An important lesson is to be learned from BHP Coal Pty Ltd
and Ors v O & K Orenstein & Koppel AG and Ors 
Engineers are often called on to inspect works and are usually
obliged to provide a certificate to prove it. The BHP Coal case
highlights the importance of ensuring that engineers carrying out
inspections gain access to all parts of the machinery (not just the
convenient parts) and, in the event that access is impossible, this
must be communicated at the time of inspection, and carefully
documented in the inspection report.
The Goonyella Riverside Mine (Mine) used a
bucket wheel excavator (BWE) designed and
manufactured by O & K Orenstein (O&K) for
18 years until it suddenly collapsed due to a fracture in its
central tower. Some time previously when the BWE required repair an
O&K employee suggested the addition of lengths of steel, called
stiffeners, be welded onto the main tower of the BWE. The cracking
which led to the ultimate collapse of the BWE originated at the end
of one of the stiffeners. The claim totalled losses of just over
While O&K was found negligent in respect of the design of
the stiffeners, it was not the only problem. Regular inspections of
the BWE were undertaken by Krupp Engineering (Australia) Pty Ltd
(Krupp). In March 1999, Krupp sent an engineer to
conduct an inspection of the entire BWE. The engineer did
not notice the crack developing at the top of the stiffener quite
simply because he did not look there.
The court was persuaded that had the engineer used a mirror, a
cherry picker or even a manboat it was more probable than not that
he would have detected the presence of the crack. The engineer
employed by Krupp was found to have breached his duty of care by
not gaining a sufficient vantage point for the inspection of the
critical area. The inspection report stated that the BWE did not
have any major defects which would prevent the operation of the
machine but it did not clarify that the entire BWE had not been
The engineer employed by Krupp (in his personal capacity) and
Krupp itself were found to be negligent in the inspection and in
writing the report. In addition, Krupp was found to be in breach of
contract (including the term of due care and skill implied by s
74(1) of the Trade Practices Act 1974 (Cth) and at common
law) and found to be liable under s 52 of the Trade Practices
Act 1974 (Cth) for misleading and deceptive conduct by
producing the report.
While not an unexpected finding by the court in this case, it is
a timely reminder to engineers (and indeed all professionals) to be
thorough in performing seemingly inconsequential or minor services
– and don't be afraid to ask for the manboat.
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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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