mesh guard where he could have safely put both feet in the process of leaving the silo. Baker responded that it was a big safety guard and that he thought that he was safe.
Baker was cross-examined on the basis that there were two alternative methods he could have used to remove the residual rice from the field bin. First, it was put that while standing in the open hatch he could use an implement, such as a shovel or broom, to move the rice towards the auger. Baker said it would be a stretch to reach to the other side of the cone, and that you would have to perform the work with your arms outstretched and could easily do damage to your shoulders or neck. He said your legs could go out from under you, and you could hurt yourself a hundred different ways trying to do the task in that manner.
Dohrmann was asked to comment on this method of clearing the rice, and said:
I think taking action in that way, standing from the outside of the field bin and leaning through it and reaching with a tool, um, would've been difficult. Um, I'm not saying that you couldn't do it. Um, but the – the postures and the - and the forces involved would've required significant stretching, um, and that's when you start to get into, um, potentially hazardous manual handling. Um, so, yeah, it – you could do it, but it would've been difficult.
Dohrmann said that although he had some experience and expertise in ergonomics, he was not a certified ergonomist.
The second alternative method put to Baker was to turn the auger off before entering the bin. He explained this would involve going to the tractor to disengage the PTO lever and turn off the tractor engine, returning to the bin to get inside and move the rice before going back to the tractor to turn the auger on again. He said it would be necessary to turn the auger off two or three times in order to clear the rice. I understood Baker to estimate this method would take an additional 30 to 45 minutes and that it was not an option because he ‘had a job to get done’. It was put to Baker that the method could be used if another worker was present to disengage the auger before he climbed into the bin, and he responded:
No, because the auger would have still had to be running to clear the grain and I – it was just the way we done it and I wouldn't have even thought about it. It's a safe – safeguard, it's safe - safe to stand on.
Baker reinforced that the rice is sticky, and that once you start it moving you have to keep it moving, otherwise it would stick again.
Baker was cross-examined about the warnings on the plate attached to the field bin. He said the warning ‘[d]o not enter the unit while it is being filled or emptied or if it has grain in it’ was common sense, and related to risks from gases, grain drowning, or being crushed by grain. He said he did not believe the warning was relevant to what he was doing when the accident happened. Baker was asked about the warning on another sticker attached to the field bin, ‘[k]eep clear of telescopic shaft, main drive shaft and discharge auger at all times while the field bin and tractor are operating’, and he said:
But as I read that, is PTO main drive shaft, one running underneath and the, um, discharge auger's – yeah, at the top of the auger and in the bottom of the, um, under the safety guard – the, um, in the bottom of the, ah, auger bin – field bin.
Relevant regulatory documents, standards and reports (‘industry documents’)
Code of Practice
In 2005 WorkCover New South Wales produced a Code of Practice titled Safety Aspects in the Design of Bulk Solids Containers including Silos, Field Bins and Chaser Bins (‘Code’).
The Code defined ‘guard’ to mean a device that prevents or reduces access to a danger point or area.
In relation to risks the Code included:
Experience has shown that significant risks when using bulk containers include the following:
…
• equipment and machinery, such as augers or conveyors used with the container (eg lack of suitable guarding).
The Code was intended to address the identified risks.
The factors relevant to risk assessment identified by the Code included the nature of access by persons to the interior of containers, the method of loading and unloading, including use of ancillary plant such as augers, and guarding of ancillary machinery. The Code stated:
The conclusions from the risk assessment process provide a basis for determining control measures that are suitable and reasonably practicable for each type and design of bulk container and ancillary plant.
In relation to implementation, the Code stated:
The advice in this code should be considered in terms of applying the ‘hierarchy of control’ to each specific design, by focusing firstly on elimination [by keeping people from being exposed to the hazard], then isolation (such as guarding) and engineering controls, and finally on [personal protective equipment].
…
The provision of advice on operator training or induction, while essential, does not make an unsafe design safe to use. Regard must be had to the fact that operators may not at all times comply strictly with safety instructions. Designers need to take into account the potential for inadvertent misuse, deliberate misuse, operator inattention or carelessness. The OHS legislation also imposes obligations on the users of bulk containers, and it will help end users if containers are designed in a manner that assists safe use.
Addressing risks associated with access by persons to parts of containers, the Code stated:
Risks during access that need to be assessed are the potential for:
…
• dangers of the confined space inside the container and other plant areas (eg. the boot pit of a silo)
• entrapment in ancillary plant (such as an auger).
The Code stated where possible the measures to eliminate or control risks should involve reducing the need for access and frequency of access to containers, including by providing warning signs about the hazards associated with access, and preventing unauthorised access by suitable guarding. The Code noted access to hatches may be necessary for operational functions, for instance to loading and unloading areas. The Code noted loading and unloading may present risks relating to access when operating plant. In that regard the Code stated: ‘Plant used for loading and unloading, such as augers, should have appropriate guarding (see advice in chapter 9).’ Relevantly in chapter 9 the Code stated:
All ancillary plant, such as augers, conveyor drive shafts and pulleys, should be guarded to prevent anyone coming into contact with moving parts of the machinery. Further advice is provided in AS 4024.1 - Safeguarding of machinery Part 1: General principles.
The Code stated ‘[w]arning signs providing administrative controls for confined spaces and other hazards … should be displayed where relevant to the control measures chosen’.
AS 4024: Safety of machinery
Part 1201 of the Australian Standard for safety of machinery titled General principles for design–Risk assessment and risk reduction (‘Standard’) was referred to in the Code and by both expert witnesses. The primary purpose of the Standard is to provide guidance to designers to enable them to design machines that are safe for their intended use. The scope of the Standard is described in the following terms:
It specifies principles of risk assessment and risk reduction to help designers in achieving this objective. These principles are based on knowledge and experience of the design, use, incidents, accidents and risks associated with machinery.
The Standard includes the following relevant definitions:
machinery
machineassembly, fitted with or intended to be fitted with a drive system consisting of linked parts or components, at least one of which moves, and which are joined together for a specific application
inherently safe design measure
protective measure which either eliminates hazards or reduces the risks associated with hazards by changing the design or operating characteristics of the machine without the use of guards or protective devices
safeguarding
protective measure using safeguards to protect persons from the hazards which cannot reasonably be eliminated or risks which cannot be sufficiently reduced by inherently safe design measures
information for use
protective measure consisting of communication links (for example, text, words, signs, signals, symbols, diagrams) used separately or in combination, to convey information to the user
intended use
use of a machine in accordance with the information for use provided in the instructions
reasonably foreseeable misuse
use of a machine in a way not intended by the designer, but which can result from readily predictable human behaviour
safeguard
guard or protective device
guard
physical barrier, designed as part of the machine to provide protection
The Standard sets out a strategy for risk assessment and risk reduction by designers of machinery. The stated objective of this process is the greatest practicable risk reduction. The Standard notes:
The ideal application of these principles requires knowledge of the use of the machine, the accident history and health records, available risk reduction techniques, and the legal framework in which the machine is to be used.
The Standard contemplates that the process of machinery design should begin with a risk assessment that is based in part on user input, which is information received by the designer from either the user community regarding the general intended use of the machine, or from a specific user. Protective measures that can be implemented by the designer to reduce the risk are in a hierarchy commencing with inherently safe design measures, followed by safeguarding and complementary protective measures, and finally information for use. Further protective measures may be implemented by the user of machinery.
Information for the risk assessment process includes the following information related to the experience of use:
1) any accident, incident or malfunction history of the actual or similar machinery;
2) the history of damage to health resulting, for example, from emissions (noise, vibration, dust, fumes, etc.), chemicals used or materials processed by the machinery;
3) the experience of users of similar machines and, whenever practicable, an exchange of information with the potential users.
