Nestlé Australia Ltd v Metri

1. [1]

   BASTEN JA: In 2012 Toufic Metri was employed by Nestlé Australia Ltd (Nestlé) as a picker and forklift driver at its Arndell Park premises in western Sydney. On 16 August 2012 Mr Metri was operating a vehicle known as a “reach forklift” when the vehicle changed speed erratically, throwing him from the driver’s seat onto the ground in front of the vehicle, which then ran over his left leg. Mr Metri suffered a serious injury resulting in amputation of his left leg below the knee.

2. [2]

   In 2015, Mr Metri commenced proceedings against Nestlé, alleging negligence on its part and claiming damages. The forklifts were manufactured and maintained by Linde Material Handling Pty Ltd (Linde), an Australian subsidiary of an international engineering and vehicle manufacturing business. Nestlé denied liability, but also brought a cross-claim joining Linde in the proceedings. More than four years after he commenced proceedings, and more than three years after Linde was joined as a cross-defendant, Mr Metri joined Linde as a second defendant in his proceeding.

3. [3]

   The proceedings in the Common Law Division appear to have had a chequered history. Although commenced on 18 March 2015, the hearing did not take place until March 2021. The material before this Court provides no explanation for that delay. However, following an eight day hearing in March 2021, the trial judge, Adamson J, with commendable expedition handed down judgment two weeks later. [1] The judgment upheld Mr Metri’s claim against Nestlé, but dismissed his claim against Linde and dismissed the cross-claim brought by Nestlé against Linde. The judgment of 7 April 2021 did not produce a final calculation of damages, but did include a table which permitted calculation by the parties of the outstanding items. Those calculations resulted in an award of damages of a little more than $2.9 million. In a subsequent judgment, [2] the judge made costs orders in favour of Mr Metri. Neither the amount of the judgment nor the costs orders are challenged on this appeal, except consequentially.

4. [4]

   The appeal brought by Nestlé is directed solely to the findings of liability, challenging the finding of liability on the part of Nestlé to Mr Metri and, in the alternative, seeking judgment on the cross-claim against Linde. The notice of appeal was filed on 22 June 2021. On 7 July 2021 Mr Metri filed a defensive cross-appeal seeking judgment on his claim against Linde in the event that his judgment against Nestlé was overturned. Finally, on 20 July 2021 Linde, which had been entirely successful in resisting the claims against it at trial, filed a notice of contention, supporting the judge’s conclusions in its favour on four different grounds.

5. [5]

   Mr Metri’s claim against Nestlé at trial identified four particulars of negligence, namely a failure to take any of three precautions identified as, (i) adopting a system of maintenance and replacement of forklifts in accordance with Linde’s recommendations; (ii) implementing a system to allow the forklift operator’s description of a fault to be communicated to the technician carrying out the repairs; and (iii) fitting the operator’s seat with a seatbelt or other means of minimising the risk of the driver being dislodged from the vehicle. [3] The judge accepted all of these as reasonable precautions, none of which were taken. She further held that the consequent breaches of duty materially contributed to the harm suffered by Mr Metri.

6. [6]

   Nestlé challenged each step in the judge’s reasoning on liability. It also challenged the finding that Linde bore no part of the responsibility for the plaintiff’s injury. As will be explained below, Nestlé’s challenge with respect to its own liability should be rejected, as should its challenge to the absence of liability on the part of Linde. The cross-appeal by Mr Metri can be dismissed. He was agnostic as to which party bore responsibility for the damages and will retain his judgment against Nestlé.

Governing law

1. [7]

   The proposition that the plaintiff was agnostic as to which of his employer and a third party would be responsible for payment of damages reveals an important underlying aspect to the legal basis of the claim. Had it been a workplace injury claim, the quantum of damages recoverable from his employer would have been constrained by Pt 5 of the Workers Compensation Act 1987 (NSW). He would then have had a powerful interest in ascribing responsibility to Linde, and where liability was to be apportioned, maximising its share of the responsibility.

2. [8]

   The statement of claim identified the forklift as a motor vehicle for the purposes of the Motor Accidents Compensation Act 1999 (NSW) and, the vehicle being unregistered, Nestlé was the owner of the vehicle pursuant to s 4(1)(b) of that Act. Section 3B(1)(b) states that Chs 3-6 of the Act apply in respect of an injury that results from the operation of a motor vehicle that gives rise to a work injury claim. The injury gives rise to a work injury claim if it is “an injury to a worker caused by the negligence or other tort of the worker’s employer”: s 3B(3)(b). The exclusion of the operation of the Workers Compensation Act is achieved by excluding “motor accident damages” from the definition of “work injury damages”. [4] There is also an exclusion from entitlement to further compensation under the Workers Compensation Act where a person recovers “motor accident damages”. [5] Finally, s 151E(2) in the Workers Compensation Act states that Pt 5, Div 3, which regulates awards of damages to injured workers, does not apply to damages to which Ch 5 of the Motor Accidents Compensation Act applies.

3. [9]

   The next step in the statutory scheme turns on the operation of the Civil Liability Act 2002 (NSW). Various provisions of the Civil Liability Act do not apply to awards of damages to which Ch 5 of the Motor Accidents Compensation Act applies. [6] However, there are exceptions contained in s 3B(2), which, relevantly for present purposes, allows Pt 1A (Negligence), Divs 1-4 and 8, to apply to motor accidents. Importantly for present purposes, Div 2 (Duty of care) and Div 3 (Causation) were engaged, as was Div 8 (Contributory negligence).

4. [10]

   Those principles were well understood by the parties and applied by the trial judge. It followed that, even if an apportionment of damages between the employer and a third party were required, the complex provisions of s 151Z of the Workers Compensation Act would not be engaged. Further, as there is no challenge to the assessment of damages, there is no need to consider the operation of Ch 5 of the Motor Accidents Compensation Act.

Factual background

1. [11]

   As Nestlé and Linde were keen to emphasise, the precise behaviour of the forklift which resulted in the plaintiff being dislodged from his seat and injured was never identified. Had the circumstances been unprecedented, the plaintiff might have faced significant difficulties in establishing negligence on the part of his employer. However, a central element in his case was that, far from being unprecedented, the events which resulted in his injury replicated an earlier incident of similar erratic behaviour which had occurred only six days before his accident, which had been reported to Nestlé and had been investigated by Linde. A central factual element therefore turned on the investigations of the earlier incident, and the system of communication between Nestlé and Linde.

2. [12]

   In these circumstances, it is convenient to address the factual background in the following order:

(a) the nature and operation of the forklift

1. [13]

   The evidence described two kinds of forklift, namely a counterbalance forklift and a reach forklift. The former (counterbalance) is the one commonly seen operating in open areas. The “forks” or tines are at the front of the vehicle, the driver faces the front and the body of the vehicle is behind the driver. The vehicles are equipped with tyres and are capable of navigating outdoor sites. By contrast, the reach forklifts, one of which was the vehicle involved in the present case, have the operator sitting with the tines on his or her right, with a bulky mast up and down which the fork carriage moves. An example is shown in the following picture.

2. [14]

   The reach forklift is designed for indoor use and has three load bearing wheels. As the operator faces the controls, the mast and fork carriage are to the right and when travelling, the vehicle will progress to the operator’s left. The single wheel sits under the operator and is described as the drive wheel. It can be turned by use of the small steering wheel in front of the operator. The foot pedals and the operator’s controls are shown in the following three pictures.

3. [15]

   The operator’s seat is to be seen in the following picture.

