Slipping-up on the facts – Macari v Snack Brands Food Pty Ltd [2024] NSW SC 139

Introduction

McCabes acted for the successful defendant in the matter of Macari v Snack Brands Foods Pty Ltd [2024] NSWSC 139 where the NSW Supreme Court recently held that the plaintiff was unable to establish the cause of his slip and fall down a staircase, and thereby could not establish what reasonable precautions the occupier should have taken to prevent the plaintiff from slipping on the stairs.

Background

The plaintiff commenced proceedings in the Supreme Court of NSW against Snack Brands Foods Pty Ltd (Snack Brands) in relation to a slip and fall incident on 25 June 2018 at the defendant’s premises. Specifically, the plaintiff claimed that he was injured when he slipped down some stairs in the potato preparation area of the factory.

The plaintiff sued Snack Brands in negligence, alleging that it breached its duty of care to the plaintiff in failing to clean and remove contaminants from the stairs, failing to ensure a safe system of work, and failing to install handrails which extended down the entire length of the stairs.

The plaintiff pleaded that the stairs were contaminated with starchy water which had splashed out from the adjacent potato hopper. The plaintiff further asserted, when giving evidence, that there was potato debris on the stairs (as evidence by a photo take shortly after the incident).,but the plaintiff conceded under cross examination that he was guessing that the objects shown in the photo were potato debris.

The plaintiff also claimed that the handrail did not extend to the bottom of the stairs, which  contributed to him falling.

Principles

• The NSW Supreme Court reiterated the long-establish principle that stairs are inherently but obviously risky and it is incumbent on pedestrians to take extra care when negotiating stairs, which has been held by the Courts in numerous decisions since Wilkinson v Law Courts Ltd [2001] NSWCA 196.
• Although an occupier owes a duty of care to take reasonable precautions against foreseeable risks of injury, this does not mean it is the guarantor of the plaintiff’s safety.
• The plaintiff bears the onus of proving the factual circumstances of a claim, before then having to prove breach of duty and causation pursuant to the relevant provisions of the Civil Liability Act (NSW) 2002.

Decision

Justice Cavanagh accepted that Snack Brands owed a duty of care to the plaintiff to take reasonable precautions to prevent the accident, but stated at [68] that:

“Although the standard of care imposed on a defendant which engages workers to work in its premises may be high, the defendant is not the guarantor of the plaintiff’s safety. Accidents are often caused by a combination of unfortunate and coincidental circumstances. The fact that an accident or incident occurred at the workplace is not generally a sufficient basis to attribute responsibility to a defendant.”

Furthermore, His Honour reiterated the long-accepted reasoning in Wilkinson v Law Courts Ltd [2001] NSWCA 196, that stairs are inherently but obviously dangerous.

His Honour noted that the critical determining factor in the case would be factual findings concerning the cause of the incident and held that the plaintiff may well have slipped due to a contaminant on the stairs, but the plaintiff bore the onus of establishing what the contaminant was, or alternatively what it was that caused him to slip.

His Honour found there was no evidence of previous incidents of workers falling on the stairs due to potato debris and therefore the defendant was not on notice that preventative measures were required.  Further, His Honour was not satisfied that cold water on the stairs caused the plaintiff to fall, which was the plaintiff’s alternate cause of the slip and fall.

Further, even if the plaintiff did establish that he slipped on water or potato debris, His Honour held:

1. The stairs were non-slip and complied with the relevant Standard(s) when constructed.
2. The defendant’s witnesses and the plaintiff gave evidence that they had not found the stairs to be slippery at any time prior to the plaintiff’s fall.
3. There was no evidence of earlier accidents or reports or complaints regarding the stairs that would have alerted Snack Brands of the need to make the stairs safe.

His Honour found that the handrail not extending the length of the stairs was not causally significant given the plaintiff’s evidence that he was holding both handrails when he slipped.

In summary, His Honour said at [64] that:

“Giving the plaintiff the benefit of the doubt and assuming that he was not the author of his own misfortune only leads to a finding that the plaintiff slipped on the steps for reasons which have not been established. There may be a number of possibilities but neither the positioning of the handrail nor the presence of starchy or boiling starchy water on the steps caused his accident. In other words, he has not established that which he pleaded as the cause of his accident.”

The plaintiff was therefore found to face two insurmountable difficulties:

1. He did not establish what caused him to fall; and
2. He did not establish that there were any reasonable precautions which the defendant should have taken which would have prevented him slipping.

Accordingly, His Honour entered a verdict for the defendant.

Why this case is important

The decision highlights the onus the plaintiff bears in establishing breach of duty and causation, in this case – what caused him to slip and fall down the stairs.

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 prevented him slipping.

Further, the case highlights the importance of early investigations by the occupier and 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 a verdict in its favour.