In brief - Court of Appeal overturns award of damages

On 15 August 2013 the NSW Court of Appeal overturned the District Court's decision which found that Coles had breached its duty of care to a customer who sustained injuries when she slipped on a piece of a cardboard on the floor of the supermarket and was awarded damages in the sum of $119,024.

Did the plaintiff slip on cardboard?

At trial, Kearn DCJ found that the plaintiff "trod on a piece of cardboard and slipped and was injured".

On appeal in the case Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264, the court was not concerned with how the cardboard came to be on the floor. Rather, the issues on appeal in respect to liability were:

  • Whether the plaintiff slipped on the cardboard
  • Whether small pieces of cardboard are hazardous objects when on vinyl floors

Court of Appeal rejects inference that plaintiff's foot came into contact with cardboard

There was no direct evidence that the plaintiff's foot came into contact with the cardboard or that the cardboard was at any time between the sole of her footwear (thongs) and the surface of the floor. The plaintiff acknowledged that she did not see any cardboard on the floor prior to slipping and it was only when she stood up that she saw two small pieces of cardboard on the floor.

The trial judge drew an inference that the plaintiff's foot had come into contact with the cardboard.

On appeal, the court unanimously held that the fact that two small pieces of cardboard were seen by the plaintiff in the vicinity following her fall did not make it more likely than not that she placed her foot on the cardboard. Accordingly, there was an insufficient basis for the inference drawn by the trial judge.

Plaintiff fails to establish sufficient causal connection between fall and alleged breach of duty of care

The plaintiff relied on an engineer's report to support the contention that the cardboard represented a slip hazard. The engineer did not test the degree of slip resistance of the sole of the thong worn by a person of the plaintiff's weight and the relevant part of the supermarket floor when a small piece of cardboard was between the thong's sole and the surface. Furthermore, the expert did not explain his conclusion that the cardboard reduced the amount of grip between the plaintiff's thongs and the vinyl surface.

The court said that the expert report was of no assistance in deciding whether the risk of injury from slipping on cardboard was "not insignificant" as required by section 5B(1)(b) of the Civil Liability Act 2002 (NSW). The report, expressed without crucial reasoning and testing, was no more than a mere assertion that small pieces of cardboard are hazardous objects when on vinyl floors.

In summary, the plaintiff failed to establish a sufficient causal connection between her fall and the alleged breach of duty of care.

Court of Appeal drastically reduces damages payable to plaintiff

Even if liability had been established, the appeal would have been allowed to the extent of reducing the award for damages. In respect to non-economic loss, the medical evidence indicated that the plaintiff sustained minor soft tissue injuries, however experienced continuing difficulties because of her deconditioned state.

There was evidence that the plaintiff's deconditioned state was due to inactivity following the fall, which could be resolved through physical exercise. The primary judge inferred that the plaintiff was deconditioned at the time of the incident and, as a result, more prone to harmful consequences arising from the fall. He assessed her injuries to be 20% of a most extreme case.

On appeal, the court found that there was no medical evidence in support of this finding. There was no disfigurement, no loss of life expectancy, very minor pain, suffering or loss of amenity and every prospect of an early and complete recovery.

In the event the trial judge's finding had not been overturned, the court considered the plaintiff would have been, at most, 10% of an extreme case. In addition, the court eliminated the award for domestic assistance and reduced the award for economic loss because the findings were not supported by evidence.

Courts will scrutinise expert reports carefully to assess allegations of breach of duty

This decision provides useful commentary on the drawing of inferences when direct proof is not available. It also sends a clear message to plaintiffs' solicitors that when an expert engineer's report is obtained, the court will look at same with a critical eye to ensure there is probative value and appropriate reasoning relating to allegations of breach of duty and causation.

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