Thread: the yanks are at it again osario court case upheld

Ian

Thanks for a well thought out reply and you have clearly delved into the case at length, although like the rest of us were not at the trial and cannot witness the mood of the moment.

A final question. Would the same case have ever gone to trial in Australia and (I know, that's two questions) if it did, would it have been upheld?

regards
paul

A logical extension to the decision would be to withdraw all saws that do not have sawstop or equivalent from the market.
Will some law company start a class action for anyone who has been injured since sawstop came on the market?
Cheers,
Jim

Originally Posted by Bushmiller

A final question. Would the same case have ever gone to trial in Australia and (I know, that's two questions) if it did, would it have been upheld?

Paul,
as I understand NSW OH&S rules and Workcover's interpretation of same, in NSW a case similar to Osorio's would have considered (but not necessarily in this order)

• was Osorio trained to use the tool -- if NO the employer is probably liable
• was Osorio using the tool in accordance with his training -- if NO the employer is probably liable, because the employer should have had a system in place to monitor that employees are acting in accordance with their training (there are sanctions for employees how don't follow their training, but these can only be invoked after repeated and wilful deviation from the "approved" training)
• was Osorio supplied with the appropriate tool -- if NO the employer is liable, see my comment above re mitre saw vs table saw for cutting long stuff to length -- the decision on what is the appropriate tool might come down to expert testonmy
• was Osorio supplied with a safe tool -- if NO the employer is liable (in the Osorio case removing the blade guard would of itself render the tool "unsafe". If the guard was removed by the employer then the employer is laible, if the guard was removed by the employee the employer is still liable because he should have known the employees were making "unsafe" modifications to the tool. To get out of this later trap the employer would need to know that the tool was being modified, taken action to reverse the modifications, sanctioned the persons doing the modifications, and checked regularly (and randomly) that the modifications were not being repeated.
• could Osorio have been supplied with a safer tool (e.g. one with "flesh sensing technology") -- now we start to have fun. Argueably a saw fitted with the SawStop mechanism is "safer" than one without but then, as I mentioned above, a mitre saw is possibly a safer alternative for cross cutting, with a band saw used for the scribing rip cuts

The employer and their insurance company would need to successfully defend all of the above, and almost certainly more, before the lawyers started on the saw manufacturer or distributor.


But possibly the biggest effective difference between here and the US is the requirement that Australian employers carry adequate workers' compensation insurance, this means that rarely do these sorts of cases need to go searching for a person with deep pockets

Originally Posted by ian

But possibly the biggest effective difference between here and the US is the requirement that Australian employers carry adequate workers' compensation insurance, this means that rarely do these sorts of cases need to go searching for a person with deep pockets

Ian

A very telling comment for two reasons. Firstly because of the protection in place for an australian worker compared to america and secondly because if there were no deep pockets there would be no legal action.

What are the implications for table saws? Is it as simple as the manufacturers issuing a disclaimer that they will not be held liable for inappropriate use of their machines? I suspect that will not survive a legal onslaught in the US.

Will all saws have to have the new flesh detecting technology and will this escalte to handheld tools and equipment such as planers, routers, moulders etc? Once started. I don't see that it can stop.

Will all existing machinery have to be withdrawn from sale?

Is there a mechanism for appealing the decision? My knowledge of american law diminished rapidly when Perry Mason retired.

Regards
Paul

Paul,
It's a damned if you do and damned if you don't. If they withdraw existing saws it could be seen as an admission of liability. Any bets that some disgruntled employee of a manufacturing company is trawling through emails for mention of sawstop or other flesh sensing gadgets?
Wonder if they will make it compulsory on bandsaws. How would butchers get round that one?
Cheers,
Jim

Originally Posted by jimbur

Wonder if they will make it compulsory on bandsaws. How would butchers get round that one?
Cheers,
Jim

Jim

They'd have to go back to the meat cleaver. FIL used to have butchers shops. He had an employee (a very long time ago) called compo Bill. When old Bill was short of money he'd chop off the top of a finger for the compo. He must have done it at least twice!

Back to the issue. It will be most interesting to see how things develop. I can see cheap knock offs emerging from that large oriental country. My impression is that are not overly bothered by patents. It will probably result in a whole new wave of legal actions.

Regards
Paul

Originally Posted by Bushmiller

What are the implications for table saws? Is it as simple as the manufacturers issuing a disclaimer that they will not be held liable for inappropriate use of their machines? I suspect that will not survive a legal onslaught in the US.

Will all saws have to have the new flesh detecting technology and will this escalate to handheld tools and equipment such as planers, routers, moulders etc? Once started. I don't see that it can stop.

Will all existing machinery have to be withdrawn from sale?

Is there a mechanism for appealing the decision? My knowledge of american law diminished rapidly when Perry Mason retired.

from what I've read the issue has moved on from one about the right or wrongness of Osorio's damages award

From what I read, the US Consumer Product Safety Commission has looked at the annual cost (in the US) of table saw injuries and determined that the net cost to the community of requiring ALL new table saws to have "flesh sensing technology" is significantly less than the annual cost of the injuries the technology would prevent -- given this the CPSC has issued a draft determination mandating the technology on all new table saws.

