Macari v Snack Brands Foods Pty Ltd

[2024] NSWCA 282

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Macari v Snack Brands Foods Pty Ltd [2024] NSWCA 282
Hearing dates:	17 September 2024
Date of orders:	28 November 2024
Decision date:	28 November 2024
Before:	Mitchelmore JA at [1]; McHugh JA at [2]; Griffiths AJA at [3]
Decision:	The appeal is dismissed, with costs.
Catchwords:	NEGLIGENCE – causation – where appellant slipped on steps in respondent’s factory – where changes to case as pleaded and at trial – where cause of slip alleged to be either potato debris on steps or slipperiness of steps when wet due to wear and tear – whether primary judge erred in failing to be satisfied that appellant had established cause of slip
Legislation Cited:	Nil
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Anthony Macari (Appellant) Snack Brands Foods Pty Ltd (Respondent)
Representation:	Counsel: A D Campbell / M Wallis (Appellant) N Polin SC (Respondent) Solicitors: Robert Bryden Lawyers (Appellant) McCabes Lawyers (Respondent)
File Number(s):	2024/85017
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2024] NSWSC 139 Date of Decision: 22 February 2024 Before: Cavanagh J File Number(s): 2021/146445

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant was injured when he slipped on a set of metal steps at his workplace, a potato chip factory operated by the respondent. He sued the respondent in negligence. The appellant’s pleaded case was that he had slipped on “starchy water” which had splashed onto the steps out of the adjacent potato hopper, in which potatoes were allegedly boiled. At trial the respondent led evidence that the potato hopper never contained boiling water. This produced a change in the appellant’s case: it was alleged that he had slipped either due to “potato debris” being on the steps, or because the steps, despite being non-slip when installed, had since suffered wear and were therefore slippery when wet.

The primary judge was not satisfied that the appellant had established the cause of his slip to the requisite standard. That finding was the central issue on appeal.

The Court (Griffiths AJA, Mitchelmore and McHugh JJA agreeing) dismissed the appeal with costs, holding:

(1) In circumstances where the appellant’s account of his slip had changed across his pleaded case, evidentiary statements and cross-examination, and where the respondent’s witnesses had not been asked to comment on certain evidence, the primary judge did not err in failing to be satisfied that the appellant had slipped due to “potato debris” on the steps: at [45]-[55].

(2) As to the alternative hypothesis that the cause of the slip was the slipperiness of the steps, when wet, due to wear and tear, this was not established on the evidence. Three of the respondent’s witnesses gave unchallenged evidence that they were not aware of any prior incidents involving the steps, and the steps were not available for testing, having been replaced as part of a broader (and unrelated) remodelling of the factory: at [56]-[57].

(3) Finally, it was not erroneous of the primary judge to point to a range of possible causes of the appellant’s slip whilst declining to take the further step of inferring that the appellant had established that the cause of the slip was something for which the respondent was liable: at [58].

JUDGMENT

1. MITCHELMORE JA: I agree with Griffiths AJA.

2. MCHUGH JA: I agree with Griffiths AJA.

3. GRIFFITHS AJA: The central issue in this appeal is whether the primary judge (Cavanagh J) erred in finding that he was unable to be satisfied why the appellant’s foot slipped while he was walking down steps at his workplace and was injured. As the primary judge observed in Macari v Snack Brands Foods Pty Ltd [2024] NSWSC 139 (primary judgment or PJ) at [15], the case was one which turned on the facts and there were no disputed legal principles.

4. The appellant also challenges the primary judge’s finding that he had not established that there were reasonable precautions which the respondent company, which operated the business where the appellant was working, should have taken which would have prevented him from slipping.

5. For the following reasons, I propose that the appeal be dismissed, with costs.

6. I shall summarise the primary judge’s reasons for judgment before identifying the grounds of appeal and summarising the appellant’s submissions.

Primary judgment summarised

7. At the time of the accident, the appellant was working under a labour hire arrangement at the respondent’s factory in Blacktown. The factory produced potato chips. The appellant alleged that he sustained injury when he slipped down some metal steps in the potato preparation area, where he was working.

8. As pleaded, the appellant claimed that, at the time of the accident: (a) the potato hopper near where he was working was operational and contained potatoes boiling in starchy water; (b) there was no lid or cover to prevent starchy water from splashing out of the potato hopper; (c) the landing and steps in the area were contaminated with a slippery substance which was identified as starchy water which had splashed out of the potato hopper; and (d) while he was descending the steps he held onto both handrails until he reached the second of three steps (where the handrails ended), at which point he slipped and fell.

