A nod, a wink, a serious workplace injury and $925,000 penalty

By Jeff Salton on March 7th, 2017

film x-ray ankle AP/Lateral : show fracture tibia & fibula (leg's bone) and ankle dislocation

A mistaken case of making eye contact has caused serious injury to a worker and cost two companies $925,000 in financial penalties.

The ACT Supreme Court heard that in May 2012, contractor Mr Glenn Sommerauer was operating an 8-tonne backhoe at a Huon Contractors subdivision development when he answered a call on his mobile phone from his daughter, informing him that her partner had died the previous evening.

While Mr Sommerauer was engrossed in the distressing phone call, a Kuna Contractors’ employee, Tony Brekalo, approached the excavator no-go zone, not aware that the operator was talking on his mobile phone. Mr Brekalo, believing he had made eye-contact with Mr Sommerauer and had received a ‘reverse nod’ of acknowledgement, opened the excavator operator’s door.

But the operator had not seen Mr Brekalo and his movements during the conversation with his daughter had been misinterpreted by Mr Brekalo as permission to approach. As Mr Brekalo went to open the cabin door, he was struck on the foot by the stabilising blade of the excavator, which was being lowered by Mr Sommerauer. Mr Sommerauer testified he had not seen Mr Brekalo.

Mr Brekalo, a Kuna employee, sued Mr Sommerauer for damages, and the latter accepted that he had acted negligently in operating the excavator and lowering the blade while talking on his mobile phone, in breach of Huon’s site rules.

The parties settled on a damages sum of $830,000, plus $95,000 in costs, and Kuna agreed to contribute 20 per cent of Mr Sommerauer’s liability to Mr Brekalo.

In subsequent Court proceedings, Mr Sommerauer argued that Huon should be liable for the damages because its safety procedures contributed to the accident.

The Court was told that Mr Sommerauer was under the direct control of Huon in that his work was allocated each day to him by the Huon supervisor.

Mr Sommerauer testified he was aware of the safety protocols which had to be followed and that he had undergone an induction process. He said he was well aware of the protocol that there was a requirement no person was to enter an exclusion zone when plant was operating without making eye contact with the operator and all plant was to have flashing lights and reversing sirens.

No phone rule

Mr Sommerauer said he was aware of a rule that no mobile phones were to be used on site unless specific permission had been given to use in an emergency.

Evidence given by Phillip Martin, a consulting engineer, said no person should approach an excavator unless that person had ensured there had been contact with the operator and an acknowledgment received of that contact and the machine had then been placed in idling mode.

He added that the operator was meant to indicate to the other person it was okay to approach.

Mr Sommerauer gave evidence that he had raised issues with the Huon supervisor where people had approached his machine when it was operating and he had not been aware of them. He was not sure if any action had been taken to cease that practice.

Mr Sommerauer submitted that site rules devised and implemented by Huon were deficient in that Huon should have emphasised to all workers, such as Mr Brekalo, the need to receive an acknowledgment from the operator of the heavy machinery before approaching the machinery.

Judgement time

In making her judgement, Acting Justice Ashford said Mr Brekalo had told the Court he had made eye contact with Mr Sommerauer but that it would appear difficult in circumstances where Mr Sommerauer, in Mr Brekalo’s evidence, was wearing chrome aviator sunglasses.

The judge said: “To my mind, a ‘reverse nod’ could be almost any movement of the head. Perhaps he was stretching his neck or otherwise moving his head around.”

“Common sense would dictate that some acknowledgment of the contact and indication of agreement to approach is reached. Thus, I accept that if there had been such a clear and obvious rule Mr Brekalo would have followed such a rule and this would have prevented any accident. I am satisfied Huon’s site rules were deficient in that regard.”

The judge found that Huon was liable for damages caused by a wrong on their part in accordance with section 21 of the Civil Law (Wrongs) Act 2002 (ACT) and that it was just and equitable and appropriate that a contribution is made by it.

“I have come to the view that I should apportion the liability in the proportion of 40 per cent to [Sommerauer] and 40 per cent to [Huon]. There has already been a 20 per cent agreement in relation to [Kuna], and I make orders accordingly,” Acting Justice Ashford said.

Checked your safe operating procedures lately?

Are your safe operating procedures lacking common sense? Would they stand up in Court if scrutinised? Are your workers and contractors familiar with your safe operating procedures? Perhaps they’re even ‘over familiar’ with them and have started taking shortcuts or workarounds?

Do new workers or sub-contractors interpret them differently to how they were intended to be observed?

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