Woolworths Limited v Strong & Anor [2010] NSWCA 282

Issue:

Whether the test of causation in Shoeys Pty Ltd v Allan [1991] Aust Torts Reports 81-104 applied to the application of NSW CL Act s.5E (direct analogue of QLD CL Act 12).

Campbell JA with whom Handley AJA and Harrison J concurred:

[1] CAMPBELL JA: The sole dispute in this appeal concerns whether the plaintiff in a slip and fall case has established causation of damage.

[2] At the time relevant to this appeal, one level of the Centro Taree Shopping Centre contained two large retail shops that were separated by a common area, part of which operated as a food court. There were also various smaller specialty shops. One of the large retail shops was a Woolworths shop. The other, which was leased to the Appellant, is a Big W shop. On 24 September 2004 at around 12:30pm the First Respondent was at the shopping centre with her friend, Robyn Hurst, and her daughter, Teisha Ford.

[3] The Appellant had an exclusive right under its lease of the Big W shop to conduct “sidewalk sales” within an area that was roughly square and extended 11 metres into the common area towards the food court from the frontage of the leased premises. The lease provided that:

“… After conducting a sidewalk sale the Tenant must restore the Common Areas to a clean and proper condition having regard to its condition before the sidewalk sale.”

[4] On the day in question there were two large plant stands with three or four racks on each of the stands in the common area outside the Big W store. There were pot plants on those racks. The stands themselves were about shoulder height. They were placed so as to create a corridor directly outside the Big W store, and leading directly to that store. The stands had been in that location from around 8am that day.

[5] The First Respondent had undergone an amputation above the right knee decades before the accident now in question occurred. By using crutches, she had been able to achieve a high degree of mobility. On the day in question, she and her two companions were going towards the Big W store. They passed between the two plant stands. The corridor created by the plant stands was wide enough for the three women to walk alongside each other. Ms Ford was on the First Respondent’s left. Ms Hurst was on the First Respondent’s right, and just a little bit in front of her.

[19] With the evidence in this state, Mr Maconachie QC, senior counsel for the Appellant, accepted that the Appellant had no operative system at all, on the day in question, for taking precautions to avoid the risk of people slipping and falling in the sidewalk sales area. He accepted that the evidence of the cleaning system that was employed outside the sidewalk sales area was available to the judge to determine what was a reasonable system to apply in the sidewalk sales area. The appeal proceeded on that basis.

[6] The First Respondent was someone who was actively involved in keeping pot plants. She was interested in the pot plants she saw on the stand. She said, “I went to look at the plant stand on my right and just after I’d gone in that’s when I had my fall.” The tip of her right crutch slipped from under her, and she fell heavily. The judge accepted that there was a chip on the floor, that some grease had come from it, and that the First Respondent slipped when the end of her crutch came in contact with either the chip or the grease. It is clear enough that the type of “chip” involved was a french fry, rather than a potato crisp or a small detached piece of flooring. The spot where the First Respondent fell was approximately 4 metres from the entrance to the Big W store.

[42] In my view, the evidence justifies the conclusion that the First Respondent, while keeping a careful lookout for potential hazards, had her attention also partly engaged by the pot plants.

[43] For these reasons I do not accept that the fact that the First Respondent was paying careful attention to where she walked in itself shows that her fall was not a consequence of the failure of the Appellant to take reasonable care that people entering the sidewalk sales area did not sustain personal injury.

[51] These aspects of section 5D are illustrated by the way section 5D was applied in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at [53]. French CJ, Gummow, Hayne, Heydon and Crennan JJ identified the reason why causation of damage was not established as being because “[i]t was not shown to be more probable than not that, but for the absence of security personnel (whether at the door or even on the floor of the restaurant), the shootings would not have taken place”. In that case, it was the absence of security personnel that was contended to be the specific breach of a duty of care that had occurred, and being shot was the particular harm that the plaintiffs had suffered. In the present case, the critical question for deciding whether section 5D(1)(a) is satisfied is whether it is established that the First Respondent would not have slipped if the Appellant had been exercising care to the minimum extent at which it would have been performing its duty to take reasonable care.

[52] The reasons of the judge set out at para [26] above do not engage in a process of deciding what it was that the Appellant failed to do that the taking of reasonable care required it to do, and then whether that failure to take reasonable care was a necessary condition of the occurrence of the particular harm that the First Respondent sustained. Thus, the judge has not decided the case in the way the statute requires. To say that the “second defendant ought to have seen something on the ground in the nature of what has been described by the plaintiff and others” does not consider either of those matters. That the chip was able to be seen after the accident says nothing about whether the presence of one or more Woolworths employees in the area, whose task was not a dedicated one of looking for and removing potential slipping material was adequate for the taking of reasonable care. To say “it should have been removed” is to express a conclusion, but not one arrived at by the type of reasoning the statute requires. When the judge has not addressed the questions the statute requires to be addressed, his conclusion cannot stand. This Court must examine the question of causation of damage for itself.