The Standard states that risk assessment begins with the determination of the limits of the machinery, and that ‘[u]se limits include the intended use and the reasonably foreseeable misuse.’ The Standard identifies examples of unintended behaviour, or reasonably foreseeable misuse, to include:
― behaviour resulting from taking the "line of least resistance" in carrying out a task,
― behaviour resulting from pressures to keep the machine running in all circumstances,
Part 1802 of the Standard deals with safety distances and safety gaps to prevent machinery danger zones being reached by lower limbs. That part of the Standard states:
Sometimes reasonably foreseeable reach situations can occur, e.g. while persons—
(a) try to use a foot to clean out discharge or feed openings;
Dohrmann relied on the requirement in part 1802 of the Standard when he stated there must be a safety distance of not less than 650mm to the relevant machinery, where guard openings are in the range of 80–95mm. Dr Field said a designer should only have regard to Part 1802 if the criteria in Part 1201, which he said is the ‘master standard’, are not satisfied.
Reports and articles about auger injuries on farms
Dohrmann referred to a number of reports of auger injuries, including a report by SafeWork NSW dated 15 February 2006 titled Auger amputations prompt SafeWork harvest safety warning. The report detailed two incidents related to grain harvesting that resulted in workers suffering limb amputations caused by augers. The report included the following comment by the SafeWork NSW director:
“Safety guarding is inexpensive, easy to install and reduces access to dangerous areas of a machine,” Mr Williams said.
“Grain auger guards must protect people while also allowing grain to flow.
“SafeWork NSW recommends mesh up to 100mm x 100mm apertures to enable grain to flow at a sufficient rate into the grain auger while maintaining an acceptable level of safety when used with an inner guard.
“These recent incidents at Leeton and Lake Cargelligo demonstrate how a lack of guarding can result in serious injury or death.
The report included the following recommendations for auger safety during harvest:
• Ensure the drive source is isolated, locked out and tagged at the power source before carrying out maintenance, repairs, installation and cleaning or before clearing a grain blockage
• Ensure rotating screws, intake areas and belts are adequately guarded in augers
• Ensure users receive adequate training, supervision and instruction in the safe use of augers.
Also commented on by Dohrmann was an article published in 2005 titled An Insight into the Grain Auger Injury Problem in Queensland, Australia. In reference to better bin design, the authors of the article said:
It was pointed out that most bins retain some grain or animal feed that has to be manually forced out of the bin, and that it was common for people to enter bins to dislodge and direct grain into the auger. It was agreed that more work needed to be done to make bins safer for operators. Increasing the slope of the bottom (to reduce grain sticking), sensing devices to shut down the auger if someone enters the bin, and foot-proof shields were some of the suggestions made for improving safety.[1]
The authors’ conclusions included:
The auger’s flighting was involved in 60% of claims, but about half of the augers in use today are not shielded, and most are likely to remain in use for many years. While it is recognized that shields increase the chance of grain blockage and make maintenance and cleaning more difficult, the use of so many unshielded augers poses an unacceptably high risk of injury to people. There is clearly a need for better shields and the will to enforce the safeguarding of existing augers.[2]
[1]A. Athanasiov, M. L. Gupta and L. J. Fragar, ‘An Insight into the Grain Auger Injury Problem in Queensland, Australia’ (2006) 12(1) Journal of Agricultural Safety and Health 29, 38.
[2]Ibid 41.
Expert evidence
Dohrmann is a registered professional engineer with experience relevant to ergonomics and occupational/work health and safety.
In Dohrmann’s opinion the likelihood of the accident occurring would have been greatly reduced if the mesh guard in the field bin at the time was the original design or the modified design.
In his report, Dohrmann noted that he did not know whether the guard was designed to take the weight of a person or if it was capable of doing so. During cross-examination, Dohrmann said:
… I think [whether the guard should be designed to take the weight of a person] goes to the question of whether or not its primary function was that of a platform or a guard, and if you consider – I've seen the engineering drawings, um, of that particular component that are clearly referred to as a mesh guard. So I believe it was designed as a guard. But guards can be used as platforms. It – you know, they can be both. Um, I think the primary use for that component was a guard. …By virtue of its positioning and its orientation, workers probably tended to use it as a platform.
Dohrmann said the change from the original design to the new design was ‘subtle but significant’ and it was likely that the new design had the effect of weakening the structural integrity of the mesh guard.
In cross-examination, Dohrmann said it is ‘ill-advised to enter a silo with the auger running’ and doing so for the purpose of clearing remnant rice with feet was hazardous.
After reviewing the industry documents, Dohrmann said that prior to the accident an employer could not reasonably claim to be unaware of relevant information relating to augers. In cross-examination, Dohrmann said his opinion was based in part on the fact that auger injuries were common in the rural sector and, in his experience, well known to those who work in the sector.
Dohrmann said an inherently safe design would not have allowed the operator to enter the field bin while there was an inherent risk in getting in there. He said ‘the access hatch wasn’t designed to prevent access while the auger was running’ and there ‘was nothing stopping the auger running when the hatch was open.’ He said Dr Field’s interpretation of the design and risk assessment process set out in Part 1201 of the Standard ‘relies on the third step in the risk assessment process, which is information for use, to validate the first step which is inherently safe design’. He said this is a misunderstanding of the Standard.
In response to Dr Field’s comment that AS 4024 does not apply to machines when they are not operating Dohrmann said:
… that's nonsense, essentially. Um, and either way, the machine was running at the time of the incident, notwithstanding the fact that there was a danger at the bottom of that, um – of that field bin even when the machine was not running which was the sharp blades of an auger. Um, now, the – the machine was designed to allow people in, um, and they obviously knew that that was not inherently safe, and so they stepped down to the next level which is safeguarding. And the safeguarding that they implemented at the time of the incident, um, was not adequate.
Dr Field is a professional mechanical engineer with experience as a research and development engineer involved in design particularly of on-farm equipment used in the wool industry. He has been employed in university teaching and research roles as a specialist in agricultural and industrial machine design. Dr Field has also been a casual worker on a family mixed farm enterprise, with roles that included the use of field bins.
Dr Field said that if the field bin was being used as intended there was no need for workers to be inside the bin while the auger was operating. On that basis he concluded the field bin achieved inherently safe design in accordance with the standard, and it was unnecessary for a designer to take further protective measures, such as guarding the auger. Dr Field’s opinion was based on a construction that meant when the auger was not operating the field bin was not a machine as defined in the Standard, and a conclusion that the mesh guard above the auger was not a guard as defined, but a platform.
Dr Field moderated this opinion to a degree in his report and in viva voce evidence. In his report he said:
Ideally it should also provide guarding if a worker is present inside the subject bin with the auger running, although the operation of the subject bin does not require this concurrence.
In cross-examination Dr Field was taken to Ahrens’ documents that described the mesh guard as a guard, and was asked:
Having heard that answer, would you accept that this is not a platform, but a steel mesh guard as Ahrens say it is?---I certainly do.
And so that in terms of viewing this guard as whether it's safe or not, it's appropriate to look at it as a guard which is designed to guard against the moving auger, is it not?---Yes.
He accepted the guard was not a complete and thorough guard, and that in the end it did not perform its function adequately. However, Dr Field would not concede the guard was defective, and said, ‘[i]t was as good as it could be in the circumstances’. Dr Field did accept that the guard design in the older Ahrens bins was safer, but would not accept that it was a better design.
It was put to Dr Field that the Code identified that augers in containers such as field bins need to be suitably guarded to minimise the probability of a worker’s foot coming into contact with an auger, and he agreed. He also agreed that the Code directed designers to take into account the potential for inadvertent misuse, deliberate misuse, operator inattention and carelessness.
In his report, Dr Field expressed the view that if farm workers were regularly entering field bins with the auger operating it would indicate serious shortcomings both in the farming practices and in safety protocols. He said workers should be provided with a safe protocol and a suitable tool, such as a hoe, to clear rice from the bin when it inevitably became stuck.
I do not accept Dr Field’s primary position that the field bin as designed by Ahrens was inherently safe. I accept the following criticisms of Dr Field’s opinion by Dohrmann. First, there was nothing about the design of the field bin that prevented access to the inside of the bin while the auger was operating. Second, that Dr Field inappropriately relied on the information for use to validate inherently safe design. Third, that consistent with the description given to it in Ahrens’ documents and with information contained in the industry documents, the primary function of the mesh guard was to act as a guard rather than a platform. Dr Field’s primary opinion took no account of the information available to Ahrens in the industry documents that I have set out above, or information that would have been available from users of field bins such as Morona, about the practice of workers getting into bins with the auger operating in order to clear rice that was stuck. Nor did Dr Field’s primary position take into account, contrary to the express requirements of the Code and the Standard, the potential for inadvertent misuse, deliberate misuse, operator inattention or carelessness in the use of the field bin.
