NSW Supreme Court: occupiers not guarantors of safety

By Nina Clark and Hugh Pearce

The NSW Supreme Court’s recent decision in Macari v Snack Brands Foods Pty Ltd [2024] NSWSC 139 highlights the responsibility of plaintiffs to prove their pleaded case. In Macari, the plaintiff failed to establish the cause of his fall and as a result could not establish what reasonable precautions the defendant, as the premises occupier, should have taken to prevent the slip.

Plaintiff’s allegations

On 25 June 2018, the plaintiff was working at the defendant’s potato chip factory. Although employed by a labour hire company, the plaintiff was placed at the defendant’s premises and worked under the defendant’s control.

The plaintiff alleged he sustained injuries after slipping on a contaminant on metal steps in the defendant’s potato preparation area next to a potato hopper. According to the plaintiff, the hopper was operational without a lid, allowing boiling, starchy water to splash on to the staircase. The plaintiff alleged that as he descended the steps, he held onto handrails until he reached the middle step, at which point the handrails stopped and the plaintiff lost his footing and fell.

The plaintiff alleged the defendant was negligent for, inter alia, failing to:

• clean or remove contaminates from the staircase;
• prevent starchy water from splashing onto the staircase; and
• install handrails which extended down the entire length of the staircase.

Factual dispute

Justice Cavanagh noted this was a case which turned on the facts (rather than any dispute as to applicable legal principles), and the main issue for determination was how the incident occurred.

It was accepted that the plaintiff had fallen at the defendant’s premises, but there were no witnesses to the fall, and the plaintiff gave conflicting accounts of what happened.

Immediately after the incident, both the plaintiff and the defendant’s employees completed incident reports. In his contemporaneous report, the plaintiff attributed his fall to a slippery substance on the steps, stating he was holding onto the handrails at the time he slipped. Likewise, the plaintiff’s evidentiary statement alleged he slipped because the surface of the step was wet and contaminated by starchy water from the potato hopper.

In his oral evidence, the plaintiff couldn’t confirm if water from the potato hopper was boiling and admitted to guessing about the presence of potato debris in the area. He also acknowledged the steps were designed to be non-slip when wet and he hadn’t found them to be slippery when wet in his three months of working there.

The defendant provided evidence from four employees, one of whom mentioned observing the plaintiff rushing right before the fall. Despite some discrepancies in the evidence of one of the employees, the defendant’s collective evidence suggested there were no prior complaints or incidents involving the steps (which were made of non-slip material, were designed for use in wet or dry conditions, and were used by all workers in the processing production area numerous times per day). Additionally, the defendant’s evidence indicated the water that splashed onto the steps was neither hot nor starchy.

Court’s decision

Justice Cavanagh noted that while the defendant had a duty to take reasonable precautions to prevent the incident, not every workplace accident involves negligence on the occupier’s part. He emphasised that although an occupier may have a high standard of care for personnel working on its premises, this did not make the occupier a guarantor of the workers’ safety.

In this case, the plaintiff couldn’t prove the position of the handrails was relevant to the accident’s cause. Thus, his argument relied solely on something causing him to slip. However, the court found no evidence the steps were defective, inherently unsafe, or poorly maintained at the time of the accident. There was also no proof of boiling or starchy water on the steps at the time of the accident, or that cold water would make them slippery and unsafe. The court rejected the claim of potato debris on the steps.

Ultimately, because of the inconsistencies between the plaintiff’s evidence and pleadings, he couldn’t prove why he fell. Consequently, the court concluded the plaintiff also couldn’t show any reasonable precautions which the defendant should have taken to prevent the incident.

Implications

This decision highlights the responsibility on plaintiffs to establish the factual basis for their claims, failing which it will be difficult to establish what reasonable precautions should have been taken by an occupier to prevent an incident. Justice Cavanagh also reiterated that expert liability evidence isn’t very helpful if it’s based on incorrect facts.

This case also confirms that while an occupier must take reasonable precautions to prevent accidents, this doesn’t equate to a requirement to guarantee safety.