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Establishing facts critical in awarding finding in negligence

  • Newsletter Article
  • Published 23.04.2024

Macari v Snack Brands Foods Pty Ltd (NSWSC 2024)

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Key Takeaways

The plaintiff bears the onus to establish the precise mechanism of injury, together with the reasonable precautions the defendant should have taken to prevent the injury. Where these factors cannot be proven, the plaintiff’s case must fail.

Brief Facts

The plaintiff sustained workplace injuries on 25 June 2018 whilst working as part of a labour hire arrangement at a potato chip factory located in Blacktown, NSW. He slipped down a set of stairs that were located close to the potato processing equipment, and provided evidence that they were constantly wet due to starchy water splashing out from the nearby equipment.

It was alleged that the defendant, the occupier of the factory, was negligent in their failure to clean or routinely inspect the stairs, prevent the starchy water from splashing onto the stairs and install hand rails which extended down the entire length of the stairs. The defendant denied these allegations, and also relied on s151Z(2) of the Workers Compensation Act 1987 on the basis that the plaintiff’s employer, Workforce International Group Pty Ltd, was also negligent such that any liability imposed upon the defendant should be reduced on account of the employer’s notional liability.


Justice Cavanagh ultimately found in favour of the defendant, as in his view the plaintiff was unable to establish precisely how his injury occurred. Justice Cavanagh heard from a number of witnesses and liability experts throughout the course of the hearing, and ultimately accepted the defendant’s evidence that:

  1. There was no earlier report or evidence of anyone else falling or slipping on the steps at any time prior to the accident.
  2. The steps were constructed of appropriate nonslip material and, at least when installed, were nonslip in the sense of satisfying regulatory requirements.
  3. All workers in the potato processing production area would walk up and down those steps a number of times each day.
  4. There was no prior complaint about the condition of the steps.
  5. Having regard to the incident report, it is possible that the steps were showing some wear at the time of the accident but there is no evidence that any person using the steps found the steps slippery because of any wear.
  6. The steps would become wet from water splashed out of the potato hopper but they were designed for use in wet and dry conditions.
  7. The water which would splash onto the steps was not hot water or boiling water. Nor was it starchy water.

Coupled with the plaintiff’s own evidence that he had not found the stairs to be slippery prior to his fall, Justice Cavanagh did not find any evidence that the stairs were inherently faulty or unsafe, or that there was any water (starchy or otherwise) present on the stairs that would have caused the plaintiff to fall.

Whilst accepting that stairs are inherently dangerous, Justice Cavanagh concluded that not all accidents are caused by someone else’s negligence and awarded judgment in favour of the defendant. Given this, his Honour did not make any findings on the defendant’s arguments regarding s151Z(2) implications.


This case is a reminder that each matter will turn on the unique set of facts before the Court, and that obtaining relevant evidence from employer witnesses will ultimately best assist in the defence of a negligence claim.

Kate Barton

Senior Associate

P: 02 8257 5837

Email Kate