Relevant provisions and principles
The substantive law of New South Wales applies to the assessment of liability.
Liability of Morona is to be determined on common law principles. It is uncontroversial that the non-delegable duty owed by Morona to Baker included a duty to devise, implement and enforce a safe system of work and to provide safe plant and equipment to carry out that work.
A manufacturer of machinery owes a duty of care to a user of the machine to take reasonable care to prevent it causing injury.[3] The degree of danger associated with use of a machine and the seriousness of injury that may eventuate are relevant to the diligence and care required of a manufacturer.[4] The manufacturer of a machine must, particularly if the machine is extremely dangerous or the magnitude of injury that may result from its use is great, take into account the possibility that by inadvertence or carelessness potential users of the machine may fail to take proper care for their own safety.
[3]Dovuro Pty Ltd v Wilkins & Ors (2003) 215 CLR 317, 328 [29] (McHugh J), 367–8 [156]–[160] (Hayne and Callinan JJ), 372 [177] (Heydon J).
[4]Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514, 523 (Starke J); Fitzpatrick v Jobs Engineering & Ors [2007] WASCA 63, [39] (Pullin JA).
In Suosaari v Steinhardt, Cooper J, with whom the other members of the Court agreed, said in relation to the standard of care owed by a manufacturer:
A manufacturer is under a duty not to put a product into circulation without bringing to it, in the case of machinery, the mind of a reasonably competent engineer to ascertain whether the design of the product is safe. If a competent engineer would have discovered the defect as one which unreasonably exposed the user to risk then the duty of the manufacturer is twofold: firstly, to actually see the risk, secondly, to take all reasonable steps to eliminate or minimise it, or if it cannot be eliminated or minimised, to clearly warn the user of its existence. A manufacturer who fails to take both of these steps breaches the duty of care owed to the user of the product.[5]
[5][1989] 2 Qd R 477, 489–490 (citations omitted).
The duty of a designer and manufacturer of a machine to users was considered by Evans J in Barnes v Toll Transport Pty Ltd:
95. Steelbro, as the designer and manufacturer of the sidelifter, was subject to a duty to users to take reasonable care to avoid causing injury to them, Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317, McHugh J at par[28] and Hayne and Callinan JJ at par[156]. In the particular circumstances of this case Steelbro owed a similar duty as the supplier of the sidelifter…, Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 pars[78] – [82]. In the context of this duty the term “user” encompasses Toll and employees of Toll who used the sidelifter in the course of their employment…, Sousaari v Steinhardt [1989] 2 Qd R 477, Cooper J, agreed with by Connolly and Ryan JJ at 487. In the same case Cooper J, again agreed with by Connolly and Ryan JJ, said at 489:
“Where the risk is real, although the incidence of it may be low, the designer is under a duty to minimise the risk by taking all reasonable steps to eliminate it, particularly where the alteration to the design is simple and inexpensive. … The manufacturer is under a duty to take care to reduce the risk of injury as far as he reasonably can, and to eliminate it, if reasonably possible, when the product is being used to perform its usual or foreseeable function.”
96. In designing and manufacturing the sidelifter, Steelbro was required to pay regard to the possibility of inadvertence on the part of a user. As Dixon CJ observed in Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 324:
“It may well be true that in every case, some carelessness, inattention or folly on the part of the workman would explain the fact that he had become involved in the machine. But that is nothing to the point. By definition a machine is dangerous if it exposes persons guilty of inadvertence, inattention, carelessness or folly to danger.”[6]
[6][2011] TASSC 25.
Baker’s claim against Ahrens is to be determined in accordance with Part 1A of the Civil Liability Act 2002 (NSW) (‘Act’). The principles relevant to breach set out in the above authorities apply in this case, subject to any modification of the common law by Part 1A of the Act.
