Written by Peter CarterJuly 10, 2021
A factory worker has won substantial damages after being run over by a runaway forklift that was serviced by its OEM supplier just 6 days earlier.
Toufic Metri, – a licensed forklift operator – suffered extensive injuries after being ejected from the forklift he was driving at the Nestlé manufacturing facility in Blacktown, NSW in August 2012.
The 44-yr-old Metri was working an extra shift moving pallets of incoming stock to racks identified by the computer screen on his forklift when it suddenly “took off” to a “crazy fast” speed which he had never before seen a forklift able to get to.
As he lifted his foot from the accelerator, instead of slowing, the machine kept getting faster until it suddenly decelerated and threw him onto the factory floor before it ran over his legs.No longer able to work, Metri filed a lawsuit against Nestlé in 2015 for damages for the injuries including for economic loss and loss of future earning capacity.
He alleged Nestlé was required – pursuant to its own risk assessment recommendation – to have provided the forklift with seatbelts or other devices to prevent a factory worker injury by falling from it in case of any mishap or accident.
He also alleged the machine had been inadequately repaired after the prior and very similar mishap 6 days earlier.
With the leave of the Court in 2019, Metri added EOM Linde – the forklift manufacturer and the organisation with whom Nestlé contracted for the maintenance of its forklift fleet – as a second defendant on the ground it had negligently repaired forklift 432 after the earlier mishap.
Co-worker Jason Connell who had encountered a similar episode earlier that week had “tagged” the machine out of service for a “speed sensor issue” and reported being startled by the malfunction the sudden unexplainable increase in speed to his supervisor.
Linde was requested to investigate. An experienced service technician repaired a fault be detected in the battery locking sensor and test-drove the machine for 20 minutes to confirm all safety features, plus the steering and brakes before returning the machine to service.
Regrettably, no specific investigation of the fault reported by Connell – an “Overspeed issue – was carried out because those details had not been passed on by Nestlé to the Linde team.
The Overspeed fault did not recur until Metri made use of the machine 3 days after its return to service.
The serious injuries Metri sustained included a “degloving” injury to his left lower leg which resulted in a below-knee amputation. A spinal injury aggravation, an avulsion fracture of his left elbow, PTSD and major depression that also resulted are permanent conditions.
Both the Defendants denied the allegations of negligence.
The trial came before Justice Christine Adamson in the NSW Supreme Court who concluded that the probability of the harm of a driver being ejected from a forklift in the event of a sudden change of movement must be regarded as “relatively low”.
She then considered a risk assessment conducted in 2008 that was reviewed in 2010 and 2012 and referred to the consequences of not using seatbelts on forklifts were that the “operator may fall out of forklift in the event of an incident /collision which can result in Injury/fatality”.
On that basis, she ruled the likely seriousness of any resulting “harm” to be “very great” and the burden of taking reasonable precautions – seat belts or sidebars – “would not have been particularly expensive, difficult or impractical”.
The risk of injury was thus “material and foreseeable” and Nestlé was liable to Metri in negligence for having failed to take the requisite precautions as recommended in the risk assessment by installing seat belts or sidebars to minimise the risk to a driver.
Nestlé – by failing to adequately communicate Mr Connell’s description of the fault to the Linde service people – failed in its further duty to take reasonable care to maintain and repair equipment it provided its workers.
“The duty of care which Nestlé owed to him included a duty to obtain suitable equipment and take reasonable care to maintain and repair it”.
As against Linde, Metri simply pleaded res ipsa loquitur contending that the unresolved fault in forklift 432 was of itself evidence of the OEM’s failure to take reasonable care in conducting the repair.
That argument was rejected on the ground that information received by Linde was incomplete and lacked the specifics Connell had reported.
“The principle of res ipsa loquitur is inapposite,” ruled Judge Adamson.
Linde was not liable to Metri because it serviced forklift 432 and returned it to service without knowledge of the particular and rare Overspeed problem which – had such information been provided to it – would have been investigated further.
Nestlé also failed in its cross-claim for indemnity against Linde for similar reasons.
The damages Nestlé – the world’s No 3 food production company – must pay him is $2.93 million and will include $400k for general damages, $444k for past expenses, loss of future earning capacity of $722k and future domestic assistance of $201k. The food giant was also ordered to pay the legal costs of Metri and Linde.
Metri v Nestlé Australia Ltd  NSWSC 343, Adamson J, 7 April 2021 & 12 May 2021 Read case
Categories: Factory accident