9. Set out below is a photograph of the steps which was taken on the day of the accident (the handwriting is that of the appellant):

10. The respondent accepted that the appellant had slipped and fell but denied any liability.

11. The appellant relied on five evidentiary statements, including two given by him. As will emerge, he gave different versions concerning the cause of his fall.

12. The respondent relied on evidentiary statements from four witnesses. This included three evidentiary statements by Mr Andrew McKellar, who was a production supervisor at the respondent’s factory. Mr McKellar prepared a written “Safety Incident Investigation/Corrective Action Report” (Report) concerning the incident, about which I will have more to say later. The Report included the photograph which is set out at [9] above, but without the appellant’s handwritten additions.

13. An evidentiary statement was also provided by Mr Peter Nedelkovski, who was employed as a team leader by the respondent when the accident occurred.

14. Three evidentiary statements were provided by Mr Kul Bogati, who was also employed by the respondent as a team leader and was involved in preparing the Report.

15. Two evidentiary statements were also provided by Mr Luke Phelps, who was employed by the respondent as an engineering manager.

16. The appellant did not challenge those parts of the evidence given by Messrs McKellar, Nedelkovski and Bogati which were to the effect either that they had not found the steps to be slippery when wet or dry or that, in the case of Mr Nedelkovski (who had worked for the respondent for 23 years), he had never witnessed anyone slip or fall on the steps since they were installed “about six or seven years” ago.

17. Expert evidence was also provided by both parties. It is unnecessary to say anything more about it, apart from noting that the primary judge described it as being “of little assistance” because it related to the grippiness of the steps as at the date of installation rather than the date of the accident (PJ[37]).

18. There were significant changes in the plaintiff’s case as originally pleaded below, in the plaintiff’s several written statements and, ultimately, in his oral evidence at the trial, all of which were highlighted by the primary judge.

19. The plaintiff’s pleaded case was that he had slipped due to “starchy water” which was on the steps and which had splashed out of the adjacent potato hopper, in which potatoes were being boiled (PJ[4]-[6]).

20. In his second evidentiary statement, the plaintiff said that, after he fell, he noticed that “the steps were contaminated with starchy water which had splashed out of the potato hopper”. He said that he also noticed that the “catching area” beneath the potato hopper “was clogged with potatoes and water”, which created a “goop”. He said that the whole area, including the staircase, was “very wet and slippery” and that, as he lay on the ground, the back of his shirt and pants and legs were soaked by “potato muck” (PJ[19]).

21. In contrast, in a written statement provided by the plaintiff around the time of his accident (which was tendered as Exhibit C below), he said that, although he was holding onto both railings when he was walking down the steps, he slipped and fell on the set of stairs “as if something slippery was on the steps” (PJ[22]).

22. The plaintiff’s oral evidence led to “further uncertainty” as to how the accident occurred (PJ[24]). His Honour summarised the plaintiff’s evidence in cross-examination, including the fact that the plaintiff said that he was unable to say whether the water from the potato hopper was boiling water, despite the pleaded case (PJ[25]). During his cross-examination, the plaintiff identified “white specs” (as shown in the photograph which is set out at [9] above), and he marked those “specs” as “potato debris” (PJ[25]).

23. When it was put to the plaintiff that the steps were not slippery, he said that he was surprised about that (ie, that they were slippery when he had the accident) because he had not found them to be slippery at any other time during the three months he had worked at the factory. He accepted that they were designed to be non-slip when they were wet and that he previously had not found them to be slippery even when they were wet (PJ[28]).

24. When it was put to the plaintiff that he did not know that the white “specs” in the photograph were potato debris, he agreed but said that they looked like potato debris. Ultimately, however, the plaintiff agreed that he was just “guessing” that they were potato debris (PJ[29]).