Contributory negligence alleged by Ahrens is to be determined in accordance with ss 5R and 5S in Part 1A of the Act. Section 5R reads:
5R Standard of contributory negligence
(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose—
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
In determining whether a plaintiff has been contributorily negligent, consideration is given to whether the plaintiff’s failure to take precautions should be characterized as ‘mere inattention or inadvertence’ or negligence, in light of the factual circumstances and conditions in which the risk eventuated.[7]
[7]Bankstown Foundary Pty Ltd v Braistine (1986) 160 CLR 301, 310; Ghunaim v Bart [2004] NSWCA 28, [61]–[65] (McColl JA).
Any breach found against Morona on the basis that it failed to provide a safe system and plant for Baker’s work, and any breach by Ahrens on the basis that it failed as far as was reasonably practicable to design and manufacture a field bin that was safe for use by Baker, will be relevant to a consideration of whether the allegation of contributory negligence is made out.[8]
[8]McLean v Tedman & Anor (1984) 155 CLR 306, 315; Czatyrko v Edith Cowan University (2005) 79 ALJR 839, 843–4 [18].
Analysis
Ahrens
The risk of harm was that a farm worker who entered the field bin while the auger was operating, as Baker did, might be injured by coming into contact with the auger. For the following reasons that risk was foreseeable to Ahrens.
First, the risk of harm from coming into contact with an operating auger was notorious.
Second, the industry documents clearly indicate a history of and propensity for farm workers to intentionally or accidentally approach operating augers.
Third, the industry documents confirm the obvious fact that a worker who came within the vicinity of an operating auger in a confined space was at risk of injury if the auger was inadequately guarded. I conclude that an experienced manufacturer in the position of Ahrens could not reasonably claim to be unaware of these first three matters.
Fourth, I am satisfied it was relatively common practice for workers to enter field bins with the auger operating. Baker’s evidence on this issue was unchallenged. He said that was the system adopted on the first farm at which he worked for six years, at Mathoura Bulk Grain and on the Morona farms, and that he had observed other farmers and contractors doing the same thing. Evidence in the industry documents about workers approaching augers in confined spaces, including field bins, is consistent with Baker’s evidence.
Fifth, there was both motivation and opportunity for workers to follow this practice. The field bin hatch allowed workers access to the inside of the bin while the auger was operating. Dr Field referred to the inevitability of rice becoming stuck requiring that a worker take steps to move the rice so that it could be emptied from the bin. The harvest time pressures described by Baker are likely to have been a common experience for farmers and contractors. A worker entering a bin with the auger operating to quickly clear stuck rice is an example of the sort of behaviour described in the standard as set out in paragraph 55 above.
Sixth, 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. It must have been obvious to Ahrens that a gap was being created in the guard, because the purpose of the alteration was to allow space for the auger choke to be fitted.
Seventh, consistent with the authorities, the Code and the Standard obliged the designer to consider reasonably foreseeable misuse of a machine it was intending to manufacture. Further, the Standard required that the process of design commence with a risk assessment informed by user input. A reasonable designer and manufacturer in the position of Ahrens would have turned its mind to the possibility that the field bins may be used in a manner that was not intended by it, or that it considered to be a misuse. There is no evidence Ahrens undertook the sort of risk assessment contemplated by the Code and the Standard when it designed the field bins and the mesh guard. If Ahrens was uncertain about the ways in which its field bins were being used, it could have made enquiries from its customers or the user industry generally. It is likely such enquiries would have revealed the manner of use of the field bin described by Baker.
The risk of harm to Baker was not insignificant. The evidence demonstrates the severe nature of auger injuries that often result in traumatic loss of limbs.
