HG Insurance & Risk Alert: Another win for supermarkets - 17 February 2015

In a recent decision, the New South Wales Court of Appeal found that a supermarket and flower stall operator were not liable for a customer’s slip and fall injury.

Special Counsel Brooke Jacobs and Solicitor Elizabeth Harvey discuss the decision in Coles Supermarkets Australia Pty Ltd v Bright [2015] NSWCA 17.

The facts

The plaintiff injured her left ankle when she slipped and fell inside a Coles supermarket. The injury occurred in an area of the supermarket next to a flower stall stocked by the Lynch Group.

The plaintiff alleged that her fall was caused by a puddle of water left on the floor by an employee of the Lynch Group who had arranged the flower display approximately 10 minutes before the incident.

She successfully brought claims for negligence against both Coles and the Lynch Group in the NSW District Court.

Both defendants appealed to the Court of Appeal.

The decision

The Court of Appeal overturned the trial judge’s decision, holding that the trial judge’s finding that there was water on the floor before the plaintiff slipped could not be sustained on the evidence presented.

While it was not in dispute that there was water on the ground immediately after the incident, this could be explained by the CCTV footage showing the plaintiff overturning a bucket of flowers as she fell.

The only evidence in support of the floor being wet before the incident was the plaintiff’s belief that she saw skid marks on the ground consistent with her shoe having moved forward through water on the floor. The plaintiff conceded that she did not see any water on the floor until after the fall.

The Court of Appeal reviewed the CCTV footage of events before the incident. They could not see an event which would have caused a spillage on the floor.  They observed that there had been heavy traffic through the area, with no indication that any person noticed or reacted to the presence of water on the floor. The Court of Appeal considered the trial judge had erred in finding that there was water on the floor before the plaintiff fell which led to her accident.

The Court of Appeal observed that, even if there had been water present on the floor before the incident, this would not automatically result in a finding of breach of duty by Coles or the Lynch Group. The obligation is to take reasonable precautions to avoid injury and does not involve a guarantee that no risks will arise.

The Court of Appeal stated that the mere fact of a small spillage did not necessarily entail a finding of a failure to take reasonable care. The trial judge had failed to consider whether Coles or the Lynch Group had discharged their duty.

Based on the factual finding that there was no water on the floor, the Court of Appeal did not need to consider whether Coles and the Lynch Group had taken reasonable care.  However, the leading judgment observed that the evidence demonstrated that Coles “had a perfectly adequate system of inspection” and a “conscientious manager”, and that the Lynch Group employee was also conscientious in identifying and cleaning up such spillage if it occurred.

Key points

  • The duty of care owed by retailers is not to be elevated to a guarantee to provide safe premises; it is a duty to take reasonable precautions;
  • In order to succeed on causation, it is not sufficient for a plaintiff to merely prove that they fell; instead they must demonstrate what caused them to fall on the balance of probabilities;
  • Further, the incident must result from a causative breach of duty by the defendant(s) or a by failure to exercise reasonable care;
  • Retailers can avoid adverse findings by implementing and maintaining reasonable systems of inspection (inspections at 20 minute intervals are usually held to suffice).

For more information or discussion, please contact HopgoodGanim’s Insurance & Risk team.

HopgoodGanim is a legal firm of trusted experts. Founded 40 years ago, the HopgoodGanim of today remains fiercely independent and proud of our sustained growth and ongoing success. We deliver exceptional commercially-focused legal advice to clients throughout Australia and internationally and in addition to our corporate and commercial teams, we also house one of Australia’s most highly regarded family law practices.