Tragic farm worker accident: employer’s fault or that of auger supplier?

In what circumstances can the supplier of machinery that an employer allows to be used in an unsafe manner be made to bear responsibility for the injuries it causes to a worker?

Consider the case of a farm worker accident that traumatically amputated an employee’s lower left leg when it was caught in a grain auger that he was trying to clear.

Jethro Baker was employed as a machine operator and farmhand on the rice growing property owned by Frank, Anna, Stephen and Nicholas Morona near Deniliquin in the Riverina region of New South Wales.

Up to 10 tonnes of harvested rice could be stored in each of four field bins on the farm before it was transferred to trucks for freight to a buyer for processing.

An internal auger is used to transfer the grain from the bin into trucks. The system depends on grain falling to the uncovered end of the auger at the base of the bin so it can carry the grain up a chute and into the back of the waiting transport.

Baker was operating the auger in April 2018 in order to transfer rice to a truck when it became stuck and stopped flowing into the auger.

He climbed through a hatch at the top of the field bin and descended inside to move the grain with his feet. 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.

He sued his employer and Ahrens Group Pty Ltd who designed and built the bins contending the latter should bear 90% responsibility.

Justice Andrew Keogh was assigned to apportion liability in the Supreme Court at Bendigo against a background of the parties having agreed a sum for Baker’s financial loss and general damages arising from the accident.

The 35-yr-old Baker recruited mechanical engineer and veteran occupational health & safety expert Tom Dohrmann who identified that the mesh guard through which Baker’s foot passed was of a recently altered design with a gap above the uncovered auger end and some mesh squares unsupported on one edge.

He referred to the relevant WorkCover NSW Code of Practice that specified “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”.

Australian Standard 4024 for machinery safety was also relevant in that it referred to principles of risk assessment and risk reduction of the foremost of which was “inherently safe design”.

Dohrmann’s view was that the mesh guard was less effective than its earlier iteration and that any “inherently safe design” would have prevented the operator to entering through the field bin hatch unless the auger had been disengaged.

Ahrens engaged Dr Bruce Field a mechanical engineer involved in the design of on-farm equipment. He concluded that 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.

However under cross examination, he accepted the guard did not adequately perform its function.

Various industry documents put before the court clearly indicated a history of and propensity for farm workers to intentionally or accidentally approach operating augers.

Justice Keogh observed that the “risk of harm from coming into contact with an operating auger was notorious”.

He found that the manufacturer must have been aware of those risks and the wisdom of adequately guarding exposed auger blades against unsafe practices adopted by farmworkers.

The weakening of the guard caused by the redesign of the mesh created an increased risk of a worker’s foot coming into contact with the auger and both the Code and the Standard obliged Ahrens to consider reasonably foreseeable misuse of a machine it manufactured.

It was in breach of his duty to take precautions to eliminate or reduce the risk of injury to users of its products.

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.

And given it condoned workers entering bins with the auger operating, it should have carefully inspected the mesh guard to ensure it would prevent against a worker’s foot coming into contact with the moving machinery.

The judge decided both Ahrens and the Moronas should have taken their own precautions to mitigate the danger and prevent the accident and that responsibility for Baker’s injuries should be apportioned 40% to the employers and 60% to the manufacturer.

The damages the defendants must pay to Baker is not disclosed in the judgement. Given his age, occupation and other factors, the total is likely to be upwards of $1.5 million.

Baker v AM Morona & F Morona & NM Morona & SM Morona [2022] VSC 660 Keogh J, 1 November 2022

source https://cartercapner.com.au/blog/tragic-farm-worker-accident-employers-fault-or-that-of-auger-supplier/

Miner defeats suspicious minds in claim for CRPS injury: court awards $1.95 mil

An underground miner who presented with what one specialist described as the most obviously fake condition he had seen in his 40 years of medical practice has won nearly $2 million in damages for the accident it resulted from.