I conclude that a reasonable manufacturer in Ahrens’ position would have taken precautions against the risk of harm. I accept that the probability that the harm would occur if further precautions were not taken was relatively low. Over the past 15 years Ahrens has manufactured and supplied well over a thousand field bins with the same mesh guard. Documents discovered by Ahrens indicate that before Baker’s injury there had been no previous reports of accidents relating to the gap in the guard, although I note no witness attended for cross-examination about that matter. However, the industry documents demonstrate what is obvious, that the likely seriousness of the harm was great. The burden on Ahrens of taking precautions to eliminate or reduce the risk simply involved fitting those field bins that were to be used for grain and cereal with an adequate mesh guard similar to the original design or the modified design. The SafeWork harvest safety warning described mesh guards as inexpensive and easy to install.
Ahrens’ duty was not discharged by the warning information on the plates attached to the field bins. As the Code and Standard demonstrate, providing information for users does not make an unsafe design safe for use, and is lower than guarding on the hierarchy of controls.
Morona
The risk of harm to Baker would have been reduced, but not eliminated, if the field bin supplied by Ahrens had a guard with the original design or the modified design, in place above the auger. The mesh openings were large and relatively close to the exposed auger. A worker may have been injured if their clothing or a tool they were holding became entangled in the auger, or if they fell in the awkward confines of the bin resulting in their arm going through the mesh and coming into contact with the auger.
I accept the evidence of both experts that it was unsafe to enter the field bin with the auger operating. That evidence is consistent with the content of the industry documents set out above.
Morona gave no instruction to Baker about how to perform the task of emptying the field bin, simply relying on his experience as a farm worker and machine operator. There is no evidence Morona undertook a risk assessment in relation to the task. To the extent Morona had a system, it was demonstrated by Nick and Steven Morona performing the task in the same way as Baker was doing at the time of the accident. I conclude that system of work was unsafe and risked eventuation of the sort of injury suffered by Baker, that is gross trauma caused by contact with the operating auger.
The system adopted by Morona and Baker was unnecessary. Although rice had a propensity to stick, it only occasionally did so in a way that prevented the field bin being emptied by normal operation of the auger.
Baker said performing the task of emptying the bin by first turning off the auger would have added about 30 to 45 minutes to the time taken. It is likely the process would have been more efficiently performed if a second worker was present, or Morona had ensured that appropriate tools, such as shovels and brooms, were invariably available to the worker emptying the bin. The additional time spent by taking the precaution of turning the auger off was not a heavy burden, particularly having regard to the magnitude of harm that workers risked if they came into contact with an operating auger.
Baker and Dohrmann both doubted that grain could be cleared by the worker standing in the open hatch without entering the bin and using a tool such as a hoe or a broom. The evidence does not allow me to conclude this was a practical alternative system when larger amounts of grain were stuck. However, I conclude that provision of appropriate tools would likely allow the worker to safely clear smaller amounts of grain, such as the estimated 200–300 kilogram blockages Baker said sometimes occurred, efficiently and relatively quickly by turning off the auger before entering the bin, or moving rice while standing in the hatch, or a combination of the two.
I conclude Morona breached its duty of care to Baker by failing to adopt a system of work that prohibited workers entering the field bin when the auger was operating.
In closing address, Morona accepted some liability on the basis that it failed to properly inspect the new guard and observe the gaps in the mesh which exposed the auger. However, Morona argued it was given no notice by Ahrens of the changes to the mesh guard that were ‘subtle but significant’. Morona argued its liability should be assessed on the basis that the changes to the mesh guard would not have been readily apparent to a person in the position of the first defendant, which was entitled to place significant reliance on the experience and expertise of Ahrens as a reputable manufacturer and supplier of field bins.[9] While I accept there is some force in Morona’s submission on this point, it is reduced by the following factors. The defect in the guard was not latent. An experienced operator such as Morona, who undertook a careful inspection of the inside of the new field bins to check, amongst other things, the efficacy of the mesh guard, would have readily observed the differences between the original design and the new design, and the gap above the auger. An employer who condoned workers entering field bins with the auger operating should have carefully inspected the mesh guard to ensure it would prevent their feet from coming into contact with the moving auger.
[9]TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1, 13–14 [55] (Mason P).
Baker
For the following reasons I conclude contributory negligence has not been established.
Whether Baker was guilty of contributory negligence must be assessed in the context of the breaches of duty by Morona and Ahrens, and all the circumstances of the case.
