When you enter a work place you are entitled to believe that you are entering a safe working environment to do your job description. Obviously accidents are not predictable and they do occur at random times but it is your employer’s duty to maintain a safe procedure and safe working environment. This was highlighted in the primary judgement of Metri v Nestle Australia Limited 2021 NSWSC 343 whereby a worker was injured using a forklift and the employer was held responsible on appeal.

 

Facts

On 16 August 2012, Mr Metri, an employee of Nestle was operating a forklift manufactured by Linde Material Handling and was moving within the Nestle warehouse. Without warning, the forklift began accelerating to great speeds not previously being seen by Mr Metri. Mr Metri attempted push the brake pedal however it did not work. After a few moments the vehicle suddenly stopped, causing Mr Metri to be thrown from the vehicle onto the floor. After being thrown from the forklift, it began accelerating again and it ran over Mr Metri’s foot. As a result of the accident, Mr Metri suffered an amputation below the knee on his left foot and significantly affected his capacity for work in  the future.

 

Liability

Nearly 2 weeks before the accident a similar incident occurred with another Nestle employee whereby the forklift accelerated and then suddenly stopped and accelerated again. Fortunately no one was hurt on this occasion and the incident was reported and the vehicle was tagged, which meant that a technician from the manufacturer was to repair the forklift. A technician from Linde Material Handling looked at the vehicle and found it to be driving as per the standards and untagged the vehicle.

Mr Metri filed claims against Nestle Australia Limited as his employer and Linde Material Handling Pty Limited as the 3rd party/ forklift manufacturer. Nestle filed a crossclaim against Linde Material Handling due to their technician not repairing the vehicle at the time he untagged the forklift.

 

Result at first instance

When the Supreme Court of NSW heard the matter His Honour Adamson ordered Nestle to pay Mr Metri approximately $2.9 million in damages and placed all liability against Nestle. His Honour Adamson placed great importance on the fact that Nestle previously considered that a seatbelt should be fixed to the seat and that is the duty of the employer to consider whether that it is appropriate to avoid placing their employees in places of peril. Nestle immediately appealed this judgment to the Court of Appeal on 7 April 2021.

 

Court of Appeal Proceedings

Nestle appealed this judgment on the basis that J Adamson identified the risk at an undue level of generality and that Linde was liable in negligence to Mr Metri. The Court of Appeal considered multiple issues which are noted below before dismissing the appeal made by Nestle.

With regards to the risk of harm it was identified that Nestle exposed Mr Metri to a risk which could have been avoided by way of a seatbelt or maintaining a proper reporting register as to the error of the vehicle and providing a detailed description of the error for the Linde technician to properly investigate. Nestle was aware of the risks that were associated with a vehicle with no seatbelt or not having a proper recording system.  The Court agreed that Nestle breached their duty by not providing a adequate system of communicating defects for Linde to properly consider the fault. As a result of Nestle’s negligence Mr Metri suffered harm , injury and loss. The Court of Appeal considered whether Linde was at fault and found that Linde did not owe a duty to exercise reasonable care because the Linde Technician was only given limited information to identify the defect and there was no duty to advise Nestle of additional safety precautions to consider upgrading the safety such as having seatbelts.

In summary the Court of Appeal dismissed Nestle’s appeal application and this stands as a reminder to employers that they must exercise a greater duty of care more than anyone else.