Fosterville Gold Mine 20 km east of Bendigo has extracted over 3.5 million ounces of gold since 2005. It employs more than 800 people including – up until May 2018 – Patrick McGiffin.

Working twelve-hour shifts – seven days on and seven days off – McGiffin’s “nipper” role was to maximise the efficiency of a “jumbo” machine to which he was assigned.

He did this by being on ground to load bolts into one of its two booms attached to the jumbo so its operator could drive them into the several hundred holes they would drill in the wall or the roof of the mine each shift.

To comply with safety protocols, the nipper must stay behind the machine unless he sees the operator move back from the boom control levers and receives visual acknowledgement from him that he may move forward.

In March 2018 an accident occurred after McGiffin moved forward of the machine when he believed its operator had signalled with a nod of his head that he could do so.

At the same time the operator inadvertently bumped a lever that caused a boom to swing towards McGiffin such that the bolt at its extremity struck him on the head and right shoulder.

He was treated at Bendigo Hospital and by his GP before returning to work about a week later on alternative duties until May when he ceased work altogether.

McGiffin’s symptoms of constant severe pain radiating from the right shoulder down to his fingers and a total lack of movement in his shoulder were entirely disproportionate the blow he had received.

When his condition was not improved by an arthroscopic decompression in the latter part of 2018 or by repeated hydrodilation of the shoulder joint, treating orthopaedic surgeon, Brendan Soo suspected he had developed Complex Regional Pain Syndrome.

This diagnosis was confirmed in June 2019 by his colleague Thomas Kossmann who noted McGiffin’s right hand and forearm had a different skin colouration, sweating pattern and hair growth compared to his left arm.

He thereafter saw numerous specialists most of whom noted the differences that Kossman had recorded. Some recorded no such differences and some others also noted the right arm was also hotter to touch and appeared to be swollen.

All such anomalies between one limb on the other are recognised features of a CPRS condition and comprise the elements of the only available diagnostic tool, the Budapest criteria.

When his compensation claim came before Justice Steven Moore in the Victorian Supreme Court the employer finally admitted fault for the accident but denied he had any CRPS condition. It also claimed McGiffin should share some of the fault.

Justice Moore was satisfied having regard to the circumstances that there was no contributory negligence on the part of the mine worker.

He then turned his mind to the unusual condition that beset the worker.

Mr McGiffin’s evidence was that his right shoulder and arm will not move and his right hand is fixed in a clawed grip which he cannot open, something that the employer’s expert seized on as evidence of malingering.

Musculoskeletal physician David Vivian took the view from an initial telehealth consultation that he was “consciously simulating his condition”. In a later phone call with the mine’s lawyer in October 2021 describing the condition as “non-organic” and “factitious”, he suggested “the only way you are going to get him to move his arm is to catch him doing it on surveillance or to manipulate it under anaesthetic”.

He went on to say he had never seen “so obvious a non-organic presentation in his 40 years of medical practice”.

In Justice Moore’s view, the expert opinion that Dr Vivian expressed in all three of his reports was coloured by the suspicion he formed on that initial occasion.

Neither Vivian nor occupational physician Joseph Slesenger supported the CRPS diagnosis with the latter stating that if it had existed, it had fully resolved by the time he examined the patient in May 2021.

Slesenger’s conclusion was fortified by the “absence of wasting around the right shoulder and right upper limb” and a suspicion that he was exaggerating his symptoms and was in fact engaged in heavy work.

Justice Moore was not impressed that both these experts – engaged by the defendant – substantially discounted the history the mine worker had provided and failed to apply the multifactorial Budapest criteria which Dr Vivian described as “not all that good, it is a consensus statement”.

The court preferred the evidence of physician Peter Blombery – with more than 30 years’ experience in treating CRPS patients – who assessed McGiffin as a genuine case albeit “with some exaggerated pain behaviour”.

He explained the lack of wasting in the patient’s forearm as being the result of the arm being held in a fixed, clenched position with a continuous engagement of his muscles.