[55] Shoeys Pty Ltd v Allan (1991) Aust Torts Reports ¶81-104 bore some factual similarities to the present case, in that a storekeeper was held liable when a customer slipped in the fruit and vegetable section of the shop on some dropped vegetable matter, in circumstances where the shop had no real system for locating and removing spillages. Mr Maconachie contended that the type of reasoning by which this Court upheld the finding of liability in Shoeys could not now be justified, because of section 5E.

[62] I see nothing in section 5E that prevents such a method of reasoning from continuing to be adopted. However, the inferences that are open in the present case are dependent upon the facts that have been established in the present case. In my view, the fact that the item slipped on was a chip (a type of food some people eat for lunch), and that the fall occurred quite close to a food court and at lunchtime, distinguish the present case from Shoeys.

[63] In circumstances where the Appellant had no relevant cleaning system at all, it is easy to conclude that it breached its duty of care to the First Respondent. However, it is not possible to decide whether the breach of duty was a necessary condition of the particular harm without giving consideration to what the minimum content of the obligation to take reasonable care to prevent patrons from slipping would have been.

[66] The present is not, however, a case in which proof of breach of duty in itself makes likely that, had the duty been performed, the damage would not have been caused. That is because there is no evidence that would justify a conclusion that taking reasonable care, in the present case, required the continuous presence of someone always on the lookout for potential slippery substances. Periodical inspections and cleanings were all that reasonable care required. That gives rise to the possibility that, even if periodical inspections and cleaning had been carried out, with the minimum frequency required for the Appellant to be taking reasonable care, the chip fell between the last such inspection and the time the First Respondent encountered it. The present is not a case in which one can infer that if the steps involved in taking reasonable care had been taken, the plaintiff’s harm was more likely than not to have not arisen. In this case, the particular hazard that the First Respondent encountered was not one with an approximately equal likelihood of occurrence throughout the day. She slipped on a chip near a food court at lunch time, and the reasonableness of a cleaning system depends on the range of items it is foreseeable might be dropped rather than just on the particular hazard a particular plaintiff encountered. Because of those aspects of the facts, I am not prepared to draw that inference.

[67] In my view, there is no basis for concluding, in the present case, that the chip had been on the ground for long enough for it to be detected and removed by the operation of a reasonable cleaning system. There was no evidence of there being anything about the physical appearance of the chip, such as it being dirty, that might provide the ground for an inference that it had been there for some time. There was no basis for any conclusion that the area was less busy in the time immediately before the accident than it usually was (indeed, one would ordinarily expect an area in which people sold prepared food, including take-away food, to be busier around lunch time than at many other times of the day). There was no basis for concluding that the chip could have been dropped at any time of the day, or at least for concluding that it was more likely than not that it was not dropped comparatively soon before the First Respondent slipped. There was no basis for inferring whether the “grease stain” was something that had spontaneously oozed from the chip as it lay on the ground, or had fallen with it (in either case existing and being visible before the fall), rather than that it had been squeezed out of the chip as the crutch compressed and moved it. Ms Hurst gave evidence in cross-examination:

“Q. I don’t suppose you touched the chip to see if it was still warm did you?
A. No I didn’t.”

[68] There was no evidence concerning the temperature of the chip from any other witness. The fact that the cleaning contractor engaged a second cleaner, with special duties that included (but were not confined to) attending to the food court area from 11:00am to 2:00pm provides some basis for believing that there was an increased risk of things being dropped in that area during the time period. The site of the accident was very close to the food court. The time the accident occurred, at 12:30pm, fits comfortably within the range of time at which people ordinarily eat lunch. Given that it was the tip of the First Respondent’s crutch that encountered the chip, and that Ms Hurst was walking to the First Respondent’s right in the corridor between the pot plant stand, one can conclude that the chip was not lying at the very edge of the corridor. However, that fact does not assist in concluding how long it was likely to have been there.

[69] There was no evidence on the basis of which a judge could conclude that the taking of reasonable care to prevent physical injury to people within the sidewalk sales area involved any higher degree of diligence or vigilance than was applied immediately outside the perimeter of the sidewalk sales area. Even if one took the possibility most favourable to the First Respondent, namely that that system required periodical cleaning every 15 minutes (as the contract called for) rather than every 20 minutes (as Ms Walker in fact carried out her duties) it cannot be concluded that it was more likely than not that if there had been dedicated cleaning of the area every 15 minutes, supplemented by employees who happened to see a danger either removing it themselves, or calling a cleaner, it is more likely than not that the First Respondent would not have fallen.

[70] In the present case, if one were to ask whether the First Respondent would not have been injured if the Appellant had in place a reasonable system for detecting and removing potentially slippery substances, one can answer “maybe”. In my view the evidence does not enable the answer “more likely than not” to be given. In the circumstances, the First Respondent did not establish causation of damage.

Brisbane Barrister – David Cormack

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