An item of plant or a substance may be intended for use for a particular purpose. It may be designed and manufactured for that purpose and the intended way by which it would be used is for that purpose. Hazards and risks associated with the particular purpose and the intended way of using it may be identified and appropriate measures applied to eliminate or control those hazards or risks.
Often there are many ways in which an item may be used for a particular purpose. Such ways of using the item may be common, or at least easily foreseen. Using the item in a way that was not intended may occur for a number of reasons (e.g. failure to read instructions, inadvertence, short-cuts or a lack of instruction or advice).
Legislation in some jurisdictions limits the obligation of the designer, manufacturer and others to ensuring the item is safe when ‘properly used’, for example in accordance with instructions provided with the item.
The Maxwell Review criticised the “proper use” test that applied to plant and substances in Victoria prior to 2004, suggesting that the section of the statute linked “…that phrase with the information or advice that is available relating to its use. If the plant or substance is not used in accordance with that information or advice, then, for the purposes of s.24 (of the then Victorian OHS Act), the plant or substance is not to be regarded as properly used”206
The Maxwell Review went on to recommend the term “when properly used” should be removed and a purpose test be applied in its place. Such a test would require a designer of plant for use at a workplace to ensure so far as is reasonably practicable, that the plant is designed to be:207
“…safe and without risks to health when it is used for any purpose for which it was designed or any other reasonably foreseeable purpose and also in respect of other relevant activities…”
‘Reasonable foreseeability’ in relation to the use of plant has been canvassed by the Full Bench of the NSW IR Court.208
We have carefully considered this issue and note that there is a difference between the purpose for which an item is intended to be used and the ways in which it may be used for that purpose.
We consider that a person who designs, manufactures or supplies plant or substances should ensure, so far as is reasonably practicable, that it is safe and without risks to health when used for the intended purpose. That obligation should extend to the safety of use, however it may be reasonably foreseen it may be used for that purpose. We do not consider this would be an onerous obligation.
We do not recommend, however, that the model Act extend as far as suggested in the Maxwell Report, to safe use for any reasonably foreseeable purpose. An item may be used for many possible purposes, there being specific risks associated with each purpose. The person undertaking the design, manufacture or supply of the item should take into account those specific risks and ensure they are eliminated or controlled, so far as is reasonably practicable. Controls applied to an item to control the hazards and risks associated with the intended purpose may not control hazards or risks associated with use for other purposes. The design etc would be directed at the safe and healthy use of the item for the intended purpose. A supplier may recommend and supply a particular item specifically for the intended purpose that may not be safe for other purposes, which they are not aware of but arguably could foresee.
We note that ‘use’, unless given an extended definition, will not ordinarily include things done with or to an item that support the use. We agree with comments made in the submissions and various reports and literature that the duty of care should require that the items be designed such as to enable activities such as construction, installation, cleaning, maintenance and repair of items to be undertaken safely and without risks to health. The limits on this extended application of the duty of care would be the intended purpose of the item and the qualifier of reasonably practicable.
We therefore recommend that the duties of care relating to plant, substances and structures apply in relation to any reasonably foreseeable activity undertaken for the purpose for which it was intended to be used.
