CCH Australia - 19 July 2002

The spray gun operator sued his employer and the occupier of the premises where the accident occurred. He claimed they had been negligent by failing to check that the cherry picker was in good working order. The reason why the basket detached from the cherry picker was said to be a fracture of a part called a slew pivot post.

The District Court at Perth found that there had been no way of knowing whether there had been a pre-existing fatigue crack on the slew pivot post. It had been repaired about 12 months before the accident, in connection with an overhaul of the whole machine, and the unit had been serviced a couple of weeks before the accident. The spray gun operator had failed to make out his case.

When the spray gun operator appealed, the Court of Appeal of the Supreme Court of WA confirmed the trial judge's finding that, on the balance of probabilities, there had been no proof that a pre-existing crack had led to the fracture. It had also been open to the trial judge to conclude that, if there had been a crack, it was unlikely to have been detectable by visual inspection. Its identification would have required non-destructive testing and, since the slew pivot post should have had an infinite life, neither the employer nor the occupier had had a duty to carry out such testing.

The spray gun operator had failed to make out the ground of his appeal.