Landscaper should have fixed weld before work began, NSW judge finds
A landscaping and building company will have to pay damages to their former mechanic after he was injured in 2007 by the 200kg bash plate he was removing from the underside of a Volvo Loader.
The decision shows that a vehicle owners will have a duty of care to an independent contractor when they are aware of a defect that has not been rectified.
The mechanic was an independent contractor who had been working for Australian Native Landscapes (ANL) for two years.
Thehe accident occurred in September 2007, when the plate fell on his right arm as he lay underneath the loader, causing serious injuries.
The same mechanic had removed the plate safely in April that year, but found when he attempted to reaffix the plate that the bolts did not align and that the thread end of the bolts were tapered and worn.
The Supreme Court of New South Wales heard that instead of trying to use the bolts to affix all sides of the plate, the left side of the plate was welded into place on the loader, while the right side was bolted in place.
The mechanic was aware that this had taken place, with judge Megan Latham finding that the work, done by an ANL employee, was performed under the instruction of ANL’s yard manager, who was responsible for production at the worksite.
“Recognising that the weld was not a satisfactory permanent solution to the misalignment of the bash plate, [the manager] issued the instruction with the assurance that he would arrange for the misalignment to be properly rectified within a week,” Latham writes in her judgement.
“[The manager] obviously forgot that he had authorised the weld and failed to ensure that the bash plate was later re-aligned and securely bolted in place.”
Latham came to the conclusion that if ANL had rectified the weld before the loader was serviced in September, the plate would not have fallen.
“The joint expert opinion confirmed that, most probably, the weld broke just before [the mechanic] was beginning to crack the third bolt, whereupon the plate dropped immediately,” she writes.
“[ANL] was responsible for rectifying any known defect that would expose [the mechanic] to the risk of serious injury in carrying out maintenance or repairs… [The mechanic] suffered serious harm as a result of the breach.”
However, Latham finds that the mechanic had also been negligent – saying he should have carried out a proper visual inspection of the loader, including scraping away any mud, before laying under it to remove the bolts.
“Had the [mechanic] taken the precaution of conducting a full visual inspection of the loader, he would have seen the tack weld and realised that it was unsafe to go further unless the plate was supported,” she writes.
She assessed his contributory negligence at 40 per cent.