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Can a seemingly innocuous hazard that is obvious to all workers create a foreseeable workplace risk of injury for which the site operator or the worker’s employer is responsible?
Wayne Smith had worked for D.M.E. Engineering for many years. From 2013 he was deployed in an inspection and supervisory role at Visy’s Tumut paper mill on the north-west foothills of the Snowy Mountains in NSW. DME provided mechanical and process-piping maintenance at the site.
In August 2019, during a planned maintenance shutdown, Mr Smith went to an area of the mill to check the work of his repair team.
The room had a single entry and exit. To reach the team, Smith – then aged 49 yrs – had to move along a narrow route beside a blue motor. On the way in he could avoid a protruding metal elbow – at head height – by leaning over the motor.
On the return journey he took a path he had not used before. Wearing the mandatory hard hat, watching for wires and other trip hazards on the floor and preparing to turn around the motor, he did not see the elbow immediately ahead of him. His head struck it and his neck recoiled backwards.
The impact caused a severe neck condition, radiculopathy down both arms and an adjustment disorder. After surgery in February 2020, he did not return to any form of work.
It later emerged that the rigid pipe had been installed in May 2017 in place of a flexible plastic pipe which did not intrude into the space to the same extent. Neither Visy nor DME had performed a risk assessment.
Smith sued both DME and Visy for the consequences of his injuries.
Justice Sarah McNaughton found that DME could and should have identified the hazard and arranged for the pipe to be relocated to at least 2m, consistent with the relevant standard. Those were straightforward measures, within DME’s capacity to initiate, and would have avoided Mr Smith’s neck injury and consequential psychiatric injuries.
Visy argued against its culpability on the basis that it had entrusted maintenance to a competent contractor namely DME and that Smith should have kept a better lookout.
The court rejected the proposition that Visy had delegated away al responsibility. The evidence established that Visy controlled the mill’s work-order process, vetting and prioritising jobs and retained overall control of the plant’s infrastructure and safety arrangements. Its personnel accepted that Visy had ultimate responsibility for the safety of people working at the mill.
Visy thus also owed Smith a duty of care and had breached it. A reasonable occupier in Visy’s position would have taken precautions. The court also found the pipe not to be an obvious risk of injury for the purposes of the Civil Liability Act, given Smith’s height, his hard hat, his unfamiliar approach to the obstruction and the trip hazards requiring him to look down.
Visy contended that Smith must bear some contributory responsibility in the order of 70%. The court described his contribution to the accident as as a momentary lapse when set against the defendants’ overall conduct and assessed contributory negligence at a much lower figure. As between Visy and DME, liability was apportioned equally: DME had installed the pipe and owed its employee a non-delegable duty, while Visy exercised systematic control of the site and retained responsibility for the visible infrastructure and workplace safety.
Justice McNaughton accepted Smith could not return to any form of work. He decided non-economic loss at 45 per cent of a most extreme case. She also made findings on care, treatment and economic loss, including $563,000 for past economic loss inclusive of superannuation and $830,000 for future loss of earning capacity. The final sum – to be calculated having regard to the different statutory damages regimes applying to Visy and DME and the contribution between the two wrongdoers – will be subject to the the contributory negligence deduction that was decided at 20%.
Smith v Visy Pulp and Paper Pty Ltd [2026] NSWSC 685 McNaughton J, 23 June 2026
Categories: Factory accident