Now please don't debate whether the "flesh sensing technology" technology will work in all situations, or with 100.00% reliability, or if Glass is laughing all the way to the bank.
Please just look at how a body like the CPSC will have run the numbers ...
Annual cost of table saw blade injuries = $2 billion (this estimate was prepared by Robert Lang at Popular Woodworking)
Number of table saws sold each year = 500,000
Cost to incorporate "flesh sensing technology" on each saw = $55 (evidence provided by a Bosch rep during the Osorio case)
Cost to add "flesh sensing technology" to all new saws sold each year = $27.5 million
Cost over 10 years of mandating "flesh sensing technology" = $27.5 million x 10 = $275 million
Now for the sake of this example, let's assume the "flesh sensing technology" only works 50% of the time (it's almost certainly much much more effective but I want to demonstrate how the numbers would be run by an organisation like the CPSC)
annual savings attributable to fitting "flesh sensing technology" to all saws = $2 billion x 50% = $1 billion

Cost over 10 years = $275 million
Annual savings = $1,000 Million
Why haven't we already mandated "flesh sensing technology" ?


I'm not sure if Australia has an equivalent to the US Consumer Product Safety Commission, it might be the state based Departments of Fair Trading.

But can it be provided for $55??????

David, who knows?
the number comes from a Bosch rep, and because it was during a court case the rep was presumably under oath at the time.

but even if the cost is $550 per saw, the numbers still say that over 10 years, the cost is $2.75 bill, while the savings (as per my post above) are $10 billion -- in economic terms a benefit cost ratio of almost 4

So who pays. I would not pay another $550 or even $55 extra.

Who is saving the money so who profits from this???

Originally Posted by DavidG

So who pays. I would not pay another $550 or even $55 extra.

Who is saving the money so who profits from this???

David
In my 9 to 5 life I deal with this sort of cost benefit stuff -- not health or power tools, another industry entirely

Let me provide you with a couple of similar examples

ONE
You can't legally sell a house in NSW that doesn't have a smoke detector
the seller wears the cost of buying and installing the detectors
the "community" enjoys the benefits of fewer deaths and injuries as a result of house fires
-- each person who dies in a fire represents an economic loss which impacts on our collective standard of living
-- each person hospitalised as a result of a house fire costs us, either because we are the tax payers who fund the health system or because every fire victim in a hospital bed means that the bed is not available for one us when we are ill.

then if smoke detectors mean that the number of houses totally destroyed by fire is reduced, those of us with property insurance benefit through lower insurance premiums

TWO
I'm sure you are a careful driver and consider yourself a better driver than 80% of other drivers, do you believe that you personally need a car fitted with
1) air bags
2) seat belts
3) anti lock brakes
4) stability control
5) a collapable steering column
But can you buy a car without most if not all of those features?


as to your personal willingness to pay for the technology ... that will always be your decision.
However, the decision makers wont care -- and I stress again, I am not decision maker in this area nor do I know or influence any of the decision makers in this area -- their calculus would be purely objective
Is the cost of requiring "flesh sensing technology" substantially less that the cost (actual and economic) of the injuries avoided -- if yes, and there is sufficient political will, then the technology will be mandated.


My personal view is that we as woodworkers have two broad choices
rail against the possibility that the cost of power tools will increase because some "shiny bum" civil servant has decided that all table saws must be fitted with a safety device that a person with a modicum of common sense doesn't need
or
work as a community to increase the training and skill level of wood workers so that the accident statistics don't justify introduction of the technology

whats really annoying is that sawstop isnt the only tech available and this doesnt cost when it stops Whirlwind Tool Patents Pending Saw Safety Technology Available for Assignment/License

Originally Posted by fubar

whats really annoying is that sawstop isnt the only tech available and this doesnt cost when it stops Whirlwind Tool Patents Pending Saw Safety Technology Available for Assignment/License

Hi fubar
why is it annoying?

as you say SawStop isn't the only technology currently available, and if the proposed performance standard

[requiring] a device to detect contact with the blade, or dangerous proximity to the blade [and] after detection, a mechanism to either stop or retract the blade before a cut deeper than 1/8" could occur.

were mandated or adopted by the industry as a voluntary requirement, you would expect many competing devices to appear on the market



I encourage everyone who has an opinion or interest on this issue to read the US Consumer Product Safety Commission report http://www.cpsc.gov/LIBRARY/FOIA/FOIA11/brief/tablesaw.pdf


to wet your appetite for ploughing through a dry government document, the CPSC report

• approximately 67,300 blade contact injuries require medically treatment each year with an associated injury cost of approximately $2.36 billion per annum
• 33,450 of these injuries are treated in emergency departments
• societal costs per blade contact injury amounts to approximately $35,000. This includes costs for medical treatment, lost time from work, product liability litigation, and pain and suffering
• the average cost for all medically treated consumer product related injuries is $22,000
• only about 2% of table saw-related injuries are work-related. i.e. 98% involve what the CPSC term "amateur or home woodworkers".
• approximately 30.9% of table saw operator blade contact injuries occurred on table saws where the blade guard was in use.
• The current voluntary standard for table saws does not appear to address those types of injuries.

but for me, the killer assertions from the CPSC were these:

Amateur woodworkers generally have little or no safety training, nor training in the proper use of the table saw.
home users typically have far less experience than professional woodworkers and may discover dangerous or difficult operations only by actually experiencing near accidents or problems.
The home woodworker also does not have the same OSHA-regulated protections in the home-based woodshop.
The focus on a safe environment in a consumer setting is dependent upon the knowledge and initiative of the home woodworker, but there is no oversight to educate and motivate the consumer to prepare as safe an environment as possible.

i.e. home woodworkers need to be protected from themselves

perhaps annoying was the wrong choice of word .
Its just that sawstop is all that is written about when there are other solutions out there