Nestlé Australia Ltd v Metri [2021] NSWCA 303

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Nestlé Australia Ltd v Metri [2021] NSWCA 303 Hearing dates: 22, 23 November 2021 Date of orders: 10 December 2021 Decision date: 10 December 2021 Before: Basten JA at [1]; Leeming JA at [153]; Brereton JA at [154] Decision: (1) Dismiss the appeal by Nestlé Australia Ltd against the judgment in the Common Law Division of 7 April 2021. (2) Dismiss the cross-appeal by Toufic Metri filed on 7 July 2021. (3) Order that Nestlé Australia Ltd pay the costs of Mr Metri and Linde Material Handling Pty Ltd in this Court. Catchwords: NEGLIGENCE – breach – risk of harm – identification of risk – risk of forklift operator being dislodged while forklift in motion – risk of harm foreseeable NEGLIGENCE – breach – reasonable precautions against risk of harm – whether reasonable person in appellant's position would have taken precautions – failure to fit forklift with seatbelt or other restraint – failure to establish adequate system for communicating defects to enable diagnosis and repair NEGLIGENCE – factual causation – whether failure to communicate defect caused harm suffered by plaintiff – causation established Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B, 5B, 5C, 5D, 5E, 5F, 5L Motor Accidents Compensation Act 1999 (NSW), ss 3B, 4; Ch 5 Workers Compensation Act 1987 (NSW), ss 151A, 151E, 151Z; Pt 5, Div 3 Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 250 Cases Cited: Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65 Metri v Nestlé Australia Ltd (No 2) [2021] NSWSC 518 Category: Principal judgment Parties: Nestlé Australia Ltd (Appellant) Toufic Metri (First Respondent/Cross-Appellant) Linde Material Handling Pty Ltd (Second Respondent/Cross-Respondent) Representation: Counsel: