Australia: Inherently Dangerous Products - A Painful Cut

Last Updated: 7 April 2009
Article by Jocelyn Kellam

Drew v Makita (Australia) Pty Ltd [2008] QDC 223

  • An inherently dangerous product and a safe system of work were considered by the court.

In these proceedings, the Queensland District Court awarded the plaintiff in the sum of $194,454.86 for personal injuries in negligence and as a result of an alleged breach by Makita of section 75AC in Part VA of the Trade Practices Act. At the time of the accident the plaintiff was operating a circular saw manufactured and supplied by the defendant. While using it, his left hand came into contact with the exposed blade of the circular saw.

In respect of the saw Makita made the following concessions:

  • the design of the machine was such that a guard should return to the closed position within 0.3 of a second;
  • it was a deemed manufacturer of the saw under the Act; and
  • in relation to the negligence claim, it caused the saw to be manufactured, and it packaged and marketed the saw.

The court recognised that the saw was inherently dangerous. It quoted Justice Smithers in Ransley v Black & Decker (A/Asia) Pty Ltd (1977) 3 TPR 138 at 140; 2 TPC 343 with approval:

"It has to be remembered that this representation [concerning an electric saw] is not made to all and sundry, to the dwarfs, to the giants, to the blind, to the deaf – it is made by reference to the reasonable conditions which must exist in relation to the operation of any machine of this kind. Obviously it is a dangerous machine...[W]hen you approach a safety razor you have to take note that it is sharp and you have to adjust it accordingly. When it comes to machines like this which are likely to lop off limbs, anybody knows that great care must be taken."

The plaintiff said that he had adopted a safe system of work in carrying out the task in hand on the day of the incident. He alleged that the accident was caused by a design defect in the saw which the defendant knew or ought to have known.

Makita's submissions included that "the plaintiff simply does not know the circumstances in which his hand was injured and is simply inventing a story designed to exculpate himself from his own inadvertence and to put blame on the defendant following the fortuitous receipt of a recall notice relating to this particular saw model."

In the result the court found that when the plaintiff reached a position in the cutting process between 400mm and 200mm from the end of the cut, part of the object being cut fell from the working-bench. The plaintiff instinctively attempted to grab it but instead grabbed hold of the exposed blade of the saw thereby suffering serious injuries to his left hand. At that time, however, the safety guard of the circular saw was jammed or stuck in the open position and was therefore not able to retract to the closed position when removed from the cut. This was because the saw had a design defect, in that it was possible for an operator of the saw in the normal course of its operation to "jam" or "stick" the safety guard, either consciously or unconsciously, in the open position.

Makita also pleaded that "the incident was caused solely by a deliberate act, negligence or inadvertence on the plaintiff's part". The court was not persuaded that Makita had discharged its onus of proof. It found that the plaintiff did not contribute to his injury in any way.

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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