Client Update

The District Court of Western Australia in Ross v Profile Packaging Pty Limited & Anor [2008] WADC 8 recently handed down its ruling.

The Court has held that, in addition to an employer breaching its common law duty of care with regards to the safety of its employees, the manufacturer of a plastics machine used on the factory floor had breached its common law duty of care to prevent foreseeable risk of harm to employees of the plastics company. As a result of the injuries, the Court awarded the injured employee just under $700,000 in damages.

Facts

On 12 June 2003, Mr Michael Ross, while working on the factory floor for his employer Profile Packaging Pty Limited (“Profile”), had four of his fingers on his right hand crushed and suffered significant burns and scarring to the back of his right hand. The injuries occurred while Mr Ross was attempting to clear jammed plastic from one of the thermo forming machines on the factory floor. Mr Ross required the four fingers to be amputated and, despite further medical treatment, his right hand was permanently fixed in a claw-like position. In addition, he was later diagnosed with post-traumatic stress disorder and suffered continual pain in the wrist and hand.

Part of Mr Ross’ duties at the time of the accident required him to operate a plastic moulding machine manufactured by Scope Machinery Pty Ltd (“Scope”). This machine was made up of two plates - the bottom plate heated up to in excess of 125 degrees Celsius and the top plate consisting of sharp cutter edges to cut the heated plastic to the required shape (once compressed between the two plates). As part of the machine’s design, the operation of the machine would be interrupted while a Perspex window was lifted in order to remove any jam. However, despite this safety mechanism being in place, Mr Ross’ hand was injured when the lower plate suddenly moved upwards, crushing it between the two plates.

Consideration of the issues

The issues for the WA District Court were:

• Had Scope breached its duty of care to produce a product which was safe to use?
• Had Profile breached its duty of care towards its employee Mr Ross?
• Quantum of damages.

Had the manufacturer breached its duty of care?

The Court held that the Scope had breached its duty to Mr Ross by:

• not designing the machine with metal interlocking safety blocks, or alternatively, by not providing a block of wood of sufficient strength to prevent the plates from slamming together,
• not providing adequate instructions in the operating manual on the type of wood to be used and its dimensions, and the proper method of clearing a jam, or using the manual override switch, and
• not affixing any warning signs to the machine.

Obligation at general law

During her Honour’s judgment, District Court Judge Schoombee referred to the fact that at general law it was well established that any manufacturer “who designs, manufactures and supplies a product has a duty to potential consumers of this product to exercise reasonable care, skill and diligence in the design and manufacturing process in order to produce a product which is safe to use”. Noting that this did not involve an absolute duty to ensure that the product was free from any defects or was “accident proof”, her Honour said what it did require was that the manufacturer exercise reasonable care to prevent a foreseeable risk of harm.

Her Honour referred to the case of Wyong Shire Council v Shirt (1980) 146 CLR 40 (“Shirt”) as providing the approach to consider whether this duty had been breached. This approach requires the Court to consider whether a reasonable man in the position of the manufacturer would have foreseen that their conduct involved a risk of injury to Mr Ross or to a class of persons including Mr Ross. If yes, the Court must go on to consider what a reasonable person would do in response to such a risk. This would involve the weighing up the magnitude of the risk and the risk of it occurring with the cost, difficulty and inconvenience in taking any remedial action to reduce/prevent the risk.

Findings against the manufacturer

In this case it was held that the cause of the accident was likely to have been Mr Ross accidentally operating the manual override switch by leaning against it when clearing out the jam. Accordingly, noting that a risk which is not far fetched or fanciful is foreseeable, it should have been foreseeable to Scope that the manual override switch may be operated inadvertently, either by a person removing a jam or even by another person on the factory floor.

Moving onto the next limb of the approach in Shirt, her Honour held that Scope did not do what it should and could have done to eliminate/reduce the risk of harm to Mr Ross. During the giving of evidence, Dr Chew (who appeared as expert for Profile), noted that AS4024.1-1996 contained a flow chart which represents the consensus of professional opinion and practical experience as it relates to the steps designers of machines should take to reduce any hazards. These steps involve:

• the designer attempting to eliminate any hazards as part of the design;
• failing the above, the designer considering whether there are any safety measures to guard persons from the hazards; and
• finally, the designer considering the system of work, personal protective equipment, warnings and signs aimed at the operator of the machine.

In this scenario, both Dr Chew and her Honour agreed that Scope could have eliminated the risk of harm to Mr Ross at the design phase by modifying the manual override switch and installing a U-shaped metal guard around each switch. The cost of installing this $40-$50 guard was insignificant in terms of the cost of the machines being approximately $160,000 and the level of risk of injury to persons such as Mr Ross.

Had the employer breached its duty?

Following discussion on the obligations of the manufacturer, District Court Judge Schoombee noted that it was not the duty of Profile to consider the risks posed by the machine in the context of how the machine could be better designed. However, the fact that Scope had breached its duties to Mr Ross did not relieve Profile from having to satisfy the duty of care it owed to Mr Ross.

Mr Ross told the Court that he had not received any training to operate the machine in question, and further that Profile had told him it would be safe to put his hands into the machine to remove any jams because the Perspex window safety mechanism would be activated. At all times, Mr Ross denied that he had ever been told by Profile to use a block of wood between the two plates as an extra safety precaution.

In the circumstances in this case, her Honour held that Profile had breached its duty of care towards Mr Ross for the following reasons:

• Profile should have made appropriate enquiries with Scope regarding the type of wood that should have been used between plates;
• Profile should have purchased and made available appropriate wood (despite the claims that this should have been supplied by Scope as manufacturer);
• Profile had not provided proper training to Mr Ross regarding the use of wood as a safety device; and
• Profile had failed to fix any warning signs to the machine indicating the risk of crushing, but instead relied on the warning in the manufacturer’s instruction manual.

Quantum of damages

Her Honour apportioned responsibility between Profile and Scope as 40:60 respectively. After considering Mr Ross’ loss of future earnings, the amount of general damages and other relevant factors when determining an award of damages under general law in Western Australia, her Honour held that Mr Ross was entitled to $695,373 in damages.

Effect of the NSW OH&S Act if the accident had occurred in NSW

The above case relied on the general law in Western Australia at the time of the accident. However, it should be noted that different OH&S laws can and do apply in the different States and Territories of Australia, and even as between the States and the Commonwealth.

For example, under section 11 of the Occupational Health and Safety Act 2000 (NSW) (“OH&S Act”):

“a person who designs, manufactures or supplies any plant or substance for use by people at work must:

• ensure that the plant or substance is safe and without risks to health when properly used, and
• provide, or arrange for the provision of, adequate information about the plant or substance to the persons to whom it is supplied to ensure its safe use.”

Should this case have been heard in NSW, Scope may have been found to have breached this statutory requirement. Although Mr Ross did not shut the machine down as recommended in the manufacturer’s instructions, both Profile and Scope said that this was not unusual practice and did not enforce the issue on the basis that the time lost meant it was impracticable to do so.

In addition, despite reference to placing a wooden safety block between the plates, Scope did not have thorough checking procedures for this and other items to be included with the machine when sent off site. In addition, no clear instructions were included in the operation manual on how to safely clear a jam from the machine.

In NSW, similar to the approach referred to in Shirt, section 28 provides that it is a defence to a breach of section 11 of the OH&S Act where it is established it was not reasonably practicable to comply with the obligation.

As indicated above, the small cost to install a guard around the manual override switch, ensuring the instruction manual contained proper procedures and that warning labels be attached to the machine would have been a simple and cost affective means of reducing/eliminating the risk to health and safety when compared with the high cost of the machine.