An important lesson is to be learned from BHP Coal Pty Ltd and Ors v O & K Orenstein & Koppel AG and Ors [2008] QSC 141

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 $50 million.

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 inspected.

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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