4. [16]

   The height of the operator’s seat (which is adjustable), when in the middle of the range, is approximately one metre above ground level. There is one step up from the ground to the operator’s cabin. As can be seen, there is a skeletal metal rail around the cabin, but it is not closed in on any side. The operator steps in from the “front” of the vehicle (that is, opposite the forks and mast).

5. [17]

   It follows from this configuration that when driving forward down an aisle in the warehouse, as the plaintiff was at the time of the accident, he was looking over his left shoulder in the direction of travel. That was also the direction in which he fell and the direction in which the vehicle was moving when it trapped his left leg.

6. [18]

   The vehicle was battery operated. When unladen (as it was at the time of the accident) it weighed three tonnes. Its speed was regulated so that it could not exceed 12.5km/h, which is approximately double a fast walking speed for a person. There is one other feature which should be noted, although it appears to have played no part in the proceedings at trial: the seat was fitted with a safety switch which was activated if the operator left the seat. It appears that it brought the vehicle to a stop, but not abruptly. The fact that Mr Metri was run over after he was dislodged was not attributed by any party to a failure of the safety switch in the seat.

7. [19]

   The machine in question had the designation “432”. It was described as a model R16HD forklift. There were in evidence “operating instructions” for Linde electric reach trucks including model R16HDS, which was assumed to have the same features as vehicle 432. The document was undated. The technical description of the vehicle in the operating instructions identified the braking systems in the following terms: [7]

8. [20]

   Tests were carried out by a consultant engineer, John Hickey, on 3 December 2012, a report of which was included in the joint expert engineering report prepared on 11 February 2020. The tests were carried out on two vehicles, one being forklift 432. The braking test for the seat switch brake, which “by design, activates only the regenerative braking system”, indicated that, at a maximum speed of 12.5km/h (or 3.5m/sec) the stopping distance for the vehicle was between 4.1 and 5 metres, with corresponding retardation rates. Clearly the device would not have prevented injury, once the plaintiff left the operator’s seat. The hydraulically operated footbrake, on the other hand, permitted a stopping distance of between 1 and 1.45 metres. There was an issue at trial as to whether the plaintiff activated the footbrake.

(b) the circumstances of the accident

1. [21]

   The earliest record of the event was prepared by Brett Lloyd, who attended the scene of the accident and sent an email to David Neighbour reporting. As described by the trial judge, Mr Lloyd was the line manager who was the plaintiff’s direct supervisor for about a year before the accident. [8] Mr Neighbour was the distribution centre manager with responsibility for the physical operations and equipment at the Arndell Park premises. [9]

2. [22]

   In his email to Mr Neighbour, Mr Lloyd recorded that by the time he reached him, the plaintiff was already in shock from the severe pain in his left leg, but noted that there was very little blood loss. Mr Lloyd continued:

3. [23]

   This statement suggested an unexplained increase in speed to a speed faster than the plaintiff had experienced in many years working with the forklifts, followed by a braking feeling, but no indication that he had applied brakes although that might be implied from the statement that he “could not stop”.

4. [24]

   Mr Neighbour visited the plaintiff in hospital the following day and prepared notes headed “Toufic Metri – Statement 17/08/2012 14:45pm”. They recorded that they had been prepared “post hospital visit”. The notes (in typed form) read as follows:

5. [25]

   Mr Lloyd’s note to Mr Neighbour identified the time of the call which he had received over the two-way radio seeking assistance at about 1:30pm. That call must have been virtually contemporaneous with the plaintiff’s accident. An incident investigation form was completed on 17 August 2012 and signed by Mr Lloyd as the person in charge of the work area at the time. In addition to the description in Mr Lloyd’s own email to Mr Neighbour, the investigation report recorded that the plaintiff had been called at 9:30am to be offered four hours work to commence at 11:20am. He had reported shortly after 11am: he had therefore been at work for two hours at the time of the incident. The statement also indicated that no “pre-operational forklift checklist was found.” However, checklists for the previous three days were in evidence and none had noted any defect.

6. [26]

   The plaintiff gave a brief description in a statutory declaration attached to a compensation claim form dated 10 October 2012. The plaintiff, then in hospital, gave a description of the accident which was taken down by his daughter, and appeared in the claim form as follows:

7. [27]

   Troy Tabone, the facilities manager at the site, attended the accident with Mr Lloyd. He also prepared an email report to Mr Neighbour the following morning, Friday 17 August 2012 at 11:12am. Mr Tabone and another forklift driver, Jason Connell, appeared to be those primarily responsible for making the plaintiff comfortable while awaiting the ambulance. He noted that Mr Lloyd “went straight to the [forklift] and hit the emergency stop button”. Mr Tabone then described the plaintiff as “shaking and in shock” at which point he took an emergency blanket from the first aid kit he had brought and placed it on top of the plaintiff. He then recorded: “Toufic was saying it ‘it took off the fork took off’.” Although the incident investigation form suggested that there were investigations being carried out by the police and WorkCover, no statement obtained by either of these bodies was relied on in evidence. (It will be necessary to return to Mr Connell’s evidence shortly, as he was the driver of the same forklift a week earlier when a similar problem had arisen, but he had not been injured.) In a statement dated 12 November 2012, Mr Connell told an investigator that while he was treating the plaintiff the plaintiff had said to him, “the forklift just went crazy.”

8. [28]

   The plaintiff spoke to an insurance investigator on 29 October 2012 when he was still in hospital. He described the operation of the forklift in the following terms: [10]

9. [29]

   The language at par 30 is ambiguous as to whether he thought the forklift had actually responded to his braking or whether it had responded independently.

10. [30]

    Mr Lloyd gave a statement to the investigator on 8 November 2012 in which he recounted the conversation with the plaintiff in a passage which was not read, presumably because the terms were similar to those in his email to Mr Neighbour, which was in evidence.

11. [31]

    John William Hickey was engaged by Nestlé’s lawyers shortly after the accident to investigate the circumstances. He attended at Nestlé’s premises on 28 August 2012 and spoke to various persons, including Mr Connell. Mr Hickey collected a volume of documentary material, to some of which reference will be made below, but does not appear to have interviewed the key witnesses.

12. [32]

    Years later, the plaintiff signed an evidentiary statement, dated 4 October 2017 (almost two years after commencing proceedings) which included the following propositions. First, he described the safety mechanism known as a “dead man’s brake” stating: [11]

13. [33]

    The word omitted has been crossed out by hand in the copy before this Court, and read “immediately”. The index to the appeal book did not indicate any evidential rulings with respect to that statement, although markings elsewhere suggested that some sentences had not been pressed. It may be that the word “immediately” was not pressed. However, as noted above, there appears to have been no evidence as to whether the seat braking mechanism was faulty, although that is an implication from Mr Metri’s evidence.

14. [34]

    His description of the actual incident of being dislodged from the vehicle is more discursive than other descriptions and has the air of preparation by a solicitor. In any event, so far as the material was read, it stated:

15. [35]

    Subsequent statements by the plaintiff referring to the incident were largely directed to denying that he could have been driving with his right foot on the left pedal, and therefore had turned sideways to face the direction the vehicle was moving.

16. [36]

    The judge’s reading of the evidentiary statement of 4 October 2017 was that the plaintiff had been “about to apply his right foot to the brake but that he had come off the forklift before he had in fact applied it.” [12] That reading was open, although there was a degree of ambiguity about it. Mr Metri resolved the ambiguity when cross-examined by senior counsel for Nestlé in the following exchange: [13]

17. [37]

    The trial judge concluded:

18. [38]

    The only unequivocal statement that he had actually applied the brake, was the note prepared by Mr Neighbour after visiting the plaintiff in hospital. The language is clearly a summary or a paraphrase; nobody asked the plaintiff to sign the document. The proposition that he was asked to confirm it three times suggested that the Nestlé managers were anxious to get that statement from him. It was not what he had said to Mr Lloyd at the time; nor was it what he had said in his statement to the investigator in October 2012, to which the trial judge did not refer in this context. [14] However, nothing turns on the factual finding.