I have accepted that in Baker’s experience it was common practice for farm workers, contractors and farmers to enter field bins with the auger operating, and that he had observed the Moronas doing the same thing. In the absence of any instruction, that was the de facto system operating on the Morona farms. Baker was not challenged by either defendant on the basis that he failed to act in accordance with instructions or the employer’s system of work.
Baker was strongly motivated by the harvest time pressures imposed by Morona to perform the task of emptying the field bin and conveying the rice to the bulk receiving facility as quickly as possible, because otherwise ‘you’re losing time, you’re losing money’.
While he appreciated that augers were dangerous, Baker’s experience to the time of the accident led him to conclude that the mesh guard in the Ahrens field bins was adequate to prevent his feet from coming into contact with the operating auger. I accept that a worker in Baker’s position would have understood that was the purpose and function of the mesh guard. That conclusion would have been reinforced by the common practice of workers entering field bins with the auger operating.
Ahrens gave no notice or warning to Morona or Baker that it had modified the mesh guard in the new field bins in such a way as to leave a gap in the guard above the operating auger. I accept Baker’s evidence that he was not aware of the modification before the accident. I accept Dohrmann’s description of the modification as being ‘subtle but significant’. It was not put to Baker that he should have carefully inspected the mesh guard at any time during his use of the field bin before the accident. The modifications to the guard were unlikely to have been evident to a worker in Baker’s position on the sort of casual observation that might have occurred while working in the bin.
The warnings on the field bin did not direct the worker’s attention to the risk that eventuated. It is understandable that Baker thought the first warning related to risks associated with grain, such as drowning or being crushed. I understood Baker’s evidence to be that the purpose of the mesh guard was to keep a worker’s feet clear of the auger. There was no warning that the mesh guard should not be relied on to protect a worker’s feet from coming into contact with the operating auger. It is understandable in all the circumstances that Baker thought it was safe to stand on the guard above the operating auger.
Ahrens submitted a finding of contributory negligence should be made because Baker had his back to the auger and was not watching where he placed his feet immediately before the accident occurred. I reject this submission. It presupposes that Baker should have appreciated that some areas of the guard were inadequate to prevent his feet from coming into contact with the auger, and that he should avoid stepping in those areas. Baker’s evidence was that he was not aware of the new design of the guard. Baker was entitled to rely on Ahrens’ expertise and Morona’s obligations to provide safe plant for his use, particularly where Morona condoned and adopted the system of entering field bins with the auger operating. Further, a worker would very likely have their back to the auger when exiting the bin through the hatch. Even if the worker was aware of some deficiency in the guard, the circumstances of the task meant it gave rise to the likelihood that the worker would be inadvertent about where they placed their feet.
Apportionment
Apportionment between Morona and Ahrens is to be determined by assessment of the degree of departure by each defendant from the standard of care owed to Baker, and the causal potency of the respective breaches.[10]
[10]Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5; Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492, 493–4.
There was a considerable departure by each defendant from the standard of care required. It was notorious in the farming industry, and should have been well known to both defendants, that workers who approached inadequately guarded augers risked severe injury.
There were two causes of the injury. First, the mesh guard was inadequate and allowed Baker’s foot to come into contact with the operating auger. Ahrens was largely but not entirely responsible for that cause. Morona bears some responsibility for its failure to properly inspect the mesh guard in the new field bins before allowing workers to continue with the practice of entering field bins while the auger was operating in order to clear blockages of grain.
Second, the system of work did not prohibit Baker from entering the field bin with the auger operating. That system was the responsibility of Morona. However, it is relevant that Ahrens did not bring the modifications to the mesh guard to Morona’s attention, or provide any warning to users that there were gaps in the guard that exposed workers’ feet to the risk of coming into contact with the operating auger. The system of work was made materially more dangerous by the new design, and that was the root cause of the accident.
Ahrens and Morona should each have taken precautions, independent of the other, that were likely to have prevented the accident.
I conclude that responsibility for the accident and Baker’s injuries should be apportioned 40% to Morona and 60% to Ahrens.
I will hear from the parties as to the form of orders which should be made, and as to costs.
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