25. The effect of the defendant’s lay evidence was summarised by the primary judge as follows:

[52] Leaving aside any controversy as to the precise mechanics of the plaintiff’s fall, the effect of the defendant’s evidence is that:

(1) There is no earlier report or evidence of anyone else falling or slipping on the steps at any time prior to the accident;

(2) The steps were constructed of appropriate nonslip material and, at least when installed, were nonslip in the sense of satisfying regulatory requirements;

(3) All workers in the potato processing production area would walk up and down those steps a number of times each day;

(4) There was no prior complaint about the condition of the steps;

(5) Having regard to the incident report completed by Mr McKellar, it is possible that the steps were showing some wear at the time of the accident but there is no evidence that any person using the steps found the steps slippery because of any wear;

(6) The steps would become wet from water splashed out of the potato hopper but they were designed for use in wet and dry conditions; and

(7) The water which would splash onto the steps was not hot water or boiling water. Nor was it starchy water.

26. His Honour found that there was no evidence that the steps were defective or inherently unsafe, or had become unsafe, through lack of maintenance when the accident occurred (PJ[54]). Likewise, his Honour found that there was no evidence to support the plaintiff’s pleaded case that there was boiling or starchy water on the steps, nor any evidence that the presence of cold water on the steps rendered them slippery and unsafe to use (PJ[55]).

27. His Honour found that he could not accept that the steps were rendered unsafe when the plaintiff slipped because of potato debris which had splashed out of the potato hopper onto the steps (PJ[56]). His Honour noted that, although the plaintiff had described the white “specs” on the photograph as being potato debris, the photograph and that description were not put to any of the defendant’s witnesses; moreover, the plaintiff had said that he was just “guessing” (PJ[57]).

28. His Honour added that there was no evidence of potato debris on the steps ever causing any earlier problems and there was nothing in the Report prepared by Mr McKellar and Mr Bogati about potato debris (PJ[58]).

29. After noting that the plaintiff carried the onus of establishing what caused him to slip, the primary judge set out his primary findings at PJ[62]-[65], which are now reproduced:

[62] His evidence was inconsistent with his pleading and the concessions he made when giving evidence leave no room for a finding that the cold water which had likely splashed onto the steps made them excessively slippery. In his contemporaneous report he said something slippery made him fall but he did not mention potato debris. Further, the change in his evidence from boiling to cold water leaves a question as to how and why potato debris would be on the steps. Neither Mr Bogati nor Mr McKellar refer to the presence of potato debris.

[63] In all of these circumstances, it seems likely that the plaintiff may have fallen due a combination or coincidence of circumstances. His description of the mechanics of the fall raises the possibility that his right foot was on the edge of the upper step. There may have been something on the step (that is some form of contaminant) but the plaintiff has not established what it was. He may have been in a hurry, although he denies this. I cannot be satisfied that the presence of the cold water on the steps made them slippery and unsafe.

[64] Giving the plaintiff the benefit of the doubt and assuming that he was not the author of his own misfortune only leads to a finding that the plaintiff slipped on the steps for reasons which have not been established. There may be a number of possibilities but neither the positioning of the hand rail nor the presence of starchy or boiling starchy water on the steps caused his accident. In other words, he has not established that which he pleaded as the cause of his accident.

[65] I am satisfied that he fell because his foot slipped out from under him rather than that he fell because he missed the step completely but I am unable to be satisfied as to why his foot slipped out from under him.

Grounds of appeal

30. The appellant raised the following eight grounds of appeal:

1.   In circumstances where His Honour accepted the Plaintiff slipped on the stairs His Honour erred [at 56] in failing to find the steps were rendered unsafe at the time of the accident because of potato debris.

2.   His Honour erred in finding [at 57] that there was no evidence as to how the potato debris may have fallen onto the stairs.

3.   His Honour erred [at 63] in raising a possibility that the Appellant’s right foot was on the edge of the upper step.

4.   His Honour erred [at 64] in stating the Appellant had not established that which was pleaded as the cause of his accident.

5.   His Honour failed to take into consideration the evidence that the Plaintiff had potato muck on his clothes after the accident.

6.   His Honour failed to take into account the Appellant’s evidence that the floor of the factory was so slippery after the accident he was unable to get up off the ground.

7.   His Honour erred [at 65] in finding that he was unable to be satisfied as to why the Appellant’s foot slipped from under him.

8.   His Honour erred [at 72] in failing to find that there were reasonable precautions the Respondent should have taken which would have prevented him slipping.