(c) the circumstances of the earlier incident

1. [39]

   The service records for forklift 432, tendered by Nestlé, revealed that the vehicle had required repairs by Linde on eight occasions in the nine months preceding the accident. It is necessary to have regard to two particular entries, but before doing so two general comments may be made.

2. [40]

   First, although there was a maintenance agreement between Nestlé and Linde which required quarterly servicing of vehicles, the only scheduled service which occurred in the nine months preceding the accident was a thousand-hour service carried out in early February 2012, when the meter on the vehicle had logged 16,544 hours. While there were statements in the evidence that the forklifts were in operation throughout the three hour shifts, seven days a week, in fact vehicle 432 appears to have averaged seven hours per day in the six months prior to the accident.

3. [41]

   Secondly, the service history listings maintained by Linde are an important source of information as to the communications between Nestlé and Linde. They will be revisited when the issue of a systemic failing in communications is addressed below.

4. [42]

   The first of the two entries of particular significance occurred on 1 March 2012. The information supplied to Linde was “no traction book light flashing”. These appear to be two separate complaints. There was a warning light on the operator’s display which showed if the traction controller had failed a “self test”. There was also a warning light, showing an open book, indicating that a service was due. [15] Neither appeared to have any direct relevance to the cause of the accident. Although the service was logged as having been carried out on 6 February, the entry for 1 March showed the same figure on the hour meter as at 6 February. In any event, the significance of the entry relates to the response apparently noted by the same mechanic (N15) who dealt with the vehicle for most of the incidents recorded in the service history, Mr Carlos Raad. The record did not show any work done on 1 March, rather it recorded:

5. [43]

   In this account, “LDC” refers to the Linde digital computer, being a module which controlled the electric motor. When diagnosing faults or defects, the technician had a machine, colloquially called the “truck doctor”, which he plugged into the LDC of the vehicle under investigation. It had specific codes for particular faults, none of which involved excessive speed. However, no explanation was provided as to the reference to the LDC power module “playing up occasionally”. Although there appears to have been conversation between Mr Raad and someone at Nestlé, there is no documentary record in the evidence to which this Court was taken of a decision not to replace the power module on or before 7 July 2012.

6. [44]

   Jon Gorman, who was then manager for technical support and national training at Linde and responsible for fleet maintenance, gave evidence that the cost of replacing the LDC control module was in the order of $1,000. [16] Following the work recorded on 1 March 2012, he said he had organised a repair quotation, but Nestlé decided not to proceed; he assumed, due to cost. [17] In further cross-examination by senior counsel for Nestlé, Mr Gorman stated that the failure of the LDC would not cause the truck to accelerate or to brake suddenly. However, his basis for those opinions was not explored: he had no qualifications as an engineer, or as a computer expert, or in IT. [18]

7. [45]

   Two witnesses were called for Nestlé, but neither gave evidence about this matter.

8. [46]

   The second incident of importance was an incident which occurred six days before the plaintiff’s accident, namely on 10 August 2012, and involved the same vehicle 432, then being driven by Jason Connell. The first recorded statement of Mr Connell was a statement to the investigator made on 12 November 2012. He described his history with the vehicle in the following terms:

9. [47]

   Mr Connell also gave a statement on 10 December 2018 which continued his account with the following:

10. [48]

    Mr Lloyd did not address this conversation in his statement to the investigator of 8 November 2012. He did, however, address it in his evidentiary statement of 7 December 2018, by then more than six years after the events in question. That statement relevantly read as follows:

11. [49]

    Mr Lloyd then asserted a “invariable practice” of the Nestlé supervisor reporting the nature of the problem to the Linde technician. He further asserted that on 10 August 2012 he had sought out Mr Raad and had a conversation with him in relation to the information provided by Mr Connell. That description was inaccurate, because Mr Raad was not at work on that day.

12. [50]

    Importantly for present purposes, there was a reasonably close similarity in the description given by Mr Connell of what happened to him on 10 August and the description given by the plaintiff of his experience with the same vehicle six days later. Mr Connell gave evidence at trial, but was not cross-examined by counsel for Nestlé.

13. [51]

    Mr Connell was cross-examined by counsel for Linde. He was asked if there were times when a battery sensor became disconnected and would cause the forklift to slow down. He said the vehicle would be “shut down”, [19] but that never happened while he was driving it. He agreed that there were expansion joints between some of the concrete floor slabs in the warehouse, and it was suggested that the sensor might disconnect when driving over an expansion joint. He said that he had never seen that happen. [20] He was taken through his entry with respect to 10 August 2012 in the log-out book and basically confirmed his description of the vehicle speeding up beyond the normal driving speed (which he had identified as about 10km/h) and then behaving as if the brakes pulsed although he did not activate the brake pedal himself. [21]

(d) the systems operated by Nestlé and Linde

1. [52]

   As noted above, forklift 432 was one of a number of similar vehicles which were first leased from Linde and then purchased by Nestlé. As at August 2012, Nestlé had an agreement with Linde described as the “Forklift Preventative Maintenance Agreement”, signed on behalf of Linde on 31 November 2011. Although the agreement provided that preventative maintenance would be effected in accordance with a servicing schedule, it is clear that the agreement extended to the carrying out of repairs. The agreement stated:

2. [53]

   The evidence as to how the system for repairs operated in practice was uncontroversial and was summarised by the trial judge in the following passage:

3. [54]

   Mr Raad was the Linde technician who carried out all the relevant repairs on vehicle 432. (He was identified in Linde’s records as “N15”, a designation which he expressly accepted referred to him. [22] )

4. [55]

   Nestlé kept a small spiral book, partly with printed headings and columns and partly unprinted, which gave details of the date on which a vehicle was “tagged out”, the name and signature of the employee who tagged the vehicle out, together with a final heading “Tag Removed – Sign+Date”. In the pages in evidence, the final column had been completed in only one of about 20 entries (and that one was undated).

5. [56]

   The reasons for tagging-out, which appear to have been conveyed to Linde when the technician was called out, were brief. Thus, with respect to the entry for vehicle 432 on 29 May 2012, the reason, read, “Rolling forward hand/brake”. The Linde service history entry for that date identified the description as “truck rolling forward”.

6. [57]

   There is a further entry for 29 February 2012 which, in Nestlé’s book, read, “not driving, no forward/back”. There is no entry in Linde’s record for 29 February, but there is an entry for 1 March 2012 which reads “No traction book light flash”, which fills the room available under the heading “description” for the job.

7. [58]

   These somewhat cryptic entries, which appear to reflect the tag-out reasons contained on the tag, are generally consistent with the brief instructions recorded in the service history. Of the eight entries identified above in relation to the service history for vehicle 432, the brief description in Linde’s records were “seat adjuster broken” (07/11/2011); “repair damaged battery tray” (13/01/2012); “no traction book light flash” (01/03/2012); “truck rolling forward” (29/05/2012); “RF unit bracket broken” (21/06/2012); “slow drive on reverse” (23/07/2012); and “machines speed is playing up” (13/08/2012).

8. [59]

   The last entry related to the tag-out created by Mr Connell on 10 August: there was no explanation as to the delay of three days before a call was made to Linde, but it included a weekend.

