Nestle Australia Ltd v Healey

[2026] VSCA 171

Victorian Court of Appeal

Built by Barristers,
For Australian Law.

1. Tort
2. › Breach of statutory duty
3. › Hazardous substances — OHS Regulations 2017 regs 158 and 163
1. Tort
2. › Breach of statutory duty
3. › Causation — whether breach was a cause of injury — verdict open to jury
1. Practice and procedure
2. › Appeals
3. › New argument on appeal — not a pure question of law — could have been met by evidence
1. Practice and procedure
2. › Jury trial
3. › Appellate review of jury verdict — threshold for setting aside — verdict not open

A party seeking to overturn a jury verdict must show an exceptionally strong case that the verdict was not open; the appellate court must approach the evidence on the basis most favourable to the respondent and will not set aside a verdict merely because it would have reached a different conclusion.
A new argument cannot be raised for the first time on appeal where it could have been met by evidence at trial, and where there was a shared understanding at trial on the relevant factual premise — here, that the chemicals were hazardous substances under the OHS Regulations — it is not in the interests of justice to permit the new argument.
Breach of regs 158 and 163 of the Occupational Health and Safety Regulations 2017 (Vic) gives rise to a private right of action for damages, and the jury was entitled on the evidence to find that breach of those regulations was a cause of the plaintiff's reactive airways dysfunction syndrome.