Strong v Woolworths: High Court confirms retailer's responsibility for slipping hazard
By Gavin Creighton, Debbie Kaminskas and Vanessa Gulesserian
In brief - Shopping centre and shop owners should take care to avoid negligence claims
In a decision handed down on 7 March 2012, the High Court upheld the original decision of the District Court of NSW, that Woolworths was responsible for the injuries of a customer who slipped on a hot chip.
Customer on crutches slips on hot chip at 'sidewalk sale'
On 24 September 2004, the appellant, Ms Strong, was shopping at the Woolworths Ltd t/as Big W store at Centro Taree. Big W was conducting a 'sidewalk sale' and had two large pot plant stands outside the store, creating an entry corridor to the store. It was not disputed that the area where the sidewalk sale was being conducted was the responsibility of Woolworths Limited.
Ms Strong was an amputee who used crutches to assist her in walking. As she approached the store, she went over to look at the pot plant stand. While walking over to one of the pot plants, one of her crutches allegedly slipped on a hot chip, causing her to fall and sustain injury.
Centro contracted cleaners to perform regular 15 minute inspections of the common areas of the Centre to look for spills and hazards. As Woolworths occupied the area where the sidewalk sale was being conducted, the inspection and cleaning of this area remained the responsibility of Woolworths.
Woolworths did not have a sufficient system of inspection and cleaning. This was undisputed.
District Court of NSW finds Woolworths liable in negligence
Ms Strong commenced proceedings in the District Court of NSW, claiming damages for negligence against Woolworths Ltd and CPT Manager Limited, the owner of the centre.
Robinson DCJ at first instance found Woolworths liable in negligence. Ms Strong obtained judgment against Woolworths for $580,299. The claim against CPT was dismissed.
Causation and the failure to adopt an adequate system of inspection and cleaning
Woolworths appealed to the NSW Court of Appeal. The question before the Court was whether Woolworths' failure to adopt an adequate system of inspection and cleaning caused Ms Strong's injury.
The principles governing the determination of factual causation in a claim for damages for negligence in NSW are set out in Section 5D(1) of the Civil Liability Act 2002 (NSW). Section 5D(1) provides that:
A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
Plaintiff fails to meet factual causation test
Outside of the "exceptional case" proviso in section 5D(2), factual causation must be satisfied, on the balance of probabilities, for a plaintiff to prove that his or her injuries were caused by the breach of the defendant's duty.
Specifically, Ms Strong needed to prove that it was more likely than not that Woolworths' failure to exercise reasonable care and skill was a necessary condition of the particular harm that she suffered.
The Court of Appeal was not satisfied that Ms Strong proved on the balance of probabilities that a reasonable system of inspection and cleaning would have prevented the incident. In reaching their decision, the Court of Appeal judges considered that there was no basis for concluding that the chip had been on the ground for long enough for it to be detected and removed.
The Court of Appeal considered that in the absence of evidence regarding the length of time that the chip had been on the floor (for example, the temperature of the chip), it could readily be concluded that the chip was only there for a short period of time, particularly as the incident occurred at lunchtime. Ms Strong had been unable to provide any evidence on how long the chip had been on the ground.
High Court rejects reasoning of Court of Appeal
The High Court held that whilst the onus of proof lay with Ms Strong to prove that Woolworths' breach was a necessary condition of her fall, such an onus could be discharged by consideration of the probabilities in circumstances where evidence could not prove when the event (the dropping of the chip) occurred.
The High Court criticised the basis of the Court of Appeal's decision that a system of inspection would not have prevented the incident. The Court of Appeal's logic was that as chips are commonly eaten at lunchtime and as Ms Strong's injury occurred around lunch time, it was reasonable to assume that the chip was there for a short period of time.
The High Court further criticised the Court of Appeal's reasoning that as a second cleaner had been engaged around the lunchtime period, it was more likely than not that items such as chips would be dropped during this period.
The High Court considered that a conclusion as to when the chip was dropped could not be implied through the evidence. Rather, the Court considered that it was more probable than not that the chip was dropped in the period between 8:00am and 12:10pm, rather than the period suggested by the Court of Appeal, being between 12:10pm and the time of the incident.
The High Court's decision that the chip was most probably dropped in the longer period between 8:00am and 12:10pm formed the basis for their decision that the failure of Woolworths to adopt a system of inspection and cleaning was a necessary condition that caused the appellant's harm.
Ultimately, the High Court allowed Ms Strong's appeal, setting aside the orders of the Court of Appeal.
Reasonable care requires frequent inspection and removal of slipping hazards
It is clear that the decision highlights the importance of regular systems of cleaning and inspection for shopping centres if liability for such incidents is to be avoided. As stated in the judgment, "reasonable care required inspection and removal of slipping hazards at intervals not greater than 20 minutes."
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