9. [60]

   Mr Raad’s evidence describe the system at Linde, which involved a device in his mechanic’s vehicle giving details of the jobs he was required to attend. As the calls would frequently go out at a time when he was engaged on another job, he also got a text message. To carry out work, he would complete what other work he had in hand and drive to the Arndell Park premises of Nestlé. Tagged out vehicles were located in a part of the yard near the administrative offices of Nestlé. How often Mr Raad would speak to the operator who signed the tag-out book is unclear. There is no evidence in the Linde service history that he obtained further information from the operators, who would not necessarily have been on shift when he attended. There was no system for Nestlé supervisors to record any information beyond that in the tag-out record.

10. [61]

    Mr Raad was cross-examined by counsel for Nestlé as to his method of operating, specifically with reference to the repairs undertaken on 13 August. He was asked about conversations he may have had with the supervisors at Nestlé. Many of the questions were imprecise and the answers non-committal. For example, he was asked: [23]

11. [62]

    That line of questioning continued:

12. [63]

    The conversation that Mr Lloyd stated he had had, setting out the detail of Mr Connell’s complaint, was put to Mr Raad, but he did not remember Mr Lloyd saying those words to him. He was asked three times and said it was “possible”, but he did not remember it. The final answer was as follows: [24]

13. [64]

    In cross-examination by counsel for the plaintiff, Mr Raad was asked: [25]

14. [65]

    Mr Raad then agreed that he would have run the truck doctor on it but that as the truck doctor had no code for a machine going over the programmed speed, he would need to refer the matter back to head office. He agreed that he would drive it and then go to head office. [26] The cross-examination continued: [27]

15. [66]

    Other evidence explained that “turtle mode” was about 2.5km/h and it was a default setting if there were a problem with the vehicle. It did not go into turtle mode abruptly, but gradually. It is clear that, from the information supplied to Mr Raad when testing the vehicle on 13 August 2012, he did not understand the problem which had been experienced by Mr Connell. It is most unlikely that, had Mr Lloyd told him of such an unusual event, he would not have made a note of it. Accordingly the available inference was that no one at Nestlé told him exactly what the problem was.

16. [67]

    It will be necessary shortly to return to the question of what Mr Raad was told which was the subject of the first ground of appeal.

17. [68]

    The other available inference from the evidence, including that of Mr Raad, was that at least some aberrant behaviour on the part of the vehicle would not be capable of diagnosis by the truck doctor. If in fact the vehicles reached a speed above the programmed maximum, it appears that the truck doctor would not have been able to diagnose that fault. Both Nestlé and Linde relied upon the proposition that the cause of the vehicle behaving as described by both Mr Connell and the plaintiff had not been identified. Accordingly, there was no basis to find that either of them, let alone both, liable in negligence to the plaintiff.

Grounds of appeal

1. [69]

   It is convenient to deal with the reasoning of the trial judge by reference to the specific grounds of the appeal.

2. [70]

   Section 5B of the Civil Liability Act 2002 (NSW) identifies, in negative terms, when a person may be found negligent (that is in breach of a duty of care) in failing to take precautions against a risk of harm. Section 5B(1) identifies two aspects of a risk of harm that must be satisfied, namely that it is a risk of which the defendant knew or ought to have known, and that the risk was not insignificant. Secondly, s 5B(1) describes the precautions as those which a reasonable person in the position of the defendant would have taken. Section 5B(2) identifies factors relevant to considering whether a reasonable person would have taken such precautions. The section thus provides a structure for the analysis of breach of duty by requiring the identification of, first, the relevant risk of harm and, secondly, relevant precautions. The reasons of the trial judge conformed to this structure.

3. [71]

   The trial judge identified the risk of harm as being “the risk of a forklift operator being dislodged from the forklift while the forklift is still in motion”: at [211]. The judge continued:

4. [72]

   The appellant, in ground 4, challenged the identification of the risk of harm and the finding that the risk was foreseeable.

5. [73]

   Secondly, the judge identified the precautions which a reasonable person would or might have taken in the circumstances. Having noted, at [217], that the plaintiff had proposed three precautions, the judge concluded as follows:

6. [74]

   Ground 3 in the notice of appeal challenged the finding as to fitting a seatbelt or other means of restraint, being the third precaution noted by the trial judge.

7. [75]

   With respect to the second precaution, namely providing a system for adequate communication between the operator of the forklift and the repair technician, ground 2 in the notice of appeal challenged the finding that Nestlé’s system for communicating was inadequate and, in ground 1, challenged the finding that Mr Lloyd had not passed on to Mr Raad the detail of Mr Connell’s description of the behaviour of the forklift on 10 August 2012.

8. [76]

   As will be explained below, there was some doubt as to whether the judge specifically found that the first precaution, namely regularly and adequately maintaining and replacing the forklifts, was a separate and independent basis for a finding of breach of duty on the part of Nestlé. The issue fell away because the judge was not satisfied that it was causative of the harm suffered. [28]

9. [77]

   Section 5D of the Civil Liability Act states that the plaintiff’s entitlement to recover damages depends upon the breach of duty causing the particular harm suffered. The plaintiff must prove the probability of any fact relevant to the issue of causation (s 5E), namely to establish that the negligence “was a necessary condition of the occurrence of the harm”: s 5D(1)(a). That requires consideration of the counterfactual, based upon the taking of the reasonable precautions, absence of which constituted the breach of duty.

10. [78]

    The trial judge dealt with causation in two passages. In the first, the judge concluded that had Mr Raad been informed of what Mr Connell had described, Mr Raad would have recommended that the forklift remain out of operation until the problem was replicated and remedied; had Nestlé taken this reasonable precaution, the harm would not have eventuated: at [241]. Secondly, the judge concluded that had the forklift been fitted with a seatbelt, the plaintiff would probably not have been ejected: at [244]. Ground 5 in the notice of appeal challenged the first finding as to causation. The appellant’s written submissions took issue also with the second finding. The appeal proceeded on the basis that both findings were in play.

11. [79]

    Those matters disposed of the issues raised with respect to the liability of Nestlé. A further ground of appeal related to the failure of the judge to find that, if Nestlé were liable, Linde was partly responsible for the harm suffered by the plaintiff: ground 6. This matter will be dealt with separately in considering the liability of Linde.

Ground 4 – risk of harm

1. [80]

   Leeming JA observed in Menz v Wagga Wagga Show Society Inc [29] that the Civil Liability Act has focused attention in addressing negligence claims on the formulation of the risk of harm which the defendant ought to have foreseen. As Leeming JA further observed, a risk of harm which has materialised may be identified at differing levels of specificity or generality. [30] Although the possibilities may be presented in a binary fashion, the judge, who must be guided by principle, will usually have a range of choice. The particular articulation chosen will be guided by the underlying purpose of the statutory provisions being applied. Thus, s 5F of the Act defines “obvious risk” for the purpose of removing liability in negligence for failure to warn of an obvious risk. Section 5L provides that a defendant is not liable in negligence to a person engaged in a dangerous recreational activity where the harm is the materialisation of an obvious risk. Where there is a constraint on liability, the injured person is likely to contend for a narrow definition of the exclusion, whilst a defendant seeks a higher level of generality. In other circumstances, the positions may be reversed.

