Baker v AM Morona & F Morona & SN Morona & Ahrens group Pty Ltd

“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.”

Case: Baker v AM Morona & F Morona & SM Morona & Ahrens Group Pty Ltd (2 November 2022) Date of Judgement: 2 November 2022 Court (Location): Supreme Court of Victoria at Bendigo Expert (for the Plaintiff): Tom Dohrmann, mechanical engineer, Dohrmann Consulting Solicitors: Arnold Dallas & McPherson (Plaintiff); TurksLegal  (Defendant 1) & Clyde & Co (Defendant 2) Legal Matter: Worker suffered traumatic amputation when foot came into contact with operating grain auger – Gap in Auger guard – Claims against employer and manufacturer – Contributory negligence – Appointment. Court Decision: Responsibility for the accident and the plaintiff’s injuries should be apportioned 40% to Morona and 60% to Ahrens.

Extracts from Judge Keogh’s comments in relation to evidence provided by registered professional engineer with experience relevant to ergonomics and occupational / work health and safety Mr Tom Dohrmann.

Paragraph 8 Evidence was given at trial by Baker and two mechanical engineers, Tom Dohrmann, called by Baker, and Dr Bruce Field, called by Ahrens.

Paragraph 39 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.

Paragraph 56 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.

Paragraph 57 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
SC:VL 17 JUDGMENT
Baker v AM Morona & F Morona & NM Morona & SM Morona
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.

Paragraph 60 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.

Paragraph 61 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.

Paragraph 62 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.

Paragraph 65 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.

Paragraph 66 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.

Paragraph 72 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.

Paragraph 106 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.

Full court report can be accessed via the Australasian Legal Institute – Baker v AM Morona & F Morona & NM Morona & SM Morona & Aherns Group Pty Ltd.