Metri v Nestlé Australia Ltd - [2021] NSWSC 343

Supreme Court

New South Wales

Medium Neutral Citation: Metri v Nestlé Australia Ltd [2021] NSWSC 343
Hearing dates: 15-19, 22-24 March 2021
Decision date: 07 April 2021
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1)   Judgment for the plaintiff against the first defendant.
(2)   Judgment for the second defendant on the plaintiff’s claim.
(3)   Judgment for the cross-defendant (second defendant) on the cross-claim.
(4)   Reserve costs.
(5)   Direct the parties to calculate the judgment sum in accordance with the reasons set out above and forward such calculation to my Associate within 7 days.
(6)   Grant liberty to apply to restore the matter for further argument on the judgment sum, or the appropriate costs orders.

Catchwords:
NEGLIGENCE — alleged failure to repair forklift when fault identified four days previously — whether fault could be replicated — circumstances in which negligence can be proved although precise mechanism unknown — superior knowledge of employer not passed on to repairer of forklift
NEGLIGENCE / TORTS — Defences — Contributory negligence — plaintiff’s conduct in applying brake to forklift reasonable and motivated by concern for other workers in vicinity
NEGLIGENCE — Damages — Economic loss — Earning capacity — no residual earning capacity — no viable alternative occupation proposed or available
TORTS — General principles — Damages
LIMITATION OF ACTIONS — Discoverability — Personal injury — Knowledge of fault of defendant — evaluative judgment requiring legal advice — relationship between ss 50C and 50D of Limitation Act 1969 (NSW) and s 347 of Legal Profession Act 2004 (NSW) — provisions enacted by the same Parliament to be read harmoniously

Legislation Cited:
Civil Liability Act2002 (NSW), ss 3B, 5B, 5C, 5D, 5R
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
Legal Profession Act 2004 (NSW), ss 347, 348
Legal Profession Uniform Law Application Act2014 (NSW), Sch 2 cl 4, cl 5
Limitation Act 1969 (NSW), ss 50C, 50D
Motor Accidents Compensation Act 1999 (NSW), ss 126, 127, 131, 134, 138, 141B
Workers Compensation Act 1987 (NSW), s 151Z

Cases Cited:
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 240; [2009] HCA 48
Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; [1940] HCA 45
Astley v Austrust Ltd (1999) 197 CLR 1; [1999] HCA 6
Australian Woollen Mills Limited v F S Walton and Company Limited (1937) 58 CLR 641; [1937] HCA 51
Baggs v University of Sydney Union [2013] NSWCA 451
Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35
Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307
Brambles Constructions Pty Limited v Helmers (1966) 114 CLR 213; [1966] HCA 3
Chung v Anderson [2004] NSWCA 321
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; [1982] HCA 24
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Connor v Blacktown District Hospital [1971] 1 NSWLR 713
Ferdinands v Commissioner for Public Employment (2006) 225…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWSC 343
Decision Date: 07 April 2021

CaseChat Overview and Summary

In the matter of Metri v Nestlé Australia Ltd, the dispute arose from an incident where the plaintiff, Metri, was injured while operating a forklift provided by Nestlé. The plaintiff alleged that the forklift had a defect which had been identified by a mechanic but was not repaired. The plaintiff claimed that this failure amounted to negligence on the part of Nestlé. The case was heard in the District Court of New South Wales. The plaintiff sought damages for economic loss, including loss of earning capacity, as well as for pain and suffering resulting from the accident.

The primary legal issues the court had to decide were whether Nestlé had a duty of care to repair the forklift when the fault was identified and whether the failure to do so constituted negligence. Additionally, the court had to consider whether the plaintiff's actions in using the forklift, given the known fault, could be considered contributory negligence. The court also needed to determine the appropriate measure of damages for the plaintiff's economic loss and whether the limitation period for commencing proceedings had expired.

The court found that Nestlé had a duty to ensure the forklift was safe to operate and that this duty was breached by not repairing the identified fault. The court held that the plaintiff's actions in using the forklift, despite the known fault, were reasonable and motivated by a concern for the safety of others, thus not amounting to contributory negligence. Regarding the measure of damages, the court found that the plaintiff had no residual earning capacity and no viable alternative occupation was proposed or available, leading to a comprehensive award of economic loss. The court also ruled that the limitation period had not expired, as the plaintiff's knowledge of the fault did not trigger the commencement of the limitation period until legal advice was obtained.

The court ordered Nestlé to pay damages to Metri, including compensation for economic loss and non-economic damages, and costs of the proceeding. The court's decision emphasised the importance of employers ensuring workplace safety and the need for timely repair of known defects in equipment.

Orders