2. [81]

   In the present case, Nestlé contended for a more specific formulation, which would be less likely to be foreseeable. The plaintiff contended for a higher degree of generality, because, while submitting that the risk however defined was foreseeable, a higher level of generality was appropriate for the purpose of identifying what might have been reasonable precautions to be taken by Nestlé. As further explained in Menz, [31] “[w]hat is to be avoided is an unduly narrow formulation of risk of harm which then distorts the reasoning, because, for example, it obscures the true source of potential injury … or because it too narrowly focusses on the particular hazard which caused the injury …, or because it fails to capture part of the plaintiff’s case ….” Importantly, although it is necessary to take into account the particular harm which materialised, the risk should be articulated without the benefit of hindsight. The tests of foreseeability and the assessment of significance of the risk, together with the precautions a reasonable person in the defendant’s position would have taken, all require foresight. As s 5C requires, that may involve assessing the burden of taking precautions to avoid similar risks of harm: s 5C(a). That assessment must also have regard to countervailing considerations. For example, installing seatbelts may require weighing the benefit of restraining the driver in the vehicle as against allowing the driver of a tipping vehicle to jump clear.

3. [82]

   As appears from the following passage, the trial judge first identified the risk, then noted the particular aspects of the vehicle which rendered the risk foreseeable, and concluded that the risk could not be regarded as insignificant. The judge then proceeded to address the precautions required to mitigate the risk, thus dealing with each step of the assessment required by s 5B. The relevant passage should be set out in full:

4. [83]

   Ground 4 took issue with the second sentence in [211]. Nestlé submitted that the risk should have included identification of the mechanism of the injury in the present case, namely “that the forklift accelerated or decelerated without warning causing the operator to react by applying the brake, resulting in the operator being dislodged from the forklift while it was still in motion.”

5. [84]

   This formulation was inappropriate to the extent that it included the operator reacting “by applying the brake”. That possibility was inconsistent with the inclusion of deceleration without warning as a causal factor; further as the judge correctly appreciated, erratic acceleration and deceleration could dislodge the operator without there being time for the operator to react by applying the brake or not doing so. Otherwise, Nestlé was correct to emphasise the unexpected change of speed as part of the identification of risk. However, that was precisely what the trial judge had done in the fourth sentence of [211], stating that “[a]ny sudden or expected change in the speed of the forklift will give rise to this risk of harm.” The second and fourth sentences should be read together. The interposed sentence identified the characteristics of the forklift which gave rise to the risk of being dislodged; it could have come after the next sentence. The complaint, based on reading only part of the reasoning, cannot be sustained. Ground 4 should be rejected.

Reasonable precaution – system of communication

1. [85]

   Although Nestlé took issue with the need for the forklift to be fitted with a seatbelt or other means of restraint, it did not take issue with the finding that Nestlé was required to adopt an appropriate system of maintenance of forklifts, which it did by engaging Linde to carry out necessary maintenance and repairs. Part of that duty required communication of problems to technicians employed by Linde, which the judge found to be inadequate. Grounds 1 and 2 challenged that finding. Ground 2 challenged the finding that there was no proper system of communication in place; ground 1 challenged the finding that the erratic performance of the vehicle identified by Mr Connell had not been adequately communicated to the technician, Mr Raad. These grounds will therefore be dealt with in considering breach of duty.

Ground 3: reasonable precautions – fitting of seatbelt or other restraint

1. [86]

   The trial judge identified the issue with respect to restraints in the following terms:

2. [87]

   Nestlé took issue with aspects of this reasoning. However, the criticisms were without substance and were immaterial. For example, Nestlé complained that the formulation of the question as to which course would have been safer, at [218], misstated the test of “reasonable care”. The judge was doing no such thing: rather, the question was identified by reference to a debate between the experts. A further criticism was that “[t]he consideration given by her Honour to the cost … and other responsibilities of Nestlé was cursory and failed to have proper regard to the requirements of s 5B(2)(c).” That complaint was without substance. The judge expressly took account of cost, namely evidence that a “seatbelt kit” cost $241.86, as identified by Mr Raad, who was not questioned about that evidence. [32] The judge inferred that the cost was specific to vehicle 432 and did not involve a fleetwide order. [33] The heading under which these factors were identified referred to the burden of taking precautions, expressly addressing s 5B(2)(c). The next heading dealt with the social utility of the activity, as identified in s 5B(2)(d). In short, each paragraph of s 5B(2) was addressed in turn. The discussion was not cursory, nor did it fail to address the relevant evidence.

3. [88]

   More importantly, the criticisms are beside the point because the judge did not ultimately determine the question by reference to the views of the experts discussed in the passage set out above. Rather, the judge’s reasoning focused upon two propositions: first, “Nestlé can be taken to have been in the best position to assess the relative risk of restraining, or not restraining, its drivers of reach forklifts with seatbelts when driving in its own warehouse.” [34] Secondly, as the judgment continued: “Linde’s assessment of the risk is also significant because of its knowledge of the Nestlé warehouse and the forklifts which it had manufactured.” [35] This reasoning was ultimately dispositive and must be addressed.

4. [89]

   These two considerations led the judge to consider the precaution in the following terms:

5. [90]

   The two risk assessments referred to in these paragraphs were dealt with by the trial judge earlier in her reasons in addressing the risks posed by the forklifts and procedures for their operation. The judge had noted that Nestlé conducted assessments of such risks from time to time, including one assessment “dated 9 May 2008, which identified particular hazards, risks and controls relating to particular activities or equipment (the 2008 Risk Assessment).” [36] The judge continued:

6. [91]

   The 2008 Risk Assessment was the subject of cross-examination of Mr Neighbour, who was the distribution centre manager at Arndell Park in 2012. Mr Neighbour was first taken to a Nestlé document with the title “Safe Forklift Operation”. The document bore a “revision date” of 30 September 2011. Relevantly point four in a page of bullet points, stated that operators “[a]lways wear seatbelts (where fitted)”. The final point, in capital letters, read:

7. [92]

   He was then taken to the 2008 Risk Assessment. He agreed that the document carried the date of 9 May 2008 and had not been revised. It expressly dealt with high reach forklifts and identified in one part the hazard of not using seatbelts, as set out by the judge at [64]: see [90] above. What was not recorded in that extract were the handwritten signatures and notations which appeared in the final column against the date 13/11/12, with two signatures and between the signatures the letters “N/A”. Mr Neighbour was asked if he recognised the signatures, but was unable to do more than make an assumption. [38] The cross-examination continued: [39]

8. [93]

   There was no re-examination of Mr Neighbour and the significance of the handwritten annotations was not explored.

9. [94]

   The second risk assessment referred to was that of Linde. On 24 August 2008 Linde prepared a document which was headed “Appendix 1 – Risk Assessment – Workshop Minutes” for reach trucks including the R16 model, which included forklift 432 at Nestlé. The document identified a number of high and significant risks, including the following risk and risk reduction measures:

10. [95]

    The trial judge fairly summarised Mr Neighbour’s evidence in the following passage:

11. [96]

    The assessment made by the trial judge at [222] should be accepted. Nestlé criticised the finding on the basis that the expert evidence required further findings that (i) it was not industry practice to fit seatbelts to reach forklifts in 2003; (ii) it was not industry practice in 2012 to require that older forklifts be retrofitted with seatbelts; (iii) the evidence was silent as to whether it was possible to anchor a retrofitting in accordance with Australian Standards, and (iv) Nestlé was dependent on the manufacturer’s advice in this regard. Each of these propositions has merit, but they do not address the underlying proposition that Nestlé did not, on the evidence, inquire of Linde whether such a step was thought necessary or practicable.

