By Matthew Skelly, Senior Associate and Heidi Shooks, Lawyer.

On 22 February 2024 Justice Cavanagh of the Supreme Court of NSW found for the defendant in the context of a labour hire arrangement. The plaintiff failed to establish breach of the host employer’s duty of care partially as a result of the plaintiff being unable to identify the cause of the materialisation of the risk, which resulted in the incident.

The decision provides insight on the Courts’ approach to expert evidence and highlights the duty of care owed by a host employer to a labour hire employee, which to date, has been applied as an almost strict liability.

Importantly, the Court commented on the role of experts and the risks associated with providing assumptions to an expert which cannot be proven.

Background

The plaintiff was a labour hire employee working in a potato chip factory under the instruction of the defendant. In the course of his work, the plaintiff was required to traverse a small set of stairs which was located nearby a potato hopper. It was accepted that the potato hopper on occasion would cause water to spill out onto the stairs. The plaintiff alleged that the starchy water caused him to slip on the final step, and that the handrail on the stairs was too short to allow workers to safely traverse the final step.

The parties served various evidentiary statements and expert reports. The statements included suggestions that the plaintiff may have contributed to his fall due to rushing. They also raised doubts as to whether the plaintiff was holding onto the handrail until his slip and whether the stairs were slippery.

The Court criticised the expert reports on the basis they made general conclusions of fact and did not sufficiently comment on the risks of the slip or the mechanics of the fall. At paragraph 37 of the decision, Justice Cavanagh considered the value of the expert opinions became null as a result of the assumptions on which they relied having not been established. As a result, the expert evidence was of little assistance.

Findings

As to the question of breach and the duty of care, Justice Cavanagh confirmed the standard of care imposed on “a defendant which engages workers to work in its premises [is]… high”.  However, this duty is not absolute.

Though the judgment does not expressly state this, it appears his Honour is alluding to the reasonableness test in the duty of care contained in the Civil Liability Act 2002 and the practicality test contained in the duty at section 19 of the Work Health and Safety Act 2011 which informs the common law duty.

His Honour continued, without expressly identifying the cause of the slip and fall, and without the defendant being on notice of the relevant stars having been or becoming slippery, the Court was unable to identify precautions capable of being taken by the defendant to guard against the materialisation of the risk.  Therefore, the defendant was found not to have breached its duty of care owed to the plaintiff.

This case reinforces the importance of experts being properly instructed with provable assumptions and obtaining their opinion on breach and causation rather than on matters of fact.  An expert opinion is only admissible if they are based on established facts, which must first be proven on the evidence.

The full decision is available here: Macari v Snack Brands Foods Pty Ltd [2024] NSWSC 139