In this article we outline four 2024 New South Wales decisions with positive liability outcomes for defendants to personal injury claims. Whilst there is always liability risk (particularly when a case is dependent on witness evidence) as well as commercial considerations, for appropriate cases these uncertainties are justified.
Gomez v Woolworths Group Limited [ 2024] NSWCA 121
The first decision was a claim by an appellant who slipped and fell on a piece of fruit which had been dropped on the floor at the entrance to the Met Centre Woolworths store in Sydney.
Woolworths conceded that it owed the appellant a duty of care and admitted that a piece of fruit was dropped on the floor by a customer at approximately 5:02 pm. However, Woolworths denied that it breached its duty of care. Woolworths argued that it had taken all reasonable precautions although acknowledged that a “service zero” hourly inspection was not carried out at 5:00 pm on the date of the incident.
The primary judge held that this failure constituted a breach of Woolworths’ duty of care. Woolworths’ failure to allocate an employee to undertake an additional closer inspection on the hour at the front of the store area also amounted to a breach of duty. However, addressing the additional breaches of the duty alleged, Dicker DCJ rejected the submission that Woolworths employees [one exiting the store and others manning the coffee-counter and self-service registers] should reasonably have seen the fruit prior to the incident and taken reasonable steps to ensure that the area was clean.
Regardless, his Honour held that even if the “service zero” system was complied with and a floor inspection of the front of store was carried out at 5:00 pm, the appellant’s injuries would not have been prevented where the subject fruit was deposited at 5.02pm. He found that causation was not made out and dismissed the claim.
On appeal, it was determined that the primary judge did not err in failing to find additional breaches of the duty owed by Woolworths. Her Honour Gleeson JA outlined that the exiting employee was not required to comply with the “clean as you go” system at the relevant time because he had just completed his shift and was off duty. As to the self-service register employee, the area where the fruit was dropped was out of his area of responsibility, the piece of fruit was difficult to detect, and it was not clear on the evidence that his line of sight enabled him to see the fruit. Also, there was no evidence that the employee responsible for the coffee-counter area should have inspected the front of store area pursuant to either the “clean as you go” system or the “service zero inspection”. In any event, these breaches of duty (if made out), together with the breaches of duty as found, were ultimately not causative of the appellant’s injury.
The appeal was dismissed with the appellant ordered to pay the respondent’s costs.
Islam v Linfox Australia Pty Ltd & Anor [2024] NSWCA 39
This matter involved an appeal challenging the factual findings made by the trial judge and her conclusions with respect to, among others, breach and causation.
The appellant was employed by Local Logistics as a delivery driver. Local Logistics assigned his services to Linfox. At the material time the appellant was delivering groceries for Woolworths to a home which required him to navigate a 75-step stairway 11 times. The appellant alleged that he suffered a back injury as a result and brought a damages claim against his employer and Linfox for negligence at common law.
The appellant claimed that he had called his supervisor at Linfox at the property, but prior to the delivery, making protestations that he feared it would cause him injury and that Linfox (through the supervisor) should have told him to cease the delivery, or have provided him with assistance. In the alternative, that his back injury had accumulated over time due to the nature of his work relying on an expert report from an ergonomist who opined that drivers required to deliver heavy loads or make deliveries to awkward sites should have been provided with the assistance of an “offsider”.
At first instance, the claim was dismissed by her Honour Gibbs DCJ with costs. Her Honour:
- Rejected the appellant’s account of the conversation with his supervisor, preferring evidence from the Linfox supervisor and the director of Local Logistics. She considered that the appellant was an unreliable witness with “poor, often wrong recollections of events and no credit” and “whose evidence was … tainted by inconsistency, omission, fabrication, and falsehood”.
- Did not accept, as to the appellant’s alternative case, that the precautions identified by the ergonomist could have avoided the injury to the appellant at the property, and she considered that the contention that an offsider should have been assigned implicitly accepted that the work was consistent with safe manual handling, but that the appellant’s was a special case.
- Determined that there was no breach of duty of care where the appellant did not disclose any pre-existing injuries or conditions that would affect his ability to work in Pre-Start Check – Fit for Duty form prior to his shift and neither Local Logistics nor Linfox were made aware of the nature of the delivery site. Further, her Honour accepted from the supervisor that the appellant had been instructed to pace himself and use an aid when completing the delivery.
- Found that there was no reliable evidence to establish that the appellant’s medical condition was caused by the nature of his work1. Relevantly, the appellant had a history of back pain and his orthopaedic expert gave considerable ground in cross-examination and his opinion on causation was significantly modified by the revelation that the appellant, far from taking two weeks to recover post incident as reported to his orthopaedic expert, had in fact undertaken a two-week security course.
The NSW Court of Appeal rejected the appeal on all grounds and awarded the respondents costs.
Macari v Snack Brands Foods Pty Ltd [2024] NSWSC 139
The plaintiff was on labour hire to Snack Brands Foods and sought personal injury damages for a slip and fall down metal stairs at a food processing factory operated by the defendant. He alleged that the stairs had four steps, two handrails either side (but which only extended down as far as the first step from the top), were situated near processing equipment (including a potato hopper),were constantly wet due to starchy water splashing out of a potato hopper and that he slipped on the steps because of the presence of a slippery substance.
This was a case which turned on its facts. There was no dispute that the plaintiff had fallen on the steps.
In his evidentiary statement the plaintiff deposed that he was descending the stairs, slipped on the last step and was unable to hold onto the handrails. However, contemporaneously, the plaintiff had reported that he was holding both handrails at the time he slipped. During cross-examination, the plaintiff accepted that he was holding onto both handrails and agreed that he had worked at the factory for three months going up and down the steps and found they were not slippery. He further agreed that the steps were designed to be non-slip when they were wet and that he previously found them not to be slippery when they were wet.
In further cross-examination, the plaintiff was taken to a photo taken of the steps post incident, which he relied on as evidence of the presence of potato debris in this area. The plaintiff conceded that he did not know that white dots in the photo were potato debris and that he was just guessing they were potato debris. Also, he agreed that he did not report the alleged presence of potato debris to Snack Foods post incident.
The defendant relied on a number of evidentiary statements as well as an expert liability report to the effect that:- (i) the steps were used regularly throughout every day and had not been found to be slippery, in the sense of being unsafe, on earlier occasions; (ii) there were no earlier accidents or reports or complaints about the steps and the defendant was not on notice that it needed to do something to the steps to ensure that they were safe; (iii) the steps were constructed of appropriate non-slip material and the steps could become wet from water splashed out of the potato hopper but they were designed for use in wet and dry conditions.
Ultimately, given the uncertainty as to how the incident occurred, His Honour Cavanagh J was not satisfied that the plaintiff had established what had caused him to slip. Judgment was entered for the defendant with an order for the plaintiff to pay its costs.
Karzi v Toll Pty Ltd [2024] NSWCA 120
The appellant, a dockhand in the employ of the respondent, made a nervous shock claim in the context of racist and offensive comments made to him by another staff member. That staff member was terminated, and the appellant was transferred to another depot. He remained working there for a period of time without any complaint or time off until the cancellation of his working visa and an injury to his lower back prevented the appellant for continuing to work for the respondent. He then lodged a worker’s compensation claim against the respondent.
The appellant alleged that the respondent owed him a duty of care to protect him from the risk of psychiatric injury caused by the conduct of other employees, that it breached that duty by failing to take reasonable precautions to prevent other employees from mistreating him and that his psychiatric injury was a consequence of that breach.
The primary judge, Olsson SC DCJ dismissed the appellant’s claim, finding that:
- While the respondent owed the appellant a duty of care to protect him from the risk of psychiatric injury caused by its employees, the risk of harm was not reasonably foreseeable [given his presentation as a willing, competent employee, who was not exhibiting psychiatric illness or taking time off or not managing at work and applying the principles in Kohler v Cerebos (Australia) Pty Ltd [2005] HCA 15];
- The respondent did not breach its duty of care having taken adequate precautions to ameliorate the effect on the appellant of the staff member’s conduct [investigation of the appellant’s complaint, termination of employment of the offending staff member and transferring the appellant to an alternate workplace]; and
- Even if liability was established, and notwithstanding her Honour’s finding as to the transient nature of his injury, the appellant was not entitled to damages for economic loss as he was not entitled to work in Australia and his earning capacity was substantially reduced as a result of his back injury.
The grounds of appeal included challenges to the primary judge’s findings on duty, breach and damages.
The Court of Appeal (Adamson JA, Leeming JA and Basten AJA) upheld the decision at first instance, dismissing the appeal with costs.
As a whole, these decisions confirm that each element of negligence is critical and they reinforce the importance of credible and consistent witness evidence in support of a client’s liability defence.
1 Civil Liability Act 2002 (NSW) s 5D.
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The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.