Appellant’s submissions summarised

31. The appellant’s written and oral submissions may be summarised as follows.

32. The appellant described the central issue as being the primary judge’s failure to find on the evidence that the likely cause of the appellant’s slipping was “a contaminate on the floor such as potato debris”. The appellant accepted that he was unable to give any direct evidence about what caused him to slip, but emphasised that he did state in his second evidentiary statement that he noticed after his slip that “the steps were contaminated with starchy water which had splashed out of the potato hopper” and the area beneath the potato hopper was clogged with potato and water, which created a “goop”. Moreover, the plaintiff said that, after he slipped, the back of his shirt and pants and legs were soaked with “potato muck”.

33. The appellant submitted that Mr McKellar’s evidence was “unsatisfactory” when he said that he could not recall whether potato pieces were occasionally propelled from the hopper onto the stairs. This was said to be inconsistent with what Mr McKellar had recorded in the Report where, under the heading “Environmental Aspects”, he reported that: “Steps up to chopping platform are constantly wet due to splashing from the potato hopper. The steps have ben [sic] inspected and they are clean and not oily.”

34. In support of appeal ground 2, the appellant contended that the primary judge erred in finding at PJ[57] that there was no evidence as to how the potato debris in the photograph may have ended up on the floor, having regard to the plaintiff’s evidence during cross-examination that he saw that potatoes would hit the vat after coming down the conveyor belt and break into pieces. Later in his cross-examination, the appellant said that when the potato pieces hit the vat, “they splinter into a million pieces”.

35. The appellant emphasised that the primary judge did not make any finding that his evidence was unreliable; it was also significant that Mr McKellar did not deny that potato debris fell onto the floor.

36. As to ground 3, the appellant contended that the primary judge erred at PJ[63] in raising the possibility that the appellant’s foot may have been on the edge of the step as part of the “combination or coincidence of circumstances” that may have caused the fall. The appellant complained that it was never put to him that he slipped due to an overstep. He contended that the primary judge considered an irrelevant matter and one which was not supported by the evidence.

37. As to ground 4, and the significance which the primary judge attached to the fact that, as originally pleaded, the focus was on starchy water, the appellant said that the respondent did not object when the case took a different direction and was conducted on the facts as they emerged at trial. In particular, the focus shifted from starchy water contaminating the stairs to the identification of the contaminant as potato debris.

38. Ground 5 claims that the primary judge failed to take into consideration the appellant’s evidence that he had potato muck on his clothes after the incident, which he contended was important contemporaneous evidence and was corroborated by his wife’s evidence, who said that his clothes were wet when he came home that day.

39. Ground 6 claims that the primary judge failed to take into account the appellant’s evidence that the floor was so slippery after the incident that he was unable to regain his footing and needed assistance getting up. He contended that the slipperiness of the floor was presumably caused by the contaminants from the potato hopper.

40. Ground 7, in conjunction with ground 1, asserts that the primary judge erred in his central finding that he was unable to be satisfied why the appellant had slipped. The appellant submitted that the “ineluctable” inference from all the relevant evidence was that the slip was either caused by the stairs being rendered slippery by a contaminant emanating from the hopper or, alternatively, that they were rendered slippery when wet due to wear and tear.

41. In oral submissions, counsel for the appellant advanced a more limited argument. This was to the effect that, even though there was no direct evidence as to what the appellant actually slipped on, there was “circumstantial evidence that was available to the trial judge looking at most likely or perhaps on the balance of probabilities what was the cause of the plaintiff’s fall”.

31. Finally, as to ground 8, the appellant claimed that the primary judge erred in concluding that he had failed to establish any reasonable precautions which the respondent should have taken which would have prevented him from slipping. This ground necessarily depended upon the appellant succeeding in his challenge to the primary judge’s central finding that he had not established the cause of the slip.

32. It is unnecessary to summarise the respondent’s submissions because they are substantially reflected in the reasons why I consider the appeal should be dismissed.

Consideration and determination

44. It is convenient to address grounds 1 to 7 together as they all challenge different aspects of the primary judge’s findings of fact concerning the cause of the appellant’s slip and fall.

45. As is evident from the matters outlined above, the appellant gave different accounts of why he slipped. It is understandable that the primary judge was unwilling to view his evidence as establishing to the relevant standard that potato debris or wear and tear of the steps was the cause of his fall.

46. The appellant’s first evidentiary statement below contained scant detail about his fall. In his second evidentiary statement, the appellant gave evidence for the first time that the stairs were often covered in “starchy water” because the nearby hopper was used to “boil” potatoes. This statement was consistent with the pleading at [8B] of the amended statement of claim filed on 16 January 2023, where it was pleaded that, at the time of the accident, the potato hopper contained potatoes boiling in starchy water and there was no lid or cover to prevent the starchy water from splashing out.