Both Blombery and musculoskeletal and pain specialist Robert Gassin – also with years of experience dealing with CRPS patients – applied the Budapest criteria and confirmed the condition overwhelmingly met all four required elements of which muscle wasting was not one.

A similar divergence arose between psychiatrist Professor George Mendelson and his colleague Justin Lewis.

Because Mendelson’s report was premised upon McGiffin not having a CRPS injury, his view – that the miner did not have any occupationally limiting psychiatric condition – was rejected and that of Dr Lewis – who diagnosed a major adjustment disorder – was accepted.

Accepting McGiffin’s testimony and that of his fiancé Heidi Tresize as forthright and direct, Justice Moore ruled “the weight of evidence supports a finding that Mr McGiffin no longer has the capacity to perform his former, or any other, employment, and is likely to have no capacity to work into the foreseeable future.”

General damages were assessed at $450k; and past income loss of $295k; future income loss for the 29-yr-old at $1,207k making up a total award of $1,952,618.

McGiffin v Fosterville Gold Mine [2022] VSC 665 Moore J, 4 November 2022

source https://cartercapner.com.au/blog/miner-defeats-suspicious-minds-in-claim-for-crps-injury-court-awards-1-95-mil/

Aggravated damages for rape and sexual abuse rated lower than for wrongful arrest

A Gold Coast man acquitted of having broken into the home of his former wife and violently assaulting her has been ordered to pay her close to one million dollars including aggravated damages, for the December 2013 ordeal and resulting trauma.

Caitlin Gardiner – a 42-year-old insurance consultant – continued to reside in the family home at Royal Pines at Ashmore following her recent separation from husband of 15 years, James Doerr.

Having fallen asleep on the couch in the lounge room she woke to the sound of louvres being removed from a kitchen window.

She screamed as she saw a man in a black balaclava wearing latex gloves standing at the sink in the dimly lit kitchen.

The assailant ran towards her and forced her back onto the couch by sitting on her chest. In a struggle he forced her to lie on her back on the tiled floor and stuffed her mouth with a cloth before taping it closed.

He also placed cloth and tape over her eyes and tied her hands together with white garbage bags  before asking if she preferred to be raped from the front or behind.

She eventually recognised from his mannerisms that the assailant was in fact her husband and called him out.

From that moment he removed the balaclava and began talking to her as if the brutal assault had not occurred.

They sat down together at the dining room table where he demanded that she sack her lawyer before he eventually left the residence at 6:00 am.

After the attack, Ms Gardiner unsuccessfully attempted to resume her work on four occasions. She received benefits under her income protection insurance policy for around 18 months.

Her resulting anxiety made it impossible to maintain the concentration and diligence required of her role especially in relation to meetings with prospective clients.

However by 2016 she was able to return to work in a reduced capacity to look after the insurance affairs of that half of her client list – 350 clients – who had remained on board and who had in the meantime been serviced by a colleague.

Doerr denied the incident had occurred at all and that if it had, he had not been the assailant.

He was charged by police for the break and enter and the assault but acquitted.

Justice Sean Cooper in the Supreme Court in Brisbane accepted Gardner’s evidence that the home invasion and assault had occurred, primarily by reason of the physical injuries that had been recorded by investigating police officers and medical personnel.

He also found Doerr to be the assailant given the presence of his DNA on a remnant of one of the latex gloves he had been wearing that was found at the scene.

His contention was that Ms Gardiner’s psychological condition was a pre-existing longstanding condition, was rejected.

Gardiner was assessed prior to trial by psychiatrist Gary Larder with a PIRS rating of 5% but in 2015 it had been assessed at 17% by his colleague Peter Mulholland.

General damages at just $8,400 were allowed.

Forensic accountant Michael Lee tabulated her past loss of income up to October 2021 at between $250k and $418k. Given the upper range assessment was premised upon an unrealistic picture of pre-incident annual average income, the lower figure was accepted.

