Machinery suppliers under the microscope after NSW decision

A RECENT New South Wales Industrial Relations Commission decision has sent shockwaves through the WA machinery dealers industry.

The NSWIRC found Arbor Products International was liable for injuries caused to a Yass Shire Council employee who had both his arms amputated while using a woodchipper the council had bought from Arbor.

Arbor sold the woodchipper to the council in 1999 and held a training session for staff who would be using it.

About two months later the employee, who had not attended the training session, was injured.

The commission found that, due to engineering shortcomings, the machine was inherently unsafe. It also found Arbor could not use the defence that the machine was used incorrectly.

Freehills senior associate Greg Smith believes the New South Wales decision would translate through to WA because the two States have very similar workplace safety laws.

In fact, WA’s laws are tougher.

“It appears if you supply machinery you have to be clear where and how it is used. This could extend even to manufacturers and the installers of equipment,” Mr Smith said.

“Before this decision it was assumed that if you supplied machinery with instructions on how to use it safely, you were alright.”

WorkSafe WA chief inspector of workplaces John Randall said the NSW decision was the first time a machinery supplier had been held liable for injuries.

He said WA legislation required suppliers to undertake a risk assessment of products they were selling and, if necessary, modify them to remove or at least minimise any risks. The legislation also requires suppliers to foresee any risks that may arise.

“The trouble is, most of the people in this business are agents of manufacturers, and they don’t feel they can modify the equipment. Any modifications usually cancel out the manufacturer’s warranty on the product,” Mr Randall said.

“We have had one successful prosecution under Section 23 of the WorkSafe Act.”

Smith Coffey Insurance Brokers’ Rod Tancred said providing the supplier was unaware the machine was unsafe, its liability insurance cover should pick up the penalty.

But Mr Tancred believes actions along this line will help further push up liability premiums.

“Liability premiums across Australia have been on their way up for some time now,” Mr Tancred said.

Increased litigation is largely responsible for that.”

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