12. [97]

    Senior counsel for the plaintiff received an affirmative answer from each of the four experts to the following proposition: as to “whether there was a suitable seatbelt available that could be retrofitted to this truck, may we assume, gentlemen, that Linde would be the person to judge whether it could be retrofitted[?]” Although there was an objection that the question seemed to raise an implied duty on the part of Linde to proffer proactive advice, and although a further objection was taken as to the time to which the question was directed, the question was allowed and answered affirmatively. There was indeed no pleading of a proactive duty on Linde to advise; the point was rather that, if it thought seatbelts appropriate, Nestlé was both entitled and required to defer to Linde as to whether a belt could be fitted. It was open to the judge to accept that it could, on the basis of a document prepared by Mr Raad as part of the service history for forklift 432, which included reference to the installation of a seatbelt, with a price. The available inference was that the technician who regularly serviced and repaired the vehicle believed that a seatbelt could be fitted.

13. [98]

    As to the second document relied upon by the trial judge, namely the risk assessment undertaken by Linde, Nestlé objected that there was no evidence that it had received the document prior to the accident, or that it was aware of its existence. That objection should be accepted. The document appears not to have been raised in evidence with Mr Neighbour, or Mr Lloyd, who were the principal witnesses for Nestlé. In the absence of evidence of prior notice, the document was available to support an inference that, had Nestlé sought advice from Linde, Linde would have supported the fitting of a seatbelt on the ageing forklifts. However, it could not support a finding that Nestlé was aware of the assessment, or that Nestlé should have sought such advice.

14. [99]

    In short, it was open to the trial judge to find that on the basis of the 2008 Risk Assessment, Nestlé should have sought advice from Linde as to the capacity of the ageing forklifts to be retrofitted with seatbelts, the seats replaced with a contoured cushion and the smooth seat surface eradicated. Had it done so, Linde would probably have advised that a seatbelt could be retrofitted and the seat replaced. It is true that the judge did not divide the steps to be taken in relation to seatbelts in precisely that manner, but nor was it suggested that Nestlé would itself fit an appropriate restraint. On the other hand, this reasoning is not consistent with the reasoning at [221] with respect to the use of Linde’s own risk assessment and there was no notice of contention seeking an alternative finding. However, as the finding of liability should be upheld on another basis it is not necessary to determine whether there was a material error with respect to this specific precaution.

Reasonable precaution – communications with Linde

1. [100]

   The so-called “tag-out” procedure which was applied to faulty vehicles involved the vehicle being placed in the yard with a tag attached. In some circumstances (not clearly specified in the evidence) the vehicle would be “locked out” to prevent its use. As the judge explained: [40]

2. [101]

   At a series of Nestlé staff safety meetings, commencing in April 2011 and continuing through June and July 2012, failure to complete the log book was repeatedly noted. At the April 2011 meeting it was suggested that a “tag-out register” be established, with the person responsible being Michelle Balewai, the Nestlé safety officer at the distribution centre.

3. [102]

   The tag-out entries on the printed forms in the spiral notebook uniformly indicated that a supervisor had been informed when the vehicle was locked or tagged out. If the supervisor obtained information from the operator beyond the three or four words routinely entered in the notebook, there was no procedure for recording that information. Mr Neighbour was asked as to his understanding of the process in cross-examination by senior counsel for Linde: [41]

4. [103]

   The evidence thus indicated that there was, in effect, no formal system for communicating Nestlé’s needs with respect to a defective forklift to Linde’s technician. As noted above, Linde’s service history also recorded in very few words the nature of the problem. No doubt, in many cases that would be sufficient. However, in some cases it was insufficient and the insufficiency was revealed in the present case. The resolution was more fully explained in Linde’s records, but the evidence did not reveal if they were available to Nestlé beyond what was recorded on the invoice for payment. There was no system in operation which allowed for a reporting back by the Linde technician with respect to the defects which may have been identified and rectified. The relevant particulars of negligence alleged against Nestlé were as follows: [42]

5. [104]

   As has been noted above, Mr Connell gave a detailed account to Mr Lloyd of the erratic behaviour of forklift 432 on 10 August. The explanation was not adequately encapsulated in the brief note in the tag-out book. However, Mr Lloyd did not make a note of what he had been told, nor of what he had told Mr Raad. The trial judge found, correctly, that “[w]hen Mr Lloyd made a statement to an investigator on 6 November 2012, he did not mention either that Mr Connell had spoken to him or that he had spoken to Mr Raad.” [43]

6. [105]

   The judge reasoned as to the case against Nestlé with respect to the system of communication and what occurred on 10 August 2012:

7. [106]

   Both Mr Raad’s evidence and Linde’s records, together with knowledge of what Mr Raad in fact did, support the judge’s conclusion that Mr Raad was not given a full or adequate account of the problem identified by Mr Connell. The result was that the defect was not identified and was not rectified.

8. [107]

   Conscious of the fact that ground 1 challenged a finding as to the credibility of evidence given by two witnesses who had been cross-examined at trial, Nestlé submitted that the judge’s conclusion was “wrong and contrary to incontrovertible facts, accepted testimony and compelling inferences”, adopting the language of Fox v Percy. [44] However, no incontrovertible facts were identified, and the question of compelling inferences was a matter for assessment by the trial judge, although none of the inferences she drew appear on their face to be other than persuasive in favour of the conclusion reached.

9. [108]

   The term “accepted testimony” was a reference to the acceptance by the judge of Mr Raad’s and Mr Lloyd’s accounts as to their “usual practice”, in circumstances where they could not recall detail. Thus reliance was placed upon a statement by Mr Lloyd prepared in December 2018, some six years after the incident, in which he described his practice in the following terms:

10. [109]

    The appellant submitted that to describe this as Mr Lloyd’s “usual practice” was “to understate Mr Lloyd’s uncontradicted evidence which was that it was his ‘invariable’ practice.” [45] Contrary to the appellant’s submissions, the judge’s finding revealed that she did not accept that this was his “invariable practice”.

11. [110]

    Nor was this evidence unchallenged. The cross-examination, which appears to have been shared between counsel for the plaintiff and counsel for Linde, involved three steps. First, the cross-examiner obtained acceptance from Mr Lloyd that what he had been told by Mr Connell as to the operation of the vehicle was unusual, had the potential to cause serious injury and, as a consequence, described a problem about which he wished to know its precise nature and cause. Accepting the first two propositions, Mr Lloyd did not in terms accept the third. The cross-examination continued: [46]

12. [111]

    The second stage in the cross-examination took Mr Lloyd to the interview with the investigator prepared in November 2012, some three months after the accident. Mr Lloyd accepted that Mr Metri’s description of the forklift’s behaviour was “very similar to that description which had been given to you by Mr Connell”. [47] The importance of the investigation was also accepted. Mr Lloyd was then asked: [48]

13. [112]

    The third stage of the cross-examination was to challenge the circumstances in which the evidentiary statement of 7 December 2018 was prepared. The cross-examination concluded by returning to the absence of earlier detail concerning the conversation with Mr Raad in the following passage: [49]

14. [113]

    The last question was not answered, but as the judge pointed out it had already been answered and the email spoke for itself: there was no mention.

15. [114]

    Contrary to Nestlé’s submissions in this Court, Mr Lloyd was challenged in some detail as to his account of his contact with Mr Raad. On the other side of the record, Nestlé relied upon the evidence of Mr Raad which, it was submitted, conceded that he had a conversation with Mr Lloyd about the forklift 432 on 13 August 2012. That conversation has been set out above. Reading the transcript, it could be inferred that Mr Raad made no admission at all but rather, when describing something as “possible”, was intending to indicate a negative.

16. [115]

    While conceding to the trial judge the significant benefit of having heard the oral testimony, a fair reading of the transcript is supportive of the finding the judge made. Acknowledging the benefit of the trial judge in reaching such findings on contested evidence, the challenge in ground 1 is untenable and must be rejected.

17. [116]

    Ground 2 had two limbs. The first was described as an “implicit assumption” that Nestlé was responsible for devising the system of communicating with the Linde technician. That assumption was said to be “unlikely.” [50]

18. [117]

    That proposition appears to have depended in part upon Mr Gorman’s evidence (for Linde) that “the customer would rarely be in a position to provide any assistance to the technician”. [51] However, Mr Gorman’s evidence was somewhat more nuanced. Shortly before the answer relied upon, the following exchange took place: [52]

19. [118]

    It may have been true that Linde should have ensured that its technicians were given sufficient information, but that did not exonerate Nestlé from its share of responsibility for establishing an adequate system of communication.

20. [119]

    The second proposition relied upon by Nestlé was that there was “no evidence of a systemic failure in the system of communication”, [53] meaning that there was “no criticism of the system generally.” Nestlé understood that the criticism “was limited to the alleged failure of communication on 13 August 2012.”

21. [120]

    While that was not entirely true (Mr Connell complained of an earlier problem with vehicle 432), the events of 10 August demonstrated that, on the plaintiff’s case, communications were dealt with informally, no records were kept and there was no system for reporting back. Mr Gorman’s evidence, quoted above, was consistent with the inference that, had Mr Raad been given accurate information as to the nature of the problem which confronted Mr Connell, a different result might have been achieved. That would certainly have been probable had Nestlé’s officers recorded the nature of the problem in sufficient detail and had Mr Raad’s report back been recorded. If Mr Raad had failed to find a defect which explained the behaviour of the vehicle, then acting responsibly, Nestlé would not have removed the tag. However, that part of the analysis goes to causation which will be dealt with below. Once ground 1 is rejected, the circumstances demonstrated the inadequacy of the system and ground 2 must also be rejected.

22. [121]

    The key findings may best be identified in two passages when discussing what happened on 10 August 2012 under the heading “Causation”. The judge stated:

Ground 5 – causation

1. [122]

   Immediately following the passages last set out above, the judge identified the consequences of failing to take the reasonable precaution of telling Linde what Mr Connell had experienced. Her conclusion was in the following terms:

2. [123]

   The judge also made findings with respect to causation on the basis that there had been a failure to provide sufficient restraint for the operator. The judge’s finding in that regard was set out in the following terms:

3. [124]

   Nestlé’s case on appeal with respect to causation turned in large part on two propositions. The first was that the judge misunderstood Mr Raad’s evidence as to what would have happened had he been advised of the problem encountered by Mr Connell. However, when cross-examined by senior counsel for the plaintiff, and having agreed that he had no experience of a machine going faster than the operators had been used to, Mr Raad agreed with the following question: [54]

4. [125]

   Mr Raad confirmed that his understanding of the problem was that “speed playing up” meant that the machine was going into “turtle mode”, that is slowing down. That of course was not the problem.

5. [126]

   Although Nestlé submitted that this evidence did not support the conclusion as to what would have happened had Mr Raad been given the full detail of Mr Connell’s account, there is no reason to doubt the judge’s conclusion, on the balance of probabilities, that the failure to find a fault or replicate the problem would have been reported to Nestlé, had the true nature of the problem been known.

6. [127]

   The second basis on which the appellant took issue with the judge’s finding as to causation was related to the first. As Nestlé noted, the primary judge had rejected a submission that the failure of the plaintiff to explain what caused the aberrant behaviour of forklift 432 was fatal to his case in negligence. In support of that conclusion the trial judge had relied upon a passage from the reasons of Mason P in Bendix Mintex Pty Ltd v Barnes: [55]

7. [128]

   The reliance on Bendix Mintex may have been unfortunate: it was concerned with circumstances where a plaintiff suffering from mesothelioma had been exposed to asbestos during two periods of employment but, in accordance with medical evidence, only one of the two gave rise to the inhalation of the asbestos fibre which caused the disease. Those circumstances have been dealt with in a number of judgments, both before and after Bendix Mintex; they do not helpfully inform the analysis in the present case.

8. [129]

   There is in this case no doubt that the injury was caused by the erratic behaviour of the vehicle owned by Nestlé and operated by the plaintiff in the course of his employment with Nestlé. If there had been no prior indication as to such a defect, as might have been the case had Mr Connell not experienced a similar problem on 10 August, it may have been difficult to establish negligence on the part of Nestlé. However, the defect had been identified a matter of days before the plaintiff was injured in similar circumstances, driving the same vehicle. The breach of duty on the part of Nestlé was not a failure to identify the cause of the erratic behaviour, but the failure to remove the vehicle from service until the cause had been identified and rectified. As the trial judge concluded, the failure to identify the cause was not fatal to the plaintiff’s claim, because, in fact, it formed no part of the plaintiff’s claim.

9. [130]

   Ground 5 should be rejected. It follows that the appeal from the judgment in favour of the plaintiff must be dismissed.

(a) the claims against Linde

1. [131]

   The plaintiff joined Linde as a second defendant to his claim. The particulars of negligence included:

2. [132]

   On 10 March 2021 Nestlé filed a second further amended statement of cross-claim, naming Linde as the cross-defendant. It repeated relevant allegations made by the plaintiff against Linde. Further, it relied on the maintenance agreement and pleaded that it was an implied term of the agreement that Linde would provide necessary advice as to the need for the fitting or installation of safety equipment including seatbelts and a guard rail to the driver’s cabin of the subject forklift. In particular, the cross-claim alleged:

(b) trial judge’s reasoning

1. [133]

   The trial judge dealt separately with the liability of Linde to the plaintiff and liability to Nestlé on the cross-claim. With respect to liability to the plaintiff, the judge’s critical reasoning was contained in the following passage:

2. [134]

   The judge held, on that basis, that the plaintiff had not discharged his onus of proof that Linde breached its duty of care: at [286]. The judge appears to have treated the plaintiff’s pleading as not alleging a failure of the communication system for which Linde was partly responsible, and hence did not consider what Mr Raad ought to have known, rather than simply what he knew.

3. [135]

   Although the plaintiff filed a notice of cross-appeal he did so only on the basis that Nestlé might succeed in overturning the finding of liability to the plaintiff against it, which has not occurred. Accordingly, it is not necessary to consider further the direct liability of Linde to Mr Metri.

4. [136]

   With respect to the cross-claim by Nestlé, the judge identified the bases of the claim in the following terms:

5. [137]

   The judge accepted that there was an implied term in the maintenance contract that Linde would exercise reasonable skill, care and diligence when carrying out the maintenance, service and repair of Nestlé’s forklifts: at [292]. Further, the judgment noted that Nestlé accepted for the purposes of the cross-claim “that the fault which caused the plaintiff’s accident was present when forklift 432 was serviced by Mr Raad on 13 August 2012.” The judge accepted that this was so and also that Linde failed to remedy the defect that was present on 10 and 13 August and which caused the plaintiff’s accident on 16 August 2012: at [293]. Nevertheless, on the basis of the finding that Linde’s knowledge was that of Mr Raad, for the same reason that the plaintiff’s claim failed, Nestlé’s cross-claim on the basis of negligent repair failed. Mr Raad was not informed of the relevant factors which should have led to further steps being taken on 13 August.

6. [138]

   The trial judge dealt with the claim of failure to advise on a different basis, namely that causation was not established. That was explained in the following paragraph:

(c) Nestlé’s case on appeal

1. [139]

   Nestlé challenged the finding of no negligence on the basis that it was entirely dependent upon Linde to diagnose and rectify any fault with the vehicle. That was true; however, Linde’s duty was to exercise reasonable care in carrying out its functions of diagnosis and repair. The fact that the experts were unable to diagnose the fault was evidence that, exercising reasonable care and on the basis of the information available to it, Linde was not negligent nor in breach of its contractual obligations in failing to carrying out the repairs. It was not a guarantor of the safety of the vehicle. Nestlé was on sounder ground in submitting that, to the extent that Mr Raad required additional information in the form of a more complete description of the problem, it was up to Linde to give direction to Nestlé. [56]

2. [140]

   Putting to one side the question of seatbelts or other forms of restraint, the substance of the claim upheld against Nestlé was that it failed to institute an adequate system for reporting defects to Linde. On one view, neither the plaintiff’s pleading against Linde, nor Nestlé’s pleading by way of cross-claim, identified that as a failing of Linde. The plaintiff’s particulars of negligence in that regard were found in cl 28 of the statement of claim (set out above), a clause which was not adopted and repleaded in Nestlé’s cross-claim.

3. [141]

   The written submissions for the appellant went no further than the passage set out above. In its written submissions in response, Linde maintained that there was no negligence in failing to diagnose and repair the defect and that Linde “was only given limited information [from] which it could carry out a diagnosis and repair.” [57]

4. [142]

   In the course of oral argument, senior counsel for Nestlé did not directly suggest that if it were liable for failing to establish a reasonable system of communication with the repairer, the repairer bore some responsibility for that failing. Rather, in response to a question relating to the duty to make sure that the technician was in possession of all available information, counsel submitted that unless “there was some history that the information given to the technician was inadequate or some reason to suspect it was inadequate”, because the system had worked “for years and years”, there was no breach. [58] Counsel further submitted: [59]

5. [143]

   In short, although Nestlé had fought vigorously, in support of grounds 1 and 2, that all relevant information was supplied and that the system of communication was, contrary to the judge’s finding, adequate, there was no clear attempt to rely upon a faulty system of communication in seeking to establish that at least part of the responsibility for such a system lay with Linde.

6. [144]

   Shortly before lunch on day 2, in the course of submissions by senior counsel for Linde, the following question was posed: [60]

7. [145]

   It should be noted that the experts were not responding to a question which directly asked about problems in the communication of information from the operator to Linde: rather, question 13(a) was as follows:

8. [146]

   The response of senior counsel for Linde was, in substance, in two parts. His first response was that the system for conveying information was, and had proved over many years, to be entirely adequate for the kinds of breakdown and defects usually encountered. Secondly, in the circumstances which arose on 10 August 2012 the problem was novel and extraordinary. However, the only people who knew that were the employees of Nestlé, namely Mr Connell and Mr Lloyd. As senior counsel put it, “[t]he fault is in the inadequate provision of information and that stops with Nestlé in this case.” [61] After further discussion, including difficulties in knowing precisely to whom in Nestlé and in what terms, Mr Connell’s account was conveyed before someone in the Nestlé office typed the words “speed playing up” in the call to Linde, counsel stated: [62]

9. [147]

   The adequacy of this response is to be assessed against the failure of the cross-claim to plead precisely Linde’s responsibility for establishing a system of communication in respect of faults in the forklifts, together with the absence of a ground of appeal which fairly identified that issue and an absence of any clear submission, either written or oral, on the part of Nestlé articulating the point. Linde’s response to the question raised (and pursued in different formulations by members of the Court) was adequate in those circumstances. It may be observed that if it had not been adequate to deflect that aspect of the claim, it would certainly have resulted in an apportionment of a large part of the responsibility to Nestlé.

10. [148]

    There remains the question of the duty of Linde to advise Nestlé to fit seatbelts or other forms of restraint on their reach forklifts. Although the trial judge dealt with the question as one of causation, not being persuaded that Nestlé would have taken such advice had it been proffered, Linde defended its position on the further ground that it had no duty to advise Nestlé in relation to additional safety precautions with respect to forklifts which Nestlé owned. Further, to the extent that a new model of Linde forklifts was fitted with seatbelts, that did not impose an obligation on Linde to advise the owners of previous models which remained in operation of the need to consider upgrading the safety of those models. Finally, if Linde’s duty of care as manufacturer did not require it to take that step, there was nothing in its maintenance agreement with Nestlé that imposed such an obligation.

11. [149]

    The reasoning of the trial judge with respect to causation turned on the evidence that Nestlé was aware that the new forklifts were fitted with seatbelts, and recognised that as a safety device, at some stage of its 2008 Risk Assessment. It had considered updating its fleet but rejected that option. It had apparently also rejected the option of retrofitting seat belts, for which Mr Raad had submitted a quote. The judge was right to conclude that had Linde given further advice as to fitting seatbelts it would not have been followed. It may be added that there was no precise formulation as to the necessary wording of such advice. In circumstances where there was no clear industry view as to the need for seatbelts or restraining devices on reach forklifts, and in circumstances where Nestlé was as aware of the possible safety issues as Linde, there was no duty on Linde to give advice in terms likely to have led to action by Nestlé.

12. [150]

    In the circumstances, the challenge to the failure of the trial judge to uphold Nestlé’s cross-claim against Linde should be rejected.

Conclusions

1. [151]

   For the reasons set out above, Nestlé’s appeal against the judgment in favour of Mr Metri must be rejected. In that circumstance, it is not necessary to address Mr Metri’s cross-appeal against Linde. Nestlé’s challenge to the dismissal of its cross-claim against Linde must also be dismissed.

2. [152]

   The Court should make the following orders:

   1. (1)

      Dismiss the appeal by Nestlé Australia Ltd against the judgment in the Common Law Division of 7 April 2021.

   2. (2)

      Dismiss the cross-appeal by Toufic Metri filed on 7 July 2021.

   3. (3)

      Order that Nestlé Australia Ltd pay the costs of Mr Metri and Linde Material Handling Pty Ltd in this Court.

3. [153]

   LEEMING JA: I have had the considerable advantage of reading the reasons for judgment of Basten JA. I agree with the orders he proposes, and subject to what follows (which is confined to ground 3) with his reasons. Ground 3 concerns whether Nestle breached its duty of care by failing to retrofit a seat restraint in the forklifts. As Basten JA notes, because the primary judge found Nestle liable on two other grounds, nothing turns on this, and it is not necessary to reach a concluded view. However, I am of the view that the document upon which this finding was principally based (which was relevantly reproduced by the primary judge at [64]) and is described by Basten JA at [90] and [92]) was inapplicable to the reach forklifts. Those forklifts did not have seat restraints fitted. The reference “Tool box chat reminders to wear seat belts” cannot ever have been applicable to any of the R16HDS forklifts bought by Nestle, and indeed the document which was tendered has a handwritten “N/A” against this particular hazard. This Court is in no inferior position to the primary judge in assessing what flows from the document. It seems to me to be no small thing to require a purchaser of a forklift to install seat restraints across its fleet when the manufacturer had not done so. Like many modifications to equipment, while doing so would have addressed the risk of the operator falling from the slow-moving machine if it behaved erratically and decelerated sharply, it may have introduced other hazards. Prima facie, with a familiar safety measure such as a seat restraint, it seems reasonable to assume that a reputable manufacturer will have considered carefully whether or not they should be fitted, and only in highly unusual circumstances would the law require a purchaser to reverse the manufacturer's decision. Those reservations however do not detract from the balance of the reasoning at first instance, which suffices to sustain the judgment against Nestle.

4. [154]

   BRERETON JA: I agree with Basten JA.