The recent case of BHP Coal Pty Ltd v O&K Orenstein and
Koppel AG provides a timely reminder of the challenges facing
professionals in an advancing world of knowledge.
In 1984, a bucket wheel excavator operating at a coal mine in
Goonyella was damaged in a grounding incident. A German engineer
flew to Australia to advise on the necessary repairs. Essentially,
the repairs involved welding extra stiffeners to the machine - and
were designed in accordance with the German standard for design of
'large machines in open cut mines' (BG60), which included
bucket wheel excavators.
In March 2000, the bucket wheel excavator collapsed due to
fatigue fracture in its central tower. The owners of the machine
brought proceedings in the Supreme Court claiming damages in excess
of $50 million.
Duty of care
One of the issues considered was whether the engineer had
breached his duty of care in the design of the rectification.
A professional, in carrying out their work, is required to
exercise the skill of an ordinary skilled professional within the
same profession. The professional is deemed to know those things
which the average professional in the field is expected to know.
The professional will be judged against a standard based on what
they actually know or have experienced.
In every profession the expected body of knowledge advances over
the years. However, a professional can only be judged against the
state of knowledge that existed at the time of the act or omission
in question. Usually this is determined by a court on the basis of
expert evidence about the state of knowledge at the time in
question, which typically includes reference to published
literature. A professional is expected to be aware of developments
that have entered the general body of knowledge in their field.
Did the expert breach his duty?
In the BHP Coal case a number of experts gave evidence
about the state of knowledge in the industry in 1984. By 1984 BG 60
had been in place in the industry for 24 years. There was a body of
thought in published articles that the welding requirements in BG
60 were inadequate because they failed to take account of dynamic
loads. In response to those concerns BG 60 was the subject of
review by an eminent panel of experts, which included the engineer
in question. A few months before the repairs took place, the review
committee had released a draft standard which offered a
significantly more conservative assessment of the strength of the
There was an international standard (ISO 5049) that applied to
bucket wheel excavators that had been accepted in 14 countries (but
The trial judge found that a reasonable engineer in the position
of the defendant engineer should have doubted the reliability of BG
60 in respect of welds. The defendant engineer was found liable in
Lessons to be learnt
This case is a reminder that adherence to published standards
will not necessarily be sufficient to satisfy a court that there
has been no breach of the duty of care. It is incumbent on all
professionals to keep abreast of developments in their field. The
challenge is to identify the tipping point, that is the point at
which the criticism of existing standards in published material
goes beyond occasional ventilation of academic opinion, and reaches
a point where a reasonable professional would regard the existing
standard as unreliable and address the design task accordingly
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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