The Australian Centre for Agricultural Health and Safety reported that between 1 January and 30 September 2012, there were 102 “on-farm” injury events reported in Australian print media … including 37 fatalities. Of those injury events, nearly a quarter involved mobile farm machinery (not including farm vehicles, motor cycles, ATV’s, etc.).
It is a timely reminder of the risks that lurk within the many and varied farm machinery used by Australia’s farmers.
Liability to compensate those who are injured may include the importer, manufacturer, distributor, supplier, and farmer, or all of the above.
The legal arguments around where liability rests can be quite complicated, suffice it to say the overriding principles at the heart of the obligations on importers, manufacturers, distributors, suppliers and farmers, are similar. They are all under a duty to exercise reasonable care to prevent a foreseeable risk of injury to people using the machinery.
The manufacturer has an obligation to understand the machinery and eliminate those reasonably foreseeable risks of its use that can be eliminated, and to minimise those risks that can’t be eliminated. We are probably all familiar with a common risk minimisation strategy, namely instructions and signage about the safe use of the machinery.
The importer and/or distributor have an obligation to source the machinery from a reputable manufacturer, understand the product and ensure it is received from the manufacturer intact and distributed to the supplier together with all reasonably necessary information about how to use the machinery safely.
The supplier also has an obligation to understand the machinery; ensure it is received from the manufacturer intact and supplied to the farmer together with all reasonably necessary information about how to use the machinery safely; and not to recommend its use, or supply the machinery, when to do so would expose the user, or others, to an unreasonable risk of injury in the circumstances (for example, to supply machinery to a person whom the supplier has grave doubts as to their capacity to operate the machinery safely).
The farmer also has an obligation to understand the machinery and what is required to use it safely, and to ensure (as far as is reasonably practicable) it is used safely. In addition to ensuring its operators receive proper training and monitoring, this also includes, amongst other things, maintaining the machinery in a safe operating condition.
Insurance as a part of a farmer’s risk management strategy
Being human comes with inevitable ability to make mistakes… as simple as a moment’s inattention here and some forgetfulness there. Fortunately, for the most part, such mistakes occur without serious incident. However, a small number of all mistakes have dire consequences such as loss of limbs, paraplegia, quadriplegia or even death. The compensation payable by the negligent party in these situations is in the millions of dollars. If you don’t have the benefit of an insurance company to indemnify you in such circumstances, responsibility of the resulting legal proceedings will be yours.
You will need to find the compensation necessary to satisfy the claim some other way, probably by selling some or all of your assets.
It is also a good risk management strategy to have in place sufficient personal insurance to assist you and your family with cash flow should you be unable to work due to serious injury or death. This can include life insurance, total & permanent disability insurance, and income protection insurance.
If you haven’t had your insurance broker undertake a review of your insurance needs for some time, it may be time to do so. It is important to look not only at the types of claims you may be exposed to, but also the potential size of same and therefore the cover required.
What can I do if I’m a farmer, and I’ve been seriously injured by a piece of farm machinery?
First thing, get the best treatment and rehabilitation you can. This is your best chance to get yourself back doing as many of your pre-injury activities as you can. No amount of compensation will bring you the pleasure of being able to do what you want, when you want to do it.
This often has the benefit of providing urgent financial assistance in the form of compensation for loss of income, medical treatment and rehabilitation expenses.
If your injury was caused by your negligence alone, you may be limited to making a workers’ compensation claim. Similarly, if your injury was not caused by anyone’s negligence, you may be limited to making a workers’ compensation claim.
If your injury was caused by another’s negligence, including the negligence of the importer, manufacturer, distributor or supplier, you may have the option of making a claim in negligence against the negligent party/ies.
What should I do if I’m a supplier and I receive a written notice requesting particulars of the identity of the manufacturer of an allegedly defective piece of machinery that I have supplied?
You should immediately obtain legal advice. If you fail to provide particulars sufficient to identify the manufacturer within 30 days of the request, in certain circumstances you could be deemed to be the manufacturer and liable to be sued as such.