The New South Wales Court of Appeal has recently handed down their decision in Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264.

The claimant alleged she slipped on two pieces of cardboard at a Neutral Bay supermarket. However, the claimant could not positively say she stepped on the cardboard. The court found there was insufficient evidence to form an inference the claimant stepped on the cardboard.

It was further found the evidence of the engineer relied on by the claimant was of no assistance in the determinative issue – it failed to address the extent to which the cardboard was a hazard. As a result, it was held the claim failed on causation.

Facts

The claimant alleged two pieces of cardboard were on a shopping centre floor at the time of her fall. She gave differing descriptions of the cardboard. On once occasion she described the cardboard as belonging to boxes the supermarket staff would have used when stocking shelves. At another time, she described one of the pieces of cardboard as resembling a “paddle pop stick”.

It was the claimant’s case the cardboard was left on the floor by employees of Coles when stocking shelves.

At trial, Kearns DCJ accepted, on the balance of probabilities, the pieces of cardboard had been left on the floor by employees of Coles, and the claimant stepped on the cardboard, causing her to fall. It was found the actions of the Coles staff in (1) dropping the cardboard on the floor and (2) failing to remove the pieces of cardboard from the floor was negligent.

The claimant’s evidence at the trial was she did not see the cardboard on the floor prior to her fall. It was when she was picking up the tub of ice-cream she dropped that she noticed the cardboard.

Immediately after the accident she walked to the cash registers to pay for her grocery items. She then left the store. She returned a short time later to report the incident to staff, after discussing accident with her husband.

After reporting the incident to an employee at the counter, the claimant then took the employee to the area where she fell. She states that on examination of the floor two pieces of cardboard were identified. When attending the area on this occasion she recollected noticing one piece of cardboard was in a rectangular shape with a round edge, and the other was a square or rectangular piece. The claimant alleged the Coles employee picked up the pieces of cardboard, examined them, and then placed them back down on the floor.

The Coles employee who attended the site gave evidence that, although he could not recall the particular events, in the event pieces of cardboard were identified on the floor in the supermarket, he would have removed same from the floor surface (rather than placing them back down on the floor).

The claimant’s counsel relied on a report from Mr Fogg, engineer. He was not called to give evidence at the trial. One of the assumptions of the report was that the claimant stepped on a piece of cardboard at the time she fell.

Issues

Barrett JA, who wrote the lead judgment, indicated that where the claimant’s case had been pleaded so that the two relevant issues for the purposes of the appeal were:

  1. whether the claimant slipped on cardboard; and
  2. whether small pieces of cardboard are a material hazard on vinyl floors.

As a result, the issues in the appeal came down to causation rather than breach of duty.

Findings

The Court of Appeal noted the claimant could only assume she stepped on cardboard as she only saw the pieces after the event. There was no direct evidence that she actually stepped on a piece of cardboard. Barrett JA commented:

“The fact that two small pieces of cardboard were seen by the Respondent [claimant] in the vicinity when she got to her feet after falling does not does not endow the first possibility [she stepped on a piece of cardboard] with a greater degree of probability than second [she did not step on a piece of cardboard]. Common experience would not suggest that the Respondents foot landed in one place rather than the other. There is accordingly, an insufficient basis for an inference that the Respondent’s foot came into contact with cardboard on the floor.”

As a result, the Court was not satisfied the presence of any cardboard on the floor had actually contributed to the claimant’s fall – there was insufficient evidence to show the claimant slipped on the cardboard.

Further, Barrett JA was not satisfied the presence of cardboard on the floor created a material hazard. It was found the report of Mr Fogg, engineer, was of little assistance. The report indicated the presence of a piece of cardboard between the sole of a shoe, and a vinyl floor, “reduced the amount of grip available between the vinyl surface and the pedestrian’s footwear.” However, that conclusion was not supported by any meaningful evidence. Mr Fogg had not conducted coefficient of friction tests, and did not provide any evidence as to the decrease in friction caused by any cardboard on the floor (the Court pointed out a decrease in 80% was significantly different to a decrease of 5%).

Where Mr Fogg failed to explain his reasoning that the cardboard was a slip hazard, and provide data to support that conclusion, the court found there was insufficient evidence the any cardboard on the floor was “not insignificant” in terms of being a hazard (as that phrase is used in s 5B(1)(b) of the Civil Liability Act 2002 (NSW)).

Conclusion and Implications

The decision confirms that in circumstances where a claimant has limited recollection of an accident, a Court will not always be willing to make inferences in their favour. There were significant issues with the evidence led for the claimant:

  1. she gave conflicting accounts of whether there was cardboard, or a paddle pop stick, on the floor in the area of the accident;
  2. the claimant could not given evidence as to whether she actually stepped on a foreign object on the floor, and that contributed to the fall;
  3. the claimant’s expert evidence did not include any meaningful data to establish the cardboard or a paddle pop stick on the floor created something more than an “insignificant” risk.

It appears the court did not accept the claimant’s explanation of the accident – they were not persuaded the claimant actually stepped on a piece of cardboard. Although the court accepted the claimant did in fact slip, they were unwilling to infer a piece of cardboard on the floor contributed to the fall.

Although the claimant led expert evidence as to the hazard created by cardboard on lino floors, where the court formed a poor impression of the claimant’s credibility, the court found the expert evidence was of little assistance to the claimant.