Agresta vs. Agresta

This case involved an appeal from the decision of his Honour Judge Sweeney in the District Court of NSW.

This case involves a woman placing her hand in a tomato mincer and as a result suffered severe injuries to her fingers and left hand and the amputation of same.

The Plaintiff was assisting her brother in-law and his wife in the annual Italian addition of making tomato sauce.

The Defendants were called away and asked the injured person to continue making the sauce. The injured person was inexperienced in these matters.

The appellant alleged that she was owed a duty of care by both the Defendant’s occupation of the premises and in permitting her to operate a machine that was potentially dangerous.

The Court of Appeal found that to allow the injured person to operate an unguarded dangerous machine, was in their opinion negligent with this emphasised by the fact that she was in fact requested to operate the machine in circumstances where the injured person had no experience in the use of the machine and the Defendants did not have any particular reason to believe she had experience.

The fact that the injured person was aware of the danger was dismissed as a reason to deny the Plaintiff relief because continuous concentration was required in the use and operation of the machine, therefore was a real risk of injury if a person suffered a lapse in concentration which was a real possibility.

The Defendants also attempted to defeat the appeal on the basis that it was an obvious risk. The Court did not accept this due to a combination of the nature of a machine and the lack of experience of the injured person and the specific factual matrix that caused her to operate the machine. The Court also suggested the fact that family members had used the machine for 15 years without anyone suffering injury was no answer to the Plaintiff’s allegations because the people who were using it were family members who had experience in the use of the machine.

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