Slivak v Lurgi (Australia) Pty Ltd

The appeal concerned Mr and Mrs Slivak, who sought damages from Lurgi (Australia) Pty Ltd ("Lurgi") following injuries sustained by Mr Slivak in an industrial accident. Mr Slivak was injured when a fume extraction system he was working on collapsed. The system was designed by Lurgi, and Mr Slivak was employed by Lucon (Australia) Pty Ltd, a subcontractor engaged by Lurgi. Mrs Slivak claimed damages for loss of consortium. The High Court of Australia heard the appeal from the Full Court of the Supreme Court of South Australia, which had dismissed the Slivaks' appeal from the decision of Prior J.

The central legal issue before the High Court was whether Lurgi, as the designer of the fume extraction system, had breached its statutory duty under s 24(2a)(a) of the *Occupational Health, Safety and Welfare Act 1986* (SA). This provision requires a designer to ensure, so far as is reasonably practicable, that a structure is designed in a way that persons are safe from injury and risks to health. The appellants argued that Lurgi's design was defective because it did not incorporate elements to mitigate risks arising from the negligent erection of the structure by the contractor.

The High Court reasoned that the ordinary meaning of s 24(2a)(a) applied to a structure being built in accordance with the design. The court found that the evidence unequivocally demonstrated that the structure would not have collapsed if it had been erected according to Lurgi's design and within the specified tolerances. Therefore, the design itself was not inherently unsafe. The court held that the statutory duty imposed on a designer under s 24(2a)(a) relates to matters within the designer's power to control, such as the intended use and loads of the structure, and the nature of its location, rather than the procedures adopted during construction, which are outside the designer's direct management. The court agreed with the lower courts that Lurgi had not breached its duty under s 24(2a)(a).

The appeal was dismissed with costs.