Hot potato: inconsistent evidence in the context of an occupier’s duty of care

09 May 2024

The New South Wales Supreme Court found in favour of the employer where the employee continuously gave conflicting evidence as to the occurrence of the injury.

In issue

The Court considered the following issues:

  • Whether it was reasonably foreseeable that a person would lose balance on a staircase, due to a number of possible causes, and the effect of inconsistent evidence.
  • Whether the defendant, as the employer, breached its duty of care, and was liable for all slips within its premises.
  • The quantum of damages.

The background

At the time of the incident, the plaintiff was employed by a labour hire company but had been placed at the defendant’s premises. The defendants engaged in the production of potato chips. While working under the control of the defendant, the plaintiff slipped on metal steps/stairs sustaining an injury. The plaintiff alleged that the steps in question were contaminated with a slippery substance, namely starchy water which had splashed out of an unlidded potato hopper. The plaintiff also alleged that the handrails did not extend the full length of the stairs. The plaintiff made a claim for damages.

From the plaintiff’s evidentiary statements and in evidence at hearing, the plaintiff’s accounts of the subject incident varied and were inconsistent. The pleadings alleged that he slipped on starchy water emanating from the adjacent potato hopper. Other versions included 'potato muck', 'starchy water' which varied between boiling and cold in temperature, and potato debris.

This raised the question of how potato debris came to be on the steps. There were no witnesses to the injury.

The decision at trial

His Honour Justice Cavanagh found in favour of the defendant. This decision was made largely on the basis that the plaintiff’s evidence was conflicting. His Honour was unable to conclude that the defendant had breached its duty of care to the plaintiff, as there were no reasonable precautions that the defendant should have taken which would have prevented the injury occurring.

It was held that the plaintiff may have fallen due to a combination or coincidence of circumstances. The plaintiff slipped on the steps for reasons which had not been established. His Honour concluded there were a number of possibilities, but neither the positioning of the handrail, nor the presence of starchy or boiling starchy water on the steps caused the accident.

His Honour held that the stairs were obviously dangerous, and that the defendant had taken all reasonable precautions to minimise the potential of injury arising. The stairs in question had not been subject to earlier accidents or complaints and they were used regularly and had not been found to be slippery.

His Honour went on to assess the quantum of damage despite the claim being unsuccessful. In weighing up the evidence, His Honour noted the previous medical records were not available to the medical practitioners completing expert reports, and therefore the experts did not have a complete picture of the plaintiff’s medical history. His Honour was critical of this fact and commented on the relevance of completing expert reports in an independent and balanced way.

Implications for you

This decision illustrates that an employer will not always be liable in damages to an employee who suffers injury on work premises. In this case, the plaintiff worker failed to establish the cause of his accident. His evidence contradicted his pleaded case as to the cause of his fall on the stairs. The decision highlights the importance and potential benefits of putting a claimant/plaintiff to proof of their claim.

Although a short decision, it provides an example of the need to ensure that any pleadings are consistent across all stages of the proceedings to establish the credibility of that evidence. It also draws attention to the need to cross-check the pleadings of opposing parties to make sure that they are consistent, and to ascertain whether there is scope to question the credibility of them.

It is also a reminder to ensure your experts have all the adequate records to qualify their opinion.

Macari v Snack Brand Foods Pty Ltd [2024] NSWSC 139

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