Slipping-up on the facts (again) – Macari v Snack Brands Foods Pty Ltd [2024] NSWCA 282

Introduction

In a follow-up to our case note here on the NSW Supreme court decision of Macari v Snack Brands Foods, McCabes was successful in upholding the first instance judgment in favour of its client on an appeal brought by the plaintiff in the NSW Court of Appeal – Macari v Snack Brands Foods Pty Ltd [2024] NSWCA 282.

The Court of Appeal upheld the finding of the trial judge that the appellant had not established what caused him to slip and fall when traversing down a set of stairs, and thereby the respondent could not be held liable for the incident by the mere fact that it occurred, or based on inference as to what the cause may have been.

Background

The plaintiff commenced proceedings in the Supreme Court of NSW against Snack Brands Foods Pty Ltd (Snack Brands) following an incident on 25 June 2018 when the plaintiff fell down a set of steps in the potato preparation area of Snack Brand’s factory premises.

The plaintiff initially asserted that the slip and fall was caused by “starchy water” on the steps which had splashed from the potato hopper. However, at trial, he adopted an alternative contention, asserting that the steps were slippery due to the presence of “potato debris” which had originated from the adjacent hopper.

Primary Decision

The primary judge, his Honour Justice Cavanagh found that the plaintiff had given inconsistent evidence as to what precisely had caused him to slip and fall on the stairs.

His Honour reiterated the long-accepted reasoning in Wilkinson v Law Courts Ltd [2001] NSWCA 196, that stairs are inherently but obviously dangerous, and thus the plaintiff bore the onus of establishing precisely what the contaminant was, or alternatively what it was that caused him to slip.

His Honour was not satisfied that the plaintiff was able to clearly establish on the evidence presented that either “starchy water”, wear and tear of the steps, or the presence of potato debris caused his fall.

Additionally, His Honour stated that the mere fact that an incident occurred was not a sufficient basis to attribute responsibility to a defendant. Absent the plaintiff establishing precisely what caused his slip and fall, it remained unclear what precautions Snack Brands could have taken so as to prevent the incident from occurring.

Accordingly, the primary judge entered a verdict for Snack Brands.

Issues on Appeal

The appellant appealed the decision of Justice Cavanagh. Whilst 8 grounds of appeal were identified, the primary contention by the plaintiff was that the primary judge’s findings of fact were in error, and there was sufficient evidence available for the Court to find that the most likely cause was the presence of “potato debris” contamination.

The appellant also asserted that the primary judge erred in having identified a range of other potential causes of the plaintiff’s fall as opposed to those contended for by the plaintiff.

Decision on Appeal

The Court of Appeal unanimously upheld the primary judge’s decision in a fairly short decision.

In summary, the Court found that found that the primary judge had not erred in finding that the appellant had not established that either “potato debris” and/or wear and tear to the subject stairs, had caused his fall.

The Court noted that Snack Brands’ adduced lay witness evidence of three employees who gave unchallenged evidence to the fact that the “steps were not slippery when wet or dry” and that “there had been no prior incidents involving a slip or fall on those steps”. It was noted that the contention was never put to these witnesses directly in cross-examination that the stairs that day were ‘worn’ or contaminated by ‘potato debris’.

Additionally, the Court found that in circumstances where the appellant had not established either of the alternative hypotheses as to the cause of his slip and fall, the primary judge did not err in identifying a range of other possible causes for his fall.

Accordingly, the appeal was dismissed with costs.

Why this case is important

The NSW Court of Appeal’s decision reiterates the position that the plaintiff bears the onus of establishing the precise cause of an accident which may befall them, in this case, what caused the plaintiff to slip over and then fall down a set of stairs, which the evidence demonstrated were slip-resistant (even when wet) and met all relevant standards.

Absent establishing the precise mechanism of what caused the plaintiff to fall, it is difficult (if not impossible) for the plaintiff to then establish what reasonable precautions, if any, a defendant should have taken which would have prevent him slipping. As the Court of Appeal confirmed was correct, and as the trial judge stated, there could be a vast multitude of possible reasons why someone may fall.

As we noted in our earlier case note, and the Court of Appeal decision further highlights, it is critical that early investigations are undertaken by the occupier following an incident at its premises. This includes obtaining contemporaneous Incident Reports and Witness Statements as soon as possible after an incident. In this case, the ability to identify and call four supportive witnesses who gave generally consistent evidence was critical in the defendant securing the verdict in its favour.