Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Nestlé Australia Ltd v Metri [2021] NSWCA 303 Hearing dates: 22, 23 November 2021 Date of orders: 10 December 2021 Decision date: 10 December 2021 Before: Basten JA at [1];
Leeming JA at [153];
Brereton JA at [154]Decision: (1) Dismiss the appeal by Nestlé Australia Ltd against the judgment in the Common Law Division of 7 April 2021.
(2) Dismiss the cross-appeal by Toufic Metri filed on 7 July 2021.
(3) Order that Nestlé Australia Ltd pay the costs of Mr Metri and Linde Material Handling Pty Ltd in this Court.
Catchwords: NEGLIGENCE – breach – risk of harm – identification of risk – risk of forklift operator being dislodged while forklift in motion – risk of harm foreseeable
NEGLIGENCE – breach – reasonable precautions against risk of harm – whether reasonable person in appellant’s position would have taken precautions – failure to fit forklift with seatbelt or other restraint – failure to establish adequate system for communicating defects to enable diagnosis and repair
NEGLIGENCE – factual causation – whether failure to communicate defect caused harm suffered by plaintiff – causation established
Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B, 5B, 5C, 5D, 5E, 5F, 5L
Motor Accidents Compensation Act 1999 (NSW), ss 3B, 4; Ch 5
Workers Compensation Act 1987 (NSW), ss 151A, 151E, 151Z; Pt 5, Div 3
Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 250
Cases Cited: Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307
Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183
Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65
Category: Principal judgment Parties: Nestlé Australia Ltd (Appellant)
Toufic Metri (First Respondent/Cross-Appellant)
Linde Material Handling Pty Ltd (Second Respondent/Cross-Respondent)Representation: Counsel:
Mr G J Parker SC / Mr D O’Dowd (Appellant)
Mr D Hooke SC / Mr T Hickey (First Respondent/Cross-Appellant)
Mr M T McCulloch SC / Ms T A Berberian (Second Respondent/Cross-Respondent)Solicitors:
HWL Ebsworth Lawyers (Appellant)
Beilby Poulden Costello (First Respondent/Cross-Appellant)
Moray & Agnew (Second Respondent/Cross-Respondent)
File Number(s): 2021/102300 Decision under appeal
- Court or tribunal:
- Supreme Court of NSW
- Jurisdiction:
- Common Law Division
- Citation:
- Date of Decision:
- 7 April 2021
- Before:
- Adamson J
- File Number(s):
- 2015/82320
HEADNOTE
[This headnote is not to be read as part of the judgment]
The first respondent, Mr Toufic Metri, was employed by the appellant, Nestlé Australia Ltd (Nestlé) as a picker and forklift driver. On 16 August 2012, Mr Metri suffered serious injury resulting in the amputation of his left leg below the knee when a forklift which he was operating inexplicably sped up beyond its usual speed, then suddenly decelerated, throwing Mr Metri to the ground. The forklift continued moving and ran over his left leg.
The forklift was manufactured by the second respondent, Linde Material Handling Pty Ltd (Linde), and owned by Nestlé. Linde serviced and…
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- Case
- [2021] NSWCA 303
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether Nestlé had breached its duty of care to Mr Metri. Specifically, the court considered whether the risk of a forklift operator being dislodged while the forklift was in motion was foreseeable, and if so, whether Nestlé had taken reasonable precautions against that risk. This included examining the failure to fit the forklift with a seatbelt or other restraint, and the adequacy of Nestlé's system for communicating forklift defects to enable diagnosis and repair. The court also had to assess whether any failure to communicate a defect factually caused the harm suffered by Mr Metri.
The Court of Appeal found that the risk of harm was foreseeable and that Nestlé had failed to take reasonable precautions. The court reasoned that a reasonable person in Nestlé's position would have implemented measures such as fitting a seatbelt or establishing a more robust system for reporting and rectifying defects. The court also concluded that the failure to communicate a defect had caused Mr Metri's injuries.
Consequently, the Court of Appeal dismissed Nestlé Australia Ltd's appeal and Mr Metri's cross-appeal, ordering Nestlé to pay the costs of Mr Metri and Linde Material Handling Pty Ltd.
Orders
Orders of the court
(1) Dismiss the appeal by Nestlé Australia Ltd against the judgment in the Common Law Division of 7 April 2021.
(2) Dismiss the cross-appeal by Toufic Metri filed on 7 July 2021.
(3) Order that Nestlé Australia Ltd pay the costs of Mr Metri and Linde Material Handling Pty Ltd in this Court.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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