Metri v Nestlé Australia Ltd [2021] NSWSC 343 (7 April 2021)

"...Mr Lewis pointed to the 2008 Risk Assessment, which identified the risk of the driver of a reach forklift falling out of the vehicle..."

Case: Metri v Nestlé Australia Ltd [2021] NSWSC 343 (7 April 2021)

Date of Judgement: 7 April 2021

Court (Location): Supreme Court of New South Wales

Expert (for the Plaintiff): Roger Lewis, senior mechanical engineer

Solicitors: Beilby Poulden Costello (Plaintiff); Sparke Helmore Lawyers (First Defendant / Cross-claimant); Moray & Agnew (Second Defendant / Cross-defendant)

Legal Matter: Plaintiff sustained injury as a result of a forklift accident, the most serious of which involved damage to his left lower limb which led to its amputation below the knee.

Court Decision:

(1) Judgment for the plaintiff against the first defendant.
(2) Judgment for the second defendant on the plaintiff’s claim.
(3) Judgment for the cross-defendant (second defendant) on the cross-claim.
(4) Reserve costs.
(5) Direct the parties to calculate the judgment sum in accordance with the reasons set out above and forward such calculation to my Associate within 7 days.
(6) Grant liberty to apply to restore the matter for further argument on the judgment sum, or the appropriate costs orders.

Extracts from Adamson J's comments in relation to evidence provided by expert witness engineer Roger Lewis.

Paragraph 31: John Hickey, a qualified mechanical engineer, was an independent expert retained by Nestlé to investigate the plaintiff’s accident. He was called by Nestlé to give evidence in the proceedings. Grant Johnston and Roger Lewis, who were both qualified mechanical engineers, were called by the plaintiff. Dr Tim White, who was also a qualified mechanical engineer, was called by Linde.

Paragraph 178: Mr Lewis and Dr White agreed that the only way the speed could exceed 12.5km/h would be if the LDC had an electronic problem. Dr White considered that if there was a failure in the electronic parts of the LDC which caused the maximum speed to be exceeded, he would expect those components to fail permanently if they were to fail at all. He considered an intermittent fault to be unlikely.

Paragraph 183: The experts were also asked to opine on what forces would have been required to eject an occupant from the seat of a forklift such as forklift 432. Mr Lewis relied on research conducted in 1980 on sideways facing passengers on public transport which produced the following data:

Paragraph 184: On this basis, Mr Lewis considered that, on the figures calculated by Dr White, the chance of the plaintiff being dislodged in the way he described was between 20% and 60%. Dr White was critical of the applicability of this data because he considered that it related to people who were, typically, not expecting the deceleration. He contrasted their position with that of the plaintiff, who, having pressed the brake pedal, must have been expecting the deceleration and could brace himself for it. Mr Lewis responded by saying that in the data he used, the participants were not expecting the deceleration, except in a general sense (they were participating in a test).

Paragraph 191: Mr Johnston and Mr Lewis agreed that the described defect must derive from the LDC. Otherwise, they could not say what caused the problem.

Paragraph 205: However, Mr Lewis pointed to the 2008 Risk Assessment, which identified the risk of the driver of a reach forklift falling out of the vehicle and indicated that the “new” forklifts (which were to be acquired in 2010, but were not in fact acquired) would be fitted with a preventative seatbelt device. Mr Lewis considered that this document reflected a risk analysis which had been conducted by Nestlé which specifically applied to reach forklifts and would appear to require forklift drivers to use the seatbelts which were to be fixed to forklifts.

Paragraphs 207: The experts agreed that seatbelts were not the only way to decrease the chance of a forklift driver being dislodged from the seat and opined that better seat contouring, a side guard, supplementary hip or torso bolsters or changing the material of which the seat was made would also tend to have the effect of limiting lateral movement. Mr Lewis opined that it would be possible to install a seat which would help to keep the occupant in place but also allow free entry and exit. He instanced a hip guard which formed part of the contouring of the seat.

Full court report can be accessed via the Australasian Legal Institute - Metri v Nestlé Australia Ltd [2021] NSWSC 343 (7 April 2021).

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