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.

Facts

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 weld detail.

There was an international standard (ISO 5049) that applied to bucket wheel excavators that had been accepted in 14 countries (but not Australia).

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 negligence.

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

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