47. The appellant was effectively forced to adopt a different approach when, on the first day of the trial, the respondent provided further statements which confirmed that the hopper never contained boiling water. Although the appellant had said in his second evidentiary statement that the catching area beneath the potato hopper was clogged with potatoes and water, creating a “goop”, his evidence that there was “potato debris” in the area did not emerge until his cross-examination, which has been outlined above.

48. Significantly, none of the respondent’s witnesses was asked to comment on the photograph, which became Exhibit B below, nor comment on the plaintiff’s evidence regarding potato debris. It is particularly notable that, although he took the photograph shortly after the accident, Mr McKellar was not asked whether he agreed with the appellant’s identification of the white “specs” as potato debris.

49. The only references to potatoes or potato pieces in Mr McKellar’s cross-examination appear in the following passages:

HIS HONOUR:

Q. Well, how do [the steps] get wet when the machines are running?

A. Potatoes come down like a slide and they go into a hopper containing water which is adjacent to the steps, and as they slide into the water, some splashing occurs.

COUNSEL FOR THE PLAINTIFF:

Q. And do potato pieces occasionally get knocked onto the floor and onto the stairs?

A. From that process, I do not recollect.

Q. You don’t recollect?

A. We do not have that process anymore.

Q. When did that process stop?

A. I don’t exactly remember, three, four years ago? I don’t know.

Q. Are you able to say how long after this incident and how long after June 2018 that the process was stopped?

A. I don’t recollect.

50. I see no error in the primary judge not accepting the appellant’s claim that those answers by Mr McKellar were unsatisfactory.

51. It is also significant that, when pressed in his cross-examination regarding his identification of the “specs” as potato debris, the appellant ultimately accepted that he was “guessing”.

52. In those circumstances, it is entirely understandable that the primary judge was unpersuaded that the plaintiff had discharged his onus of proof in establishing the cause of his slip.

53. Moreover, it is notable that the Report contains no reference to potato debris having been observed by either Mr McKellar or Mr Bogati, the authors of the Report, and neither was cross-examined on that particular matter.

54. For completeness, it might also be noted that it was not put to any of the respondent’s witnesses that the appellant had potato muck all over his clothes after the incident. It is true that the appellant’s wife gave unchallenged evidence that his clothes were wet when he came home after the accident, but that falls short of suggesting that the cause of the wetness was potato muck or potato debris.

55. Having regard to all these matters, I am not persuaded that the primary judge erred in not finding that the cause of the appellant’s slip was because there was potato debris on the steps when he fell.

56. As to the appellant’s alternative hypothesis, namely that the primary judge ought to have concluded that the cause of his slip was related to the slipperiness, when wet, of the steps which had deteriorated with wear and tear, that submission is unsupported by any evidence. As the primary judge noted at PJ[54], there was “no evidence that the steps were defective or inherently unsafe, or had become unsafe, through lack of maintenance at the time of the accident”.

57. It is also difficult to reconcile the appellant’s complaint with the fact that three of the respondent’s witnesses said either that the steps were not slippery when wet or dry, or that there had been no prior incidents involving a slip or fall on those steps. As noted above, none of this evidence was challenged. The appellant’s case below on this issue was also rendered difficult by the fact that the particular set of steps were not available for testing because they had been replaced as part of an overall remodelling of the factory. There is nothing to suggest that this remodelling occurred as a result of the accident.

58. Finally, in circumstances where the primary judge was not satisfied that the appellant had established either of the alternative hypotheses as to the cause of his slip and fall, I discern no error in the primary judge taking the further step of not inferring that the cause was some other reason which was within the responsibility of the respondent. It was not erroneous of the primary judge at PJ[63] to point to a range of possible causes while pointing out that the plaintiff had failed to establish the actual cause. His Honour was plainly well aware that the onus below was carried by the appellant, not the respondent.

59. For all these reasons, I reject grounds 1 to 7 inclusively.

60. As noted above, ground 8 only arises if the appellant succeeded in establishing at least one of those earlier grounds. Accordingly, it is unnecessary to determine ground 8.

Conclusion

61. I propose that the appeal be dismissed, with costs.

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Decision last updated: 28 November 2024