BHP Coal Pty Ltd and Ors v O & K Orenstein & Koppel AG and Ors

[2008] QSC 141

Supreme Court of Queensland

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For Australian Law.

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Interrogate

Catchwords

1. Tort
2. › Negligence
3. › Duty of care
4. › Professional persons
5. › Engineers
6. › Design of structural modifications to machinery
7. › Whether engineer breached duty of care in designing stiffeners
8. › Whether engineer should have had regard to fact that engineering standard was current but subject to review
1. Tort
2. › Negligence
3. › Causation
4. › Whether collapse caused by modification of original design
5. › Whether collapse caused by use outside design operating parameters
6. › Whether collapse caused by failure of inspector to examine entire machine
1. Tort
2. › Negligence
3. › Contributory negligence
4. › Whether use of machine outside operating parameters contributed to collapse
5. › Whether failure to inspect more often contributed to collapse
6. › Whether failure to act immediately prior to collapse contributed to collapse
7. › Law Reform Act 1995 (Qld), ss 5, 10
1. Contract
2. › Construction and interpretation
3. › Contract for inspection of machinery
4. › Whether implied term that inspection limited to what can be safely seen from walkways
5. › Whether verbal instruction amounts to variation of contract
6. › Whether previous inspections vary terms of contract

Quick Take

General damages for loss of use are recoverable for a profit-earning chattel whose specific contribution to profit cannot be quantified, assessed by reference to interest on the written-down value of the chattel. Zappulla v Perkins does not preclude such an award; it is confined to cases where the actual monetary loss from loss of use is known and quantified. Where a plaintiff replaces damaged machinery with more expensive equipment when rebuilding was possible and less expensive, damages are limited to the cost of rebuilding unless the plaintiff proves the higher expenditure was reasonable.