Justice Cooper concluded loss of income from November 2021 and for the future should be assessed on a figure for gross reduction in the income of the business less than that adopted by the expert accountant. $404k was allowed.

The cost of Ms Gardiner’ regular psychological support from Katrina Fritzon and further fortnightly sessions over the next two years was also allowed in the award.

Aggravated damages were  awarded having regard to the horrendous events of 2013 and the manner in which Doerr instructed that the trial be conducted – alleging that the assault had been fabricated; subjecting his victim to an overly long repetitious cross examination over more than two days; and including unfounded suggestions of dishonesty concerning her professional qualifications.

“In all of the circumstances, I consider this to be an appropriate case to make an award of aggravated damages as additional compensation where Ms Gardiner’s sense of injury from the assault is justifiably heightened by the manner in which Mr Doerr committed that assault and the manner in which he has defended this claim”.

But the judge was not satisfied that the circumstances warranted the same award of $100k for aggravated damages that was granted to David Bulsey who was illegally dragged from his bed in handcuffs by heavily armed, helmeted and masked police officers on Palm Island in 2004.

Rather, the figure was set at $50k with the court concluding the circumstances were more akin to a child sexual abuse verdict concerning an eight-yr-old child in relation to which that sum was allowed.

A further $50k was awarded for exemplary damages – to mark the court’s disapproval of the outrage that had been committed – especially having regard to the fact that Doerr had escaped punishment in the criminal proceedings.

Total damages were awarded in the sum of $967,000.

Gardiner v Doerr [2022] QSC 188 Cooper J, 11 November 2022

source https://cartercapner.com.au/blog/aggravated-damages-for-rape-and-sexual-abuse-rated-lower-than-for-wrongful-arrest/

Handling unsafe weights at rapid pace: Aldi pays $160k for disc injury

A supermarket stocker has recovered substantial damages for injuries sustained as a result of being required to perform her role of repetitious handling unsafe weights at a rapid pace.

Lucy Norsgaard’s duties at Aldi’s Brassall store included unloading and stacking of stock on shelves.

Under a direction to break down each load and distribute it around the store in 20 minutes or less, she sustained a ruptured disc in June 2019 from a single incident of lifting and manoeuvring three trays of canned tomatoes – a total weight of 15 kg.

She executed that task – as she had done many times before – by bending at the waist to pick up a three-tray stack each holding 12 tins, with her outstretched hands and then turning her trunk to the left to take two or three steps in that direction to place the load on the designated shelf.

When on this occasion she needed to take a third step, she felt a twinge in her back and spilled the cans to the floor.

She presented to her GP three days later complaining of the recurrent “twinge” which was provisionally diagnosed as “likely disc irritation”.

Ms Norsgaard recovered well on reduced working hours and physiotherapy but following her second session at the gym in September for accident related strengthening exercises, the pain and associated stiffness returned.

WorkCover refused to reopen her statutory compensation claim even though in October an MRI detected disc degeneration at L4/5 level “where a posterior annular tear and mild generalised disc bulge was noted”.

She filed a claim against the supermarket operator in the District Court in Brisbane alleging the task she had been required to perform was unsafe and that she had been inadequately trained in safe handling techniques.

Aldi denied any direction to “run a load” within a 20-minute window and asserted that adequate training had been provided. Further it argued, by lifting the trays three at a time, she had contravened the safety directions it had in fact provided.

The “theoretical” component of Ms Norsgaard’s manual handling training had been conducted by requiring inductees to watch videos on an iPad and then answering questions from store manager Ashleigh Hutchinson on what they had learned.

They were also required to demonstrate safe lifting techniques to him before being signed off as proficient.

Hutchinson swore he initially worked alongside Norsgaard as her “buddy” to run loads while observing her manual handling techniques and to provide additional demonstrations and advice about any errors he observed.

He also monitored her lifting and bending technique on other occasions and at least once early on, immediately walked over to her and pointed out something he saw she had done incorrectly.

Notwithstanding his acceptance of that evidence, Judge Nathan Jarro construed from the absence of some of Norsgaard’s training records that Hutchinson’s sign offs perhaps demonstrated insufficient attention to training details.

Having answered “no comment” to whether or not all safety policies were “slavishly” followed, the judge also gained the impression that Hutchinson did not strictly enforce all manual handling procedures.

On that basis – and because the other employees Aldi had called testified about the training afforded only to them – he thus largely accepted Ms Norsgaard’s account of her induction and what directions she had been given.

Critical were her contentions – ultimately accepted by the court – that there had been no direction to not lift weights above 10 kg or other instruction about the maximum safe weight for an employee to handle.

Likewise her evidence that nobody said anything to her to correct her lifting of three trays at a time.

It also emerged that there was indeed an expectation for staff to “run a load” inside 20 minutes.

Hutchinson agreed that it would have been made known to the employee that the average time to break down and distribute a double-D pallet was around 19 minutes and that he would make known to staff that their performance was “not up to standard” if they could not achieve that output.

Ms Norsgaard swore – and several Aldi employees more less corroborated – that at she often fell short of meeting the time target and that “conversations about my speed started almost immediately upon being employed and continued all the way up to my injury”.

An Aldi “Expectation Document” also recorded the average “19 minutes per standard DD” as a staff expectation.

Despite several other employees stating that the timeframe was not strictly enforced, his honour accepted that she decided to increase the volume of stock she picked up in one lift to meet the target.

The foreseeability and probability of a risk of injury to an employee when manually handling products – including the likely seriousness of such injury – were acknowledged by the employer in its own risk management documentation concerning lifts of 10 kg to 15 kg.

On that basis Judge Jarro had no hesitation that the employer had been in breach of its duty.

“More thorough testing of the initial training in manual handling should have occurred to ensure a proper understanding of what was being taught,” he concluded, “together with clear, explicit instructions given about the maximum weight the new staff member should lift safely by themselves at any one time, including the number of cardboard trays”.

He also found there was no proper system of monitoring how staff performed their roles to avoid unsafe manual handling practices and that one to two trays of product be permitted to be lifted and carried close to their body.

He rejected the Aldi contention that the employee should bear a 100% – or indeed any – contribution for her own negligence.

Expert evidence as to causation and damages produced a major divergence among experts.

Neurologist Don Todman assessed reduced flexion in her lumbar spine of 30 to 40 degrees in each direction to which he ascribed a seven percent whole person impairment wholly attributable to the lifting incident.

Orthopaedist John Tuffley on the other hand assessed a minor musculo-ligamentous strain in her lumbar spine of a 4 – 6 week duration. In his view the posture of her back at the time the cans fell to the floor was within normal physiological limits, and he noted she was able to retrieve them without restriction.

He concluded that the pain that arose over two months after the incident was consistent with a separate lifting of weights injury at the gym that had not left her with any permanent deficit and resulted in a zero impairment rating.

Dr Tuffley’s assessment was however discounted by the judge because it did not take into account that Ms Norsgaard sought medical treatment and physiotherapy between mid-August and prior to attending gym in September 2019, albeit presenting only mild symptoms.

And there was no evidence that the plaintiff lifted anything like 15 kg at the gym or did anything other than “body weight exercises” and stretching.

“To me”, his honour observed “it seems common sense therefore that, consistent with Dr Todman’s opinion, the plaintiff suffered an aggravation of her pre-existing injury rather than a new accident.”

He landed on an ISV of 8 as basis for an award for general damages of $12,530. Past economic of $64k and loss of future earning capacity of $67k made up a total award of $162k.

Norsgaard v Aldi Stores (A Limited Partnership) [2022] QDC 260 Jarro DCJ, 22 November 2022

source https://cartercapner.com.au/blog/handling-unsafe-weights-at-rapid-pace-aldi-pays-160k-for-disc-injury/