A coal mining equipment specialist whose workers misjudged the height of a bridge, crashing into it while transporting an excavator, has won a court case against its insurer.

The Federal Court heard NSW Hunter regional business Kerembla Pty Ltd provided contract mining services to Hunter Valley Operations (HVO).

On May 19, 2021, Kerembla employees loaded an excavator onto the back of a prime mover and trailer to move it from the HVO mine site to Kerembla’s Muswellbrook headquarters. They had wrongly measured the height of the load at 4.3m.

Travelling along Lemington Road, the Kerembla employees successfully passed one bridge with a 5m clearance but when trying to pass through a 4.9m clearance bridge, the excavator collided with the bridge.

The bridge is owned by HVO, which made a claim against Kerembla in relation to the damage to the bridge. Kerembla, in turn, made a claim with its provider XL Insurance Company, trading as Brooklyn Underwriting, under its public and product liability policy.               

XL knocked back the claim, saying exclusion clauses meant it was not liable.

The exclusions included the “delivery or collection of good to or from any vehicle” and “loading or unloading of any vehicle”.

Discussion turned around several definitions including “on any worksite” and “tool of trade” with XL arguing Lemington Road was not a worksite and the prime mover, trailer and excavator were not a tool of trade.

Justice Jackman ruled XL Insurance liable to indemnify Kerembla for the policy.

“The HVO site was a site where work was performed for or in connection with the business of Kerembla. Although XL submitted that Kerembla’s own premises at Muswellbrook did not fall within that concept, I cannot see any basis in the language used in the definition of ‘worksite’ which would so confine that concept.”

Further, he said the public road known as Lemington Road, was the most direct route between the HVO site and Kerembla’s premises, and was a “worksite”.

“As I have said above, the prime mover and the trailer were being used by Kerembla ‘on any worksite’, being Lemington Road, at the time of the incident. Accordingly, the prime mover and the trailer satisfied the first sentence of the definition of ‘tool of trade’,” Justice Jackman said.

